         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 January 24, 2012 Session

         STATE OF TENNESSEE v. CHRISTOPHER KENNEDY


                Direct Appeal from the Circuit Court for Sevier County
                        No. 13713-III Rex Henry Ogle, Judge




                  No. E2011-00769-CCA-R3-CD - Filed June 12, 2012


The Defendant, Christopher Kennedy, pled guilty to aggravated sexual battery in exchange
for a sentence of nine years to be served at 100%, followed by community supervision for
life. After his release for that conviction, the Defendant was indicted for violating a
condition of his community supervision. The Defendant filed a motion to declare Tennessee
Code Annotated sections 39-13-524 through 526 unconstitutional “and/or” seek habeas
corpus relief. After hearing the motion, the trial court granted relief, finding that Tennessee
Code Annotated sections 39-13-524 through 526 violate double jeopardy protections. The
State filed a timely notice of appealed. The Defendant cross appeals, asserting: (1) the
community supervision for life statute is unconstitutional; and (2) the conditions for lifetime
supervision established by the Board of Probation and Parole are void as the conditions are
not enacted pursuant to the Uniform Administrative Procedures Act. Upon a review of the
record, we conclude that the trial court improperly declared Tennessee Code Annotated
sections 39-13-524 through 526 unconstitutional and that the trial court properly dismissed
the remaining issues. Accordingly, we vacate the judgment of the trial court in part and
affirm in part, and remand for further proceedings consistent with this opinion.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in
                      Part, Affirmed in Part, and Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R. and JEFFREY S. B IVINS, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney


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General; James Dunn, District Attorney General; and Barry A. Williams, Assistant District
Attorney General, for the appellant, State of Tennessee.

Edward C. Miller, Dandridge, Tennessee for the appellee, Christopher Kennedy.


                                         OPINION

                             I. Facts and Procedural History

       On February 14, 2001, the Defendant agreed to plead guilty to aggravated sexual
battery in exchange for a nine-year sentence to be served at 100%, followed by community
supervision for life. The judgment form includes the following in the “Special Conditions”
box:

       TO BE SERVED.    ORDER TO SUBMIT SPECIMEN FOR DNA
       ANALYSIS.   PURSUANT TO TCA 39-13-524 DEFENDANT IS
       SENTENCED TO COMMUNITY SUPERVISION FOR LIFE FOLLOWING
       EXPIRATION OF SENTENCE.

       After his release from prison, a Sevier County grand jury issued an indictment on
November 13, 2008, charging the Defendant with violating a condition of community
supervision. The Defendant filed a motion, on March 17, 2009, entitled “MOTION TO
DECLARE 39-13-524-526 UNCONSTITUTIONAL AND/OR FOR A WRIT OF
HABEOUS [sic] CORPUS REMOVING THE DEFENDANT FROM COMMUNITY
SUPERVISION FOR LIFE.” In this motion, the Defendant asserted that the community
supervision for life statutes violate the Due Process Clause, the Equal Protection Clause, the
Free Exercise of Religion as guaranteed by the First Amendment, the Separation of Powers
Doctrine, and the Double Jeopardy Clause. Further, he claimed that the lifetime supervision
conditions established by the Board of Probation and Parole were void because they were not
enacted pursuant to the Tennessee Administrative Procedures Act.

        After several hearings on the motion, the trial court granted the Defendant relief,
finding that Tennessee Code Annotated sections 39-13-524 through 39-13-526 violate the
double jeopardy clauses of the United States and Tennessee constitutions. In its written
order, the trial court stated the following:

       Contrary to the argument of the State Attorney General that [Community
       Supervision For Life (“CSFL”)] could not be a violation of the Double
       Jeopardy Provisions because it was a collateral consequence, the Tennessee

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       Supreme Court held in [Ward] [ ] that it is not a collateral consequence but
       rather a direct and punitive consequence. This court is of the opinion that if
       CSFL is a direct and punitive consequence then the notions of double jeopardy
       are violated. The court also finds that the remaining . . .grounds that are
       alleged in the petition are without merit.

