                                                                                         04/17/2018

        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 28, 2018

               STATE OF TENNESSEE v. STEVEN SWINFORD

                Appeal from the Criminal Court for McMinn County
                  No. 16-CR-262     Andrew M. Freiberg, Judge
                     ___________________________________

                           No. E2017-01164-CCA-R3-CD
                       ___________________________________


The defendant, Steven Swinford, pled guilty to vandalism of property in the amount of
$1,000 or more but less than $10,000 (Count 1), vandalism of property in the amount of
$10,000 to $60,000 (Count 2), burglary (Count 3), and vandalism of property in the
amount of $60,000 to $250,000 (Count 4), for which he received an effective twelve-year
sentence. The defendant now appeals the twelve-year sentence imposed by the trial court
for his conviction in Count 4, arguing it to be excessive. Separately, the State challenges
the trial court’s application of the criminal saving’s statute of Tennessee Code Annotated
section 39-11-112 to the defendant’s vandalism conviction of Count 1 through the
amended version of the theft statute of Tennessee Code Annotated section 39-14-105.
Following our review, we affirm the trial court’s application of the criminal saving’s
statute to Count 1 and the trial court’s sentencing in Count 4, but remand the case to the
trial court for a hearing on the matter of sentencing as to Counts 1, 2, and 3.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ROBERT L. HOLLOWAY, JR., JJ., joined.

Judith Hamilton, Athens, Tennessee, for the appellant, Steven William Swinford.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Stephen D. Crump, District Attorney General; and Emily Petro,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                                         FACTS

       Over the course of two days in February 2016, the sixteen-year-old defendant
vandalized numerous vehicles across McMinn County, Tennessee. The defendant was
transferred to criminal court where he entered open guilty pleas for his crimes and agreed
to be sentenced subsequently by the trial court. Specifically, on December 5, 2016, the
defendant pled guilty to three counts of vandalism and one count of burglary. Tenn.
Code Ann. § 39-14-402, -408. At the guilty plea hearing, the State read the following
facts surrounding the defendant’s criminal activity into the record:

             Your Honor, beginning with Count One of the indictment: On
      February 20th of 2016, officers with the Etowah Police Department
      responded to a vandalism call on Willard Memorial Highway. When they
      arrived, officers came into contact with a Rovanda Davis who stated that
      someone had broken the windows out of her van. She was an employee at
      the Aztec in Etowah and stated that young white males approximately 16
      years of age had come into her store. One of them had tried to buy a can of
      tobacco. And when they didn’t have -- neither could produce and (sic) ID,
      she sent them away. And she further stated that she was closing the store
      that night, and after she had closed the store, she heard a loud noise outside,
      like someone was beating on the walls of the store. She went outside and
      found the passenger side window of her car and the sliding back window of
      her car had been broken out, apparently with a brick that was nearby. And
      that there was a large dent under the window in [the] sliding glass door of
      her car as well, that all of the windows on the van that were remaining had
      been scratched with what appeared to be a piece of brick. And while she
      didn’t see the actual vandalism take place, shortly before that had
      happened, she had seen two juvenile males that appeared to be the same
      two from the store that were in the vicinity of where her car was at the
      Aztec.

      ...

             The out-of-pocket damage -- the damage was several thousand
      dollars. The out-of-pocket damage that [Ms. Davis] had to pay was $1,000.

      ...



                                           -2-
       Count Two, Your Honor: On February 21st of 2016, deputies with
the McMinn County Sheriff’s Office responded to a call regarding a
vandalism to a tractor belonging to the Etowah Utilities Board that was
parked about a quarter mile past the Wesleyan Church on County Road 607
coming from Highway 30 in McMinn County. The caller, Marty Aderhold,
an employee of the Utilities Board, stated that there were glass and lights
busted out of the tractor and it appeared to be, by vision, almost entirely
destroyed. It was taken for an estimate of the repairs to the Ritchie Tractor
Company, showing a total of $21,427 in damage to the tractor.

...

      The total amount that [Etowah Utilities Board] paid out of pocket
was $1200.

...

