                                                                                           04/11/2018
                 IN THE SUPREME COURT OF TENNESSEE
                             AT JACKSON
                               November 8, 2017 Session

             STATE OF TENNESSEE v. CHRISTOPHER MINOR

              Appeal by Permission from the Court of Criminal Appeals
                         Circuit Court for Madison County
                       No. 15-167 Roy B. Morgan, Jr., Judge
                      ___________________________________

                            No. W2016-00348-SC-R11-CD
                       ___________________________________


SHARON G. LEE, J., concurring.

       Christopher Minor was sentenced to serve additional time in prison for violations
of the criminal gang offense statute, Tennessee Code Annotated section 40-35-121(b)
(2014). While his case was on appeal, the Court of Criminal Appeals in State v. Bonds,
502 S.W.3d 118, 157 (Tenn. Crim. App. 2016), declared that a portion of the criminal
gang offense statute was unconstitutional. Today, the Court vacates Mr. Minor’s
convictions for violating the criminal gang offense statute. It is only fair that Mr. Minor
should not have to serve additional time in prison for violating a statute that an appellate
court declared unconstitutional while his appeal was pending.

        Here, the Court reaches the right result, but does not go far enough. In the interest
of fairness and justice, I would go a step further, as did the United States Supreme Court
in Henderson v. United States, 568 U.S. 266 (2013) and hold that an appellate court,
when determining whether a defendant is entitled to plain error relief, should apply the
law in effect at the time of its review. A defendant’s fate should not depend on whether
the law was settled or unsettled at the time of trial.

       We should adopt the ruling in Henderson for a number of reasons. It is a
well-reasoned decision and firmly grounded in longstanding principles of appellate
jurisprudence. As the Henderson Court noted, as early as 1801, Chief Justice John
Marshall wrote that appellate courts must apply the law in effect at the time of review,
even if the law changes between the time of trial and appeal. Id. at 271 (quoting United
States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801)).

       The Henderson ruling advances the fairness function of the plain error doctrine by
treating similarly situated defendants the same. It simplifies appellate practice by sparing
lawyers and judges the “temporal ping-pong” that results from focusing on the law at the
time of trial—law that changes after trial and may be obsolete by the time of appeal. Id.
at 273–74. By simplifying appellate processes, the Henderson approach is consistent with
the overriding purpose of the Rules of Appellate Procedure in Tennessee. See Tenn. R.
App. P. 1 (instructing that the appellate rules “shall be construed to secure the just,
speedy, and inexpensive determination of every proceeding on its merits”).

       The Henderson ruling is consistent with our plain error doctrine, as reflected in the
language of Tennessee Rule of Appellate Procedure 36(b). This Rule addresses itself to
appellate courts and places no limitations on the general rule that appellate courts apply
the law existing at the time of review. “When necessary to do substantial justice, an
appellate court may consider an error that has affected the substantial rights of a party
at any time, even though the error was not raised in the motion for a new trial or
assigned as error on appeal.” Tenn. R. App. P. 36(b) (emphasis added). By not altering
the generally applicable rule, Rule 36(b) contemplates that the question of whether a clear
and unequivocal rule of law has been breached will be answered by reference to the law
existing at the time of appeal.

       The Henderson approach does not incentivize sandbagging at trial because “it is
normally to the advantage of counsel and his client to get the error speedily corrected.”
568 U.S. at 276. Even assuming an attorney or a party would unwisely choose not to raise
an issue at trial hoping to gain relief via the plain error doctrine, the criteria necessary to
obtain such relief and the principle that appellate courts “sparingly exercise[]” their
authority to grant such relief, State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007)
(quoting Tenn. R. App. P. 13(b) cmt.), are entirely sufficient to prevent sandbagging and
to safeguard appellate review preservation requirements.

       The Henderson ruling neither threatens the integrity of trial proceedings nor casts
aspersions on the performance of trial judges. As the Henderson Court emphasized, the
plain error doctrine does not function (and never has been intended to function) as “a
grading system for trial judges.” 568 U.S. at 278. Rather, it serves the broader purpose of
advancing fairness and judicial integrity. Id.

       The adoption of Henderson makes sense. Tennessee would join many other
jurisdictions that have adopted this approach, some of which adopted it before the United
States Supreme Court’s ruling in Henderson. See Wills v. United States, 147 A.3d 761,
772 (D.C. 2016) (“We assess plainness in light of the state of the law at the time of
appellate review, not the state of the law at the time of trial.”); Lyman v. State, 800 S.E.2d
333, 338 (Ga. 2017) (holding that when an appellate court conducts plain error review, it
applies the law as of the time of the appellate court’s review); State v. Maharaj, 317 P.3d
659, 661 (Haw. 2013) (citing Henderson and explaining that courts should consult the
law at the time of appeal); State v. Kelley, 855 N.W.2d 269, 277 (Minn. 2014) (holding

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that for purposes of applying the plain error doctrine, the court examines the law in
existence at the time of appellate review, not the law in effect at the time of the trial
court’s error, to determine whether an error is plain); State v. Jury, 57 P.3d 970, 973 (Or.
Ct. App. 2002) (en banc) (“[W]e have consistently, albeit implicitly, defined ‘plain error’
by reference to the law existing at the time the appeal is decided.”); State v. Marple, 475
S.E.2d 47, 53 (W. Va. 1996) (holding that “plain error” is error that is clear and
uncontroverted at the time of appeal).

        In Henderson, the Court of Appeals for the Fifth Circuit had not decided at the
time of the defendant’s sentencing hearing whether federal sentencing statutes authorized
district courts to impose upward departure sentences to aid defendants in becoming
eligible for rehabilitation programs, although other federal appellate courts had disagreed
on the issue. Similarly, in this case, no Tennessee court had addressed the
constitutionality of the criminal gang offense statute at the time of the defendant’s trial
and sentencing hearing, although a Florida court had declared a similar Florida statute
unconstitutional. See State v. O.C., 748 So. 2d 945 (Fla. 1999). In both Henderson and
this case, the relevant issues were not definitively resolved for the first time until the
defendants’ cases were pending on appeal. Any other factual distinctions between this
appeal and Henderson are not sufficient to justify declining to adopt Henderson.

       Adopting the Henderson approach would serve the interest of fairness to the
parties, clarity in the law, and conservation of judicial resources. This Court asked the
parties to brief and argue Henderson, and the parties did so. In four previous appeals, we
declined to accept or reject Henderson. See State v. Perrier, 536 S.W.3d 388, 405–06
(Tenn. 2017); State v. Walls, No. M2014-01972-SC-R11-CD, 2017 WL 5185506, at *7
n.5 (Tenn. Nov. 9, 2017); State v. Martin, 505 S.W.3d 492, 508 (Tenn. 2016); State v.
Fayne, 451 S.W.3d 362, 372 n.6 (Tenn. 2014). It is time we decide this issue. We should
not stop short.

       For all these reasons, I would adopt as the law in Tennessee the United States
Supreme Court’s ruling in Henderson v. United States. I otherwise concur in the Court’s
analysis and in the result reached.



                                                  _________________________________
                                                  SHARON G. LEE, JUSTICE




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