The trial court ordered that the indictment be dismissed and the Defendant no longer be
subject to community supervision for life. The trial court also found that the other claims
presented by the Defendant in his motion lacked merit. It is from this judgment that both the
State and the Defendant appeal.

                                         II. Analysis

       On appeal, the State asserts that the trial court erred in granting habeas corpus relief
and finding that Tennessee Code Annotated sections 39-13-524 through 526 violate the
double jeopardy clauses of the federal and state constitutions. The Defendant, on cross
appeal, raises constitutional challenges to the statute and argues that the conditions
established by the Tennessee Board of Probation and Parole are void as they were not
enacted pursuant to the Uniform Administrative Procedures Act.

        As a preliminary matter, we must first address the ambiguous nature of the petition
heading: “MOTION TO DECLARE 39-13-524-526 UNCONSTITUTIONAL AND/OR FOR
A WRIT OF HABEOUS [sic] CORPUS REMOVING THE DEFENDANT FROM
COMMUNITY SUPERVISION FOR LIFE.” The State argues that the Defendant is not
entitled to habeas corpus relief because his petition “falls grossly short” of statutory
requirements for petitions for the writ of habeas corpus, and the petition does not state a
cognizable habeas corpus claim. The Defendant responds that the trial court did not grant
habeas corpus relief. He contends that the “and/or” removes his petition from habeas corpus
consideration and the trial court addressed only his request to declare the statutes
unconstitutional. We acknowledge that strategically, this position allows the Defendant to
avoid case law holding double jeopardy violations are generally not appropriately raised in
petitions seeking the writ of habeas corpus. See Ralph Phillip Claypole v. State, No.
M1999-02591-CCA-R3-PC (Tenn. Crim. App., at Nashville, May 16, 2001), no Tenn. R.
App. 11 application filed (a double jeopardy claim is not cognizable in a habeas corpus
proceeding); see also Smith v. Hesson, 63 S.W.3d 725, 728 (Tenn. Ct. App. 2001) (claims
regarding violation of due process and equal protection do not state colorable claims for
habeas corpus relief). Although, we agree with the State that the petition does not meet the
strict habeas corpus requirements, we find it unnecessary to address habeas corpus issues




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because we conclude that the statutes at issue are constitutional, and this conclusion is
dispositive of this appeal.

                                    A. Double Jeopardy

       The State asserts that the trial court erred in holding Tennessee Code Annotated
sections 39-13-524 through 526 violate double jeopardy. We agree.

        The Double Jeopardy Clause protects (1) against a second prosecution for the same
offense after acquittal, conviction, or other trial resolution not caused by manifest necessity
and (2) against multiple punishments for the same offense. See North Carolina v. Pearce,
89 S. Ct. 2072, 2076 (1969); United States v. Johnson, 584 F.2d 148, 153 (6th Cir.1978),
cert. denied, 440 U.S. 918 (1979). When the issue, as in this case, relates to the imposition
of multiple punishments and not to successive prosecutions, the analysis focuses completely
upon determining whether the legislature intended that multiple punishments could be
imposed for the same conduct. See, e.g., Missouri v. Hunter, 103 S. Ct. 673, 679 (1983);
Albernaz v. United States, 101 S. Ct. 1137, 1143 (1981).

      A sentence of community supervision for life for certain enumerated crimes is
provided for in Tennessee Code Annotated section 39-13-524 as follows:

       (a) In addition to the punishment authorized by the specific statute prohibiting
       the conduct, any person who, on or after July 1, 1996, commits a violation of
       § 39-13-502 [aggravated rape], § 39-13-503 [rape], § 39-13-504 [aggravated
       sexual battery], § 39-13-522 [rape of a child], or attempts to commit a
       violation of any of these sections, shall receive a sentence of community
       supervision for life.

       (b) The judgment of conviction for all persons to whom the provisions of
       subsection (a) apply shall include that the person is sentenced to community
       supervision for life.

       (c) The sentence of community supervision for life shall commence
       immediately upon the expiration of the term of imprisonment imposed upon
       the person by the court or upon the person’s release from regular parole
       supervision, whichever first occurs.