       Okay. And then Count Three and Count Four arise out of the same
incident where on the 21st day of February of 2016 detectives with the
McMinn County Sheriff’s Office received a phone call from Scott Cass,
who’s the owner at East Tennessee Auto Outlet, regarding damage to
several vehicles on his car lot. And he asked if deputies could be en route.

       When the detective arrived, he observed numerous vehicles on the
car lot that had [been] vandalized and also a building on the lot that had
been broken into, which had several antique vehicles that were inside that
had also been, essentially, completely destroyed. There was video
surveillance at the property that Mr. Cass supplied to the detectives where
upon reviewing the surveillance from the night prior, you can see two
white, apparently, juveniles that are walking around the car lot, essentially,
busting out windows, kicking vehicles, taking tires and rolling them down
across the parking lot, and using some sort of an object to strike the
windows of vehicles, and the sides of vehicles as well.

       This surveillance footage was put up on Facebook and used through
multiple law enforcement channels. Later identified where (sic) [the
defendant] and [co-defendant] as the two individuals in the video.
Detective Witt reached out to the guardians for [the defendant] and [co-
defendant]. And [the defendant] was interviewed with his guardian present

                                    -3-
      at the McMinn County Sheriff’s Office, advised of his Miranda Rights, and
      agreed to speak further.

             At that time, [the defendant] did admit to his participation in the
      vandalism at the East Tennessee Auto Outlet. Knocking out windows,
      knocking off mirrors, dumping motor oil on the cars, using a pole with [his
      co-defendant] to destroy cars, and that it is the East Tennessee Auto Outlet
      on Highway 30, that it was done. [The defendant] and [co-defendant] were
      pretty much just bored. But they had also gone into the shop on the car lot,
      found older cars in the building, and messed up on them. And he identified
      himself on surveillance video.

              [The defendant] was asked also about the Etowah tractor also
      identified as an incident that happened on the 20th of February, but it was
      not at the same time as the car lot and that he and [his co-defendant] had
      busted out windows, and essentially tore up the tractor that was on County
      Road 607. [The defendant] recalled that it was a green tractor, which is
      consistent with the tractor that was called in by Mr[.] Aderhold with the
      Utilities Board.

             And then finally [the defendant] was asked about Ms. Davis’s
      vehicle that was identified as an incident that occurred on the 19th where
      [the defendant] and [his co-defendant] had gone to the gas station in
      Etowah. That they busted a van window out, and that one of the two
      individuals -- I don’t believe [the defendant] identified it as himself. But
      that one of the two individuals were (sic) trying to get dip and it didn’t
      work, so they got mad and busted the van windows. And this all did occur
      in McMinn County, Tennessee.

             The estimated damage to Mr. Cass’s car lot is kind of -- it’s kind of a
      fluid situation because he continues to have vehicles that are brought in
      with what he believes to be damage that occurred in this original incident, it
      just wasn’t discovered at the time. But that the estimated damage at the
      time of the transfer hearing was approaching $250,000. It was originally
      charged as an A felony, but because of that language, approaching
      $250,000, it was bound over as a B felony, 60 to 250.

       The defendant admitted guilt to the crimes as described by the State, and the trial
court entered convictions for vandalism (Counts 1, 2, 4) and burglary (Count 3) against
the defendant.
                                          -4-
       The defendant’s three victims testified at the subsequent sentencing hearing on
May 12, 2017. Scott Cass, the owner of East Tennessee Auto Outlet, stated he had to put
his business “on hold” after the defendant burglarized and vandalized his property. Mr.
Cass closed his business for “a week or so,” noting “[i]t was at least a week” before
people could safely walk on the property due to the amount of glass left in the
defendant’s wake. Regarding the amount of damages Mr. Cass suffered, he explained,
“right now it stands at somewhere around at $230,000 range. . . . But like I said earlier,
we’ve still got stuff that’s not completed at this point.” Mr. Cass explained the “fluid”
nature of his damages further, stating some of the damage is not identified until a
customer “drives a car and then has it three or four days and then you’ve got the problem
that you never had before.” Mr. Cass’s insurance policy covered approximately
$148,000 worth of damage. A copy of the insurance check was entered into evidence.