       (d)(1) A person on community supervision shall be under the jurisdiction,




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       supervision and control of the board of probation and parole in the same
       manner as a person under parole supervision. The board is authorized on an
       individual basis to establish such conditions of community supervision as are
       necessary to protect the public from the person’s committing a new sex
       offense, as well as promoting the rehabilitation of the person.

       (2) The board is authorized to impose and enforce a supervision and
       rehabilitation fee upon a person on community supervision similar to the fee
       imposed by § 40-28-201. To the extent possible, the board shall set the fee in
       an amount that will substantially defray the cost of the community supervision
       program. The board shall also establish a fee waiver procedure for hardship
       cases and indigency.

T.C.A. § 39-13-524 (2010).

       We respectfully disagree with the finding of the trial court that Tennessee Code
Annotated section 39-13-524 through 526 violate double jeopardy protections. The first
words of the Community Supervision for Life statutes are “In addition to the punishment
authorized by the specific statute prohibiting the conduct . . . .” Id. (emphasis added). These
words clearly reflect the legislature’s intent to create a statutorily authorized punishment.

      We also find no support in Ward v. State. 315 S.W.3d 461 (Tenn. 2010), for the
Defendant’s contention that the statutes providing for community supervision for life violate
double jeopardy. In Ward, the defendant claimed that his plea was not knowing and
voluntary because the trial court failed to advise him of the mandatory sentence of
community supervision for life in addition to his incarceration. Ward, 315 S.W.3d at 463-64.
Our Supreme Court concluded that:

       the mandatory sentence of lifetime supervision imposed in addition to other
       statutorily authorized punishment is a direct and punitive consequence of a
       plea of guilty to the crimes enumerated in Tennessee Code Annotated section
       39-13-524(a). Consequently, trial courts have an affirmative duty to ensure
       that a defendant is informed and aware of the lifetime supervision requirement
       prior to accepting a guilty plea.

Ward, 315 S.W.3d at 476. Here, our Supreme Court specifically noted that supervision for
life is imposed “in addition to other statutorily authorized punishment.” Id.



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        In the Defendant’s case, we are not dealing with two punishments for the same
offense. Pursuant to a plea agreement, the Defendant’s sentence for aggravated sexual
battery consisted of a prison sentence to be followed by lifetime community supervision. In
his brief, the Defendant also asserts that community supervision for life violates principles
of double jeopardy because it provides for subsequent prosecution for the same offense after
conviction. The recent indictment against the Defendant, however, alleges a new crime of
violating the Defendant’s lifetime community supervision. If convicted, he may be punished,
but the punishment will be for violating lifetime community supervision, not for committing
aggravated sexual battery. Therefore, the Defendant’s indictment for violating a condition
of community supervision for life is not a subsequent prosecution for the same offense.
Accordingly, we reverse the trial court’s grant of relief on the basis that Tennessee Code
Annotated sections 39-13-524 through 526 violate double jeopardy protections, and remand
this case for further proceedings consistent with this opinion.

                               B. Constitutional Challenges

       The trial court dismissed the other claims the Defendant presented in his petition. On
cross appeal, the Defendant asserts multiple constitutional claims, some of which vary from
those he presented to the trial court. As our role is to review the trial court, we address only
the claims raised before the trial court. The Defendant claimed that the statutes providing
for community supervision for life violate: (1) the separation of powers doctrine by
impermissibly vesting a purely legislative power in an executive branch agency of the
government, the Tennessee Board of Probation and Parole; (2) the Defendant’s right to
freedom of religion, because one of the conditions imposed upon the Defendant prevents him
from attending church because churches “offer classes, ministries, choirs and activities for
children;” and (3) due process, because the statute is void for vagueness for failing to detail
the conditions of supervision.

       Statutes are presumed to be constitutional. Gallaher v. Elam, 104 S.W.3d 455, 459
(Tenn. 2003); State v. Robinson, 29 S.W.3d 476, 479 (Tenn. 2000); Riggs v. Burson, 941
S.W.2d 44, 51 (Tenn. 1997). Courts are charged with upholding the constitutionality of
statutes whenever possible and are required to indulge every presumption and resolve every
doubt in favor of the constitutionality of a statute when reviewing it for possible
constitutional infirmity. State v. Lyons, 802 S.W.2d 590, 592 (Tenn. 1990).

        The Defendant asserts that the relevant statutes improperly delegate legislative powers
to a department within the executive branch. In general, “legislative power” is “the authority



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to make, order, and repeal law.” Id. The General Assembly may not delegate power that is
“purely legislative.” State v. Edwards, 572 S.W.2d 917, 919 (Tenn. 1978); see also
Chattanooga–Hamilton County Hosp. Auth. v. Chattanooga, 580 S.W.2d 322, 328 (Tenn.
1979). Therefore, the General Assembly may not delegate to an executive branch agency the
exercise of the legislature’s discretion as to what the law shall be. See Dep't of Pub. Welfare
v. Nat’l Help “U” Ass’n, 270 S.W.2d 337, 339 (1954). However, the General Assembly may
delegate to an administrative agency the authority to implement the expressed policy of
particular statutes. See Edwards, 572 S.W.2d at 919. A grant of such authority may include
the power to promulgate rules and regulations that have the effect of law in the agency’s area
of operation. See Bean v. McWherter, 953 S.W.2d 197, 199 (Tenn. 1997). Because the
enactment of reasonable rules and regulations is administrative in character, it does not
amount to the exercise of a legislative function, despite the agency’s exercise of discretion.
See Tasco Developing & Bldg. Corp. v. Long, 368 S.W.2d 65, 68–69 (1963); see also INS
v. Chadha, 462 U.S. 919, 953 n. 16 (1983) (noting that rulemaking by administrative
agencies resembles lawmaking). The Tennessee Legislature determines the elements of all
crimes, as is the case with the Defendant’s aggravated sexual battery charge. For a
conviction, these elements must be proven by the State and found beyond a reasonable doubt
by the trier of fact, or admitted by a defendant during a guilty plea. The role of the Board of
Probation and Parole is to determine and administer conditions of release, which does not
amount to the determination of the elements of a crime. Therefore, we conclude that no
violation of the Separation of Powers doctrine is present here.

       The Defendant next claims that the relevant statutes are unconstitutional because they
violate his First Amendment right to the free exercise of religion by restricting his church
attendance. This allegedly unconstitutional restriction is found in the conditions of
Community Supervision for Life authorized by the Board of Probation and Parole. The
specific condition attacked by the Defendant reads as follows:

       I will only work or volunteer for businesses, organization[s] or activities
       approved by my treatment provider and my Officer. I am prohibited from any
       business, organization or activity which provides services or care to children
       under 18 or persons unable to give consent due to mental, physical or
       emotional limitations, or any other area or activity determined to be off-limits
       by my Officer, including but not limited to:

          a.      Schools
          b.      School, church or youth buses or bus stops



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          c.    Girl or Boy Scouts, clubs, or similar organizations
          d.    Day care centers or private babysitting or child care
          e.    Religious classes, ministries, choirs and activities for children
                under 18 years of age.
          f.    Sports or leisure activities for children under 18 years of age.
          g.    Parks, playgrounds, public swimming pools
          h.    Arcades and amusement parks
          I.    Loitering near public restrooms
          j.    Any establishment whose primary purpose is the sale of alcohol.
          k.    Other:
          waived by Board for (state letter or ALL)                date

        The Defendant’s issue involves the constitutionality of a condition authorized by the
Board of Probation and Parole rather than a provision of the Community Supervision for Life
statute. As such, judicial review of any state administrative decision must begin with the
Uniform Administrative Procedures Act. T.C.A. § 4-5-101 - 324 (2003). The Uniform
Administrative Procedures Act, however, explicitly excludes from the contested case and
judicial review provisions any decisions made by and actions taken by the Board of Probation
and Parole. T.C.A. § 4-5-106(c) (2003). Therefore, the common-law writ of certiorari serves
as the proper procedural vehicle for review of decisions by parole eligibility review boards
and other similar administrative tribunals. Willis v. Tenn. Dep’t of Correction, 113 S.W.3d
706, 712 (Tenn. 2003). The Defendant has not requested that this Court exercise its authority
to grant a common-law writ of certiorari in this case. Nor do we believe, based on this
record, that the common-law writ is an appropriate vehicle to address the Defendant’s claim.
Thus, the trial court properly dismissed the Defendant’s claim pertaining to the
constitutionality of conditions imposed pursuant to Tennessee Code Annotated section 39-
13-524, and authorized by the Tennessee Board of Probation and Parole.