       Mr. Cass then explained the damage the defendant caused after burglarizing the
building on his property. Specifically, the building housed his collection of ten antique
cars. The defendant damaged the “[c]hrome, paint, [and] windows” of the antique cars,
destroying the “originality” of the vehicles. Mr. Cass described his property as “a war
zone” after the defendant’s crimes. A surveillance video documenting the defendant’s
criminal activity on Mr. Cass’s property was entered into evidence.

       On cross-examination, Mr. Cass testified that in addition to the $230,000 in losses
already described, he also paid his employees $22,000 for loss of work while the business
was closed for cleaning. In response to questions from the trial court, Mr. Cass stated 71
cars were damaged on his lot of 150 cars, and he believed his total damages to be
approximately $250,000.

       Ravonda Davis then detailed the damage the defendant caused to her van after she
refused to sell him and his co-defendant tobacco. She stated her van “had a dent in the
sliding door that opened. The glass -- the glass in the passenger door was broke (sic).
And the glass in the sliding door was broke (sic). And it had scratches around it on the
windows and had a bad word on the windows.” The damages totaled approximately
$2,000. Ms. Davis explained she “got scared and terrified” as a result of the defendant’s
actions, and she no longer wants to work on Friday nights. Photographs of the damaged
van were entered into evidence.

       Marty Aderhold, a security officer for the Etowah Utility Board, then testified. He
explained the defendant and his co-defendant damaged a tractor owned by the utility
board. Specifically, the defendant and his co-defendant “took something and poked holes
in the radiator. [They] [b]usted all the glass out of the cab, instrument panels, two-way
                                          -5-
radios. They cut some hydraulic lines. [They] [t]ook something and beat the hood and
the headlights and the taillights, everything they could get to they busted, glass wise.”
Etowah Utility Board paid a $1,000 deductible to repair the damage caused by the
defendant, and portions of its operations were “down for a month.” Photographs of the
damaged tractor were entered into evidence.

       Sherry Gaston interviewed the defendant and prepared a pre-sentence report in this
case, which was entered into evidence. Upon interviewing the defendant and making a
risk needs assessment, Ms. Gaston found he “scored out for high for violence” in relation
to his likelihood of re-offending and stated the defendant “was very influenced . . . by
other people.” Ms. Gaston noted the defendant did not have a prior criminal record.

        The parties then stipulated to the entry of the defendant’s recorded interview into
evidence, and the defendant proceeded with his proof. Audrianna Tilley testified that her
family provided “the last foster home that [the defendant] resided in” before his arrest.
Ms. Tilley explained the defendant “was very quiet” at first, but became “very close to
[her] family.” However, when the co-defendant also entered the Tilley home, “it kind of
just unraveled from there,” and she noticed a change in the defendant’s behavior “after
the first night.” Ms. Tilley offered to provide support to the defendant if granted some
form of alternative sentencing.

       Ricky Wilson, the defendant’s Sunday school teacher and the Director of the
Department of Juvenile Services for McMinn County, stated he did not believe the
defendant’s criminal activity was “normal behavior for him.” He opined that with “a
high level” of supervision and a “refrain from other sources of influence,” the defendant
would be able to comply with probation requirements. Chase Bennett, the defendant’s
custodial caseworker for the Tennessee Department of Children’s Service, stated the
defendant has had several foster home placements and “run away charges” throughout his
four years in DCS custody. Since being in DCS custody, the defendant’s longest
placement was with the Tilley family.

      Upon its consideration of the evidence, the trial court sentenced the defendant to
twelve years’ incarceration, and the defendant timely appealed.1

                                             ANALYSIS

       I.        Excessive Sentence.


       1
           The defendant received jail credit from February 21, 2016 through May 12, 2017.
                                                  -6-
       On appeal, the defendant argues the trial court improperly enhanced his sentence
for the Class B felony conviction for vandalism of property in the amount of $60,000 and
$250,000 in damages to the maximum of twelve years. The defendant contends the trial
court failed to properly consider the applicable enhancing and mitigating factors, and
requests “some term” of split confinement. The State asserts the trial court properly
considered the applicable enhancing and mitigating factors before sentencing the
defendant to twelve years’ incarceration. Upon our review, we affirm the twelve-year
sentence of Count 4 to be served in confinement.

       It is well settled that this Court reviews within-range sentences and alternative
sentences imposed by the trial court under an abuse of discretion standard with a
presumption of reasonableness. State v. Bise, 380 S.W. 3d 682, 707 (Tenn. 2012); State
v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). Once the trial court has determined the
appropriate sentencing range, it “is free to select any sentence within the applicable
range.” State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008) (citing Tenn. Code Ann. §
40-35-210 (d)). When determining a defendant’s sentence and the appropriate
combination of sentencing alternatives, trial courts are to consider the following factors:

             (1) The evidence, if any, received at the trial and the sentencing
                hearing;
             (2) The presentence report;
             (3) The principles of sentencing and arguments as to sentencing
                alternatives;
             (4) The nature and characteristics of the criminal conduct involved;
             (5) Evidence and information offered by the parties on the
                mitigating and enhancement factors set out in §§ 40-35-113 and
                40-35-114;
             (6) Any statistical information provided by the administrative office
                of the courts as to sentencing practices for similar offenses in
                Tennessee; and
             (7) Any statement the defendant wishes to make in the defendant’s
                own behalf about sentencing.

Tenn. Code Ann. § 40-35-210 (b). The trial court must state on the record the statutory
factors it considered and the reasons for the ordered sentence. Tenn. Code Ann. § 40-35-
210 (e); Bise, 380 S.W.3d at 705-06. “Mere inadequacy in the articulation of the reasons
for imposing a particular sentence, however, should not negate the presumption [of
reasonableness].” Bise, 380 S.W.3d at 705-06. A trial court’s sentence “should be
upheld so long as it is within the appropriate range and the record demonstrates that the

                                           -7-
sentence is otherwise in compliance with the purposes and principles listed by statute.”
Id. at 709-10.

       The 2005 revised sentencing statutes advise that a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. Carter, 254 S.W.3d at
347 (citing Tenn. Code Ann. § 40-35-102 (6)). Instead, the “advisory” sentencing
guidelines provide that a defendant “who is an especially mitigated or standard offender
convicted of a Class C, D or E felony, should be considered as a favorable candidate for
alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code
Ann. § 40-35-102 (6). However, no criminal defendant is automatically entitled to
probation as a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). Rather,
the defendant bears the burden of proving his or her suitability for alternative sentencing
options. Carter, 254 S.W.3d at 347 (citing Tenn. Code Ann. § 40-35-303 (b)). The
defendant must show that the alternative sentencing option imposed “will subserve the
ends of justice and the best interests of both the public and the defendant.” Hooper v.
State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds, State v. Hooper, 29
S.W.3d 1, 9-10 (Tenn. 2000).

      Before imposing a sentence of full confinement, the trial court should consider
whether:

      (A) Confinement is necessary to protect society by restraining a defendant
          who has a long history of criminal conduct;
      (B) Confinement is necessary to avoid depreciating the seriousness of the
          offense or confinement is particularly suited to provide an effective
          deterrence to others likely to commit similar offenses; or
      (C) Measures less restrictive than confinement have frequently or recently
          been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103 (1)(A)-(C). In addition, the sentence imposed should be
(1) “no greater than that deserved for the offense committed,” and (2) “the least severe
measure necessary to achieve the purposes for which the sentence is imposed.” Tenn.
Code Ann. § 40-35-103 (2), -103 (4). Furthermore, “[t]he potential or lack of potential
for the rehabilitation or treatment of the defendant should be considered in determining
the sentence alternative or length of a term to be imposed.” Tenn. Code Ann. § 40-35-
103 (5). The party appealing a sentence bears the burden of establishing that the sentence
was improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

      Here, the defendant argues the twelve-year sentence imposed by the trial court for
his conviction in Count 4 was excessive. We, however, disagree. At the sentencing
                                           -8-
hearing, the trial court considered the presentence report, the purposes and principles of
sentencing, the evidence presented at the sentencing hearing, the nature and
characteristics of the charged offenses, statistical information, and the applicable
enhancing and mitigating factors. See Tenn. Code Ann. § 40-35-210 (b), (e); Bise, 380
S.W.3d at 705-06. The trial court then addressed on the record the statutory factors it
considered, stating:

             The pre-sentence investigative report was received and considered.
      The two things of note, the fact that there is no known record of other
      criminality, but you did a doozy on this one. That doesn’t usurp or mitigate
      the fact of what was done in this case. The other thing that was extremely
      significant to this [c]ourt, as of January 1[,] I am to consider the results of a
      risks and needs assessment. . . . And you are high risk. The highest there
      is. But most importantly, you’re at a high risk for violence. And this
      [c]ourt thinks that that is striking and remarkable and weighs it significantly
      against you.

              I’ve already gone through the nature and characteristics of this level
      of criminality, which again spans multiple days. Shows a sustained intent
      to violate the law and increases. Really this micro-aggression of not getting
      tobacco, that vandalism, just find the tractor do it, find an entire business
      and just lay ruin to it, it just enhanced and it escalated before you could be
      caught. The idea that this individual is amenable to correction is -- is folly
      in this [c]ourt’s opinion.

              Statistical information provided by the [c]ourt. I took note of that.
      As it relates -- this is a Class B felony, and you’re not presumed eligible for
      probation with a B felony. There’s no presumption that rests in your favor
      on an eight to twelve year range. And the only statement the defendant has
      made about this case is some curt words with a flat affect at time of plea
      and his audio recording, which was admitted, which, again, this [c]ourt
      finds expression of no remorse of any kind.

      ...

             As it relates to mitigating status, this [c]ourt would have to find
      mitigation and no enhancements. And if I were to find that, the [c]ourt in
      its discretion pursuant to 40-35-109, he doesn’t have a prior record,
      certainly no -- but there is enhancements in this case. So therefore related
      to lower release eligibility of lower service of sentence do not apply
                                            -9-
because there is enhancement. I’m going to specifically find 40-35-114
that the damage inflicted to property and sustained by these individuals was
particularly great.

...

        The grand jury decided to indict this as a Class B felony. I’ll just tell
you: I think this is a Class A. I think this was over $250,000. And this
[c]ourt’s decision of incarceration is impacted by what this [c]ourt feels like
by a shade few dollars our law would demand 15 to 25 years mandatory
prison. There would be no discussion of mitigation or corrections or
anything else. And I believe the testimony was $250,000 or more. And the
legislative embodiments that guide this [c]ourt would mean that had it been
indicted differently or been indicted by what I accredit the proof, this would
be a minimum of 15 years prison. No other questions asked. So prison
would be mandated by the level of criminality in this case. You have him
talk about that the 220 to $230,000 in restitution is the is the amount that he
could to date verify. But if you look at value as it’s listed in our definitions
section, 39-11-106 subpart 36, value’s much greater than that. Number
one, his entire business closed for a week. No level related to that.

        Also, the victim’s not been made whole. Not everything is repaired
to date. Classic -- he has been trying, the testimony, reasonable efforts to
obtain replacement costs in the case since February of 2016, which is over
15 months. And he’s not been able to do so. No accounting of how the fair
market value in this case has been diminished by the fact that all of these
vehicles were laid to waste, 70 of the 150 on the lot. There’s been no
accounting in the restitution about how the market value for his classic
vehicles. As it stands now, he can’t even repair them. So that would be
literally almost a total loss from vehicles that he testified have near
priceless totals. Paying people to not do their jobs, but paying them
commission just to be a good man and a good citizen and a good boss.
That was $22,000. He testified, not just in this hearing, but recounted how
he testified under oath at the bench trial, and he said I feel comfortable that
my loss is at least $250,000. He described numerous times how that was
conservative. So once again, I’m going to accredit that testimony and find
this should have been an A felony, which means it should have been
nothing but prison to be considered to begin with.



                                     - 10 -
             But since we are here at a B felony, I’m going to find that that
      enhancement factor weighs much more considerably against you than any
      mitigation. I am going to find mitigation that this criminal neither caused
      nor threatened serious bodily injury. And I’m also going to find a catch-all
      mitigation, which is your age and lack of literal insight into the way the
      world works and society functions as mitigation. But that is substantially
      and severely outweighed by the infliction of damage in this case, which is
      particularly great.

      ...

             But this [c]ourt finds the circumstances of these offenses to be so
      serious, so grave with such a lack of remorse, such apocalyptic, that as it
      relates to eight to twelve, this [c]ourt feels that justice is to impose the
      maximum afforded by law, which is a twelve-year sentence. As I do
      impose over ten years, you’re not eligible for probation. Ten years or less
      pursuant to 40-35-303.

       Upon our review of the record, we agree with the trial court’s assessment of the
enhancing and mitigating factors applied to the defendant’s vandalism conviction of
Count 4. In reaching the twelve-year sentence, the trial court considered the defendant’s
youth and noted his crimes “neither caused nor threatened serious bodily injury.” Tenn.
Code Ann. § 40-35-113 (1), (6). However, the trial court found the defendant’s “level of
criminality shocks the conscience,” and determined the level of damage the defendant
imposed upon Mr. Cass was “particularly great.” Tenn. Code Ann. § 40-35-114 (6).
Further, the trial court held the defendant was not amenable to correction, noting the
defendant demonstrated “no remorse of any kind” and posed “a high risk for violence.”
After considering the above factors, the record shows the trial court weighed the
defendant’s lack of criminal history against his level of criminality against Mr. Cass, and
found the enhancing factors “severely outweighed” the applicable mitigating factors.
Accordingly, it is clear the trial court properly addressed the statutory factors it
considered and the reasons for the ordered sentence before imposing a sentence of twelve
years in confinement for the defendant’s vandalism conviction of Count 4. Tenn. Code
Ann. §§ 40-35-114 (6); -303 (a). The defendant is not entitled to relief as to this issue.

      II.    Failure to Pronounce Sentences in Counts 1, 2, and 3.

      Additionally, our review of the record reveals the trial court failed to separately
sentence the defendant for his convictions in Counts 1, 2, and 3. As evidenced by the
judgment forms, the defendant received an effective sentence of twelve years’
                                          - 11 -
incarceration. Specifically, the judgment forms indicate the trial court imposed a two-
year sentence in Count 1, a six-year sentence in Count 2, a four-year sentence in Count 3,
and a twelve-year sentence in Count 4, all run concurrently to each other. Though the
judgment forms reflect the individual sentences imposed in each conviction, the trial
court failed to articulate the same at the sentencing hearing. Rather, at the hearing, the
trial court pronounced the defendant’s sentence as simply, “12 years TDOC.” The trial
court further stated, “I don’t find that there’s any less restrictive means to achieve justice
in this case than 12 years to serve in the Tennessee Department of Correction, credit for
time served from February 21, 2016 until today’s date.” No further pronouncements
were made by the trial court as to the sentences imposed for Counts 1, 2, and 3.

       As noted above, the trial court must state on the record the statutory factors it
considered and the reasons for the ordered sentence. Tenn. Code Ann. § 40-35-210 (e);
Bise, 380 S.W.3d at 705-06. Further, “[t]he record of the sentencing hearing is part of the
record of the case and shall include specific findings of fact upon which application of
the sentencing principles was based.” Tenn. Code Ann. § 40-35-209 (c). While the trial
court’s sentencing rationale is clear in the record, the trial court failed to articulate the
individual sentences for Counts 1, 2, and 3, and the record is absent a written order
outlining the same. Tenn. Code Ann. § 40-35-210 (a)-(d); see also State v. Gauldin, 737
S.W.2d 795, 798 (Tenn. Crim. App. 1987). Because the trial court failed to comply with
Tennessee Code Annotated section 40-35-210, we must remand this case to the trial court
for a hearing on the issue of sentencing for Counts 1, 2, and 3.

        III.    Application of the Amended Theft Statute to Count 1.

       Independent of our above analysis, the State contends the trial court erroneously
changed the defendant’s vandalism conviction in Count 1 from a Class D felony to a
Class E felony pursuant to Tennessee Code Annotated section 39-11-112, the criminal
saving’s statute.2 The defendant did not address this issue on appeal; however, our


        2
            Regarding whether this issue is properly before this Court, we agree with the reasoning of
another panel of this Court in State v. Keese, wherein we determined the State did not have an appeal as
of right or a statutory right to appeal a trial court’s application of the criminal saving’s statute to a
defendant’s theft conviction. State v. Charles Keese, No. E2016-02020-CCA-R3-CD, __ WL __, (Tenn.
Crim. App., Knoxville, December 19, 2017). The Keese court reasoned the issue presented by the State
contemplated the offense classification system of theft, rather than the applicable sentencing range for
theft and thus, it did not fall under the State’s limited appellate options of Rule 3 of the Tennessee Rules
of Appellate Procedure or Tennessee Code Annotated section 40-35-402. However, in finding the issue
to be one of statutory interpretation rather than sentencing, the Keese court determined the issue to be a
question of law, which could be properly raised by either party after the defendant initiated a timely
appeal. Tenn. R. App. P. 13 (a); see State v. Russell, 800 S.W.2d 169, 171 (Tenn. 1990). Based upon this
                                                  - 12 -
review affirms the trial court’s application of the criminal saving’s statute to the
defendant’s vandalism conviction of Count 1.

       This Court is called to review issues of statutory construction de novo with no
presumption of correctness. State v. Howard, 504 S.W.3d 260, 267 (Tenn. 2016) (citing
State v. Dycus, 456 S.W.3d 918, 924 (Tenn. 2015)). “The most basic principle of
statutory construction is to ascertain and give effect to the legislative intent without
unduly restricting or expanding a statute’s coverage beyond its intended scope.” State v.
Howard, 504 S.W.3d 260, 269 (Tenn. 2016) (quoting Owens v. State, 908 S.W.2d 923,
926 (Tenn. 1995)). The intent of the legislature is determined “from the natural and
ordinary meaning of the statutory language within the context of the entire statute without
any forced or subtle construction that would extend or limit the statute’s meaning.” State
v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). “When the statutory language is clear
and unambiguous, we apply the plain language in its normal and accepted use.”
Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State v. Nelson, 23 S.W.3d
270, 271 (Tenn. 2000)). “It is only when a statute is ambiguous that we may reference
the broader statutory scheme, the history of the legislation, or other sources.” In re Estate
of Davis, 308 S.W.3d 832, 837 (Tenn. 2010) (citing Parks v. Tenn. Mun. League Risk
Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)).

       At work in this appeal is the relationship between the vandalism, theft, and
criminal saving’s statutes found in Tennessee Code Annotated sections 39-11-112, 39-
14-105, and 39-14-408. Regarding the relationship between the three statutes, the State
asserts that within the context of the defendant’s vandalism conviction of Count 1, “[t]he
value of property damaged is a question of fact for the fact finder,” and thus, an element
of the offense. According to the State, “the amended [theft] statute redefined the
essential element of value and assigned offense classifications to the new value ranges.”
As a result, the State argues the criminal saving’s statute does not apply to Count 1
“[b]ecause the amendments to Tenn[essee] Code Ann[otated] [section] 39-14-105 altered
an element of vandalism,” rather than altering the penalty for the offense. We, however,
disagree. Upon our review of the statutes at issue, it is clear the amended theft statute
provides the defendant with a “lesser penalty” for his vandalism conviction, thus
invoking the criminal saving’s statute. Tenn. Code Ann. § 39-11-112.

       Our statutory analysis begins under the general principle that “a criminal offender
must be sentenced pursuant to the statute in effect at the time of the offense.” State v.
Smith, 893 S.W.2d 908, 919 (Tenn. 1994) (citing State v. Reed, 689 S.W.2d 190, 196


reasoning, we, like the Keese court, will address the trial court’s application of the criminal saving’s
statute to