        We note, however, that the Defendant’s claim that the condition “essentially forbids
the Defendant from exercising his 1st amendment rights to freedom of religion and freedom
of assembly,” is an overly broad statement of the restrictions of this condition. The law is
clear that, even though a condition of probation may limit a defendant’s rights, it may be
appropriate nonetheless. United States v. Peete, 919 F.2d 1168, 1181 (6th Cir. 1990)
(“Probation restrictions may affect fundamental rights such as freedom of speech and
freedom of association if the conditions are primarily designed to meet the ends of
rehabilitation and protect the public.”); Commonwealth v. LaPointe, 759 N.E.2d 294, 298
(Mass. 2001) (“A probation condition is enforceable, even if it infringes on a defendant’s



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ability to exercise constitutionally protected rights, so long as the condition is ‘reasonably
related’ to the goals of sentencing and probation.”); Purdy v. State, 708 N.E.2d 20, 23 (Ind.
Ct. App. 1999) (“[T]hose impingements [of a probationer’s constitutionally protected rights]
must be designed to accomplish the explicit goals of protecting the community and
promoting the probationer’s rehabilitation process.”). Our review of the condition reveals
that the Defendant is prohibited from “working or volunteering” for a business, organization
or activity that serves children. In our view, the provisions and conditions of supervision,
about which the Defendant complains in this appeal, are reasonably related to and primarily
designed to meet the goal of protecting children from the Defendant. Furthermore, the
written conditions provide for the possibility of a waiver of this condition under appropriate
circumstances. Although the provision complained of does limit the Defendant, it does not
broadly preclude all church attendance.

       Finally, the Defendant claims that the statutes are unconstitutional because they are
void for vagueness since they fail to specify the conditions of supervision. “A statute is void
for vagueness if it is so vague, indefinite, and uncertain that persons must speculate as to its
meaning, and if it fails to give a person of ordinary intelligence fair notice that his or her
conduct is forbidden by the statute.” State v. Whaley, 982 S.W.2d 346, 348 (Tenn. Crim.
App. 1997). “The vagueness doctrine does not invalidate every statute which a reviewing
court believes could have been drafted with greater precision.” State v. Lyons, 802 S.W.2d
590, 592 (Tenn. 1990). Here, the relevant statute clearly establishes the prohibited conduct,
and that the Defendant would be placed under the Board of Probation and Parole’s
supervision for life.

       Accordingly, the trial court did not err when it dismissed the Defendant’s remaining
constitutional challenges to Tennessee Code Annotated § 39-13-524 through 526. The
Defendant is not entitled to relief as to these issues.

                       C. Uniform Administrative Procedures Act

       The Defendant also asserts that the conditions established by the Tennessee Board of
Probation and Parole are void as they are not enacted pursuant to the Uniform Administrative
Procedures Act.

       The Uniform Administrative Procedures Act explicitly excludes, from the contested
case and judicial review provisions, decisions made by and actions taken by the Tennessee
Board of Probation and Parole. See T.C.A. § 4-5-106(c) (2003). The Legislature’s intention



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for the Board of Probation and Parole to determine and administer the conditions of
community supervision is clearly stated in Tennessee Code Annotated section 39-13-
534(d)(1) and (2). Accordingly, the trial court correctly dismissed this claim by the
Defendant. As such, the Defendant is not entitled to relief.

                                      III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we conclude that
the trial court erred when it declared Tennessee Code Annotated sections 39-13-524 through
526 unconstitutional. Thus, we vacate the trial court’s judgment and remand for proceedings
consistent with this opinion. As to the trial court’s denial of relief to the Defendant on all
remaining grounds, we affirm the judgment of the trial court.


                                                   _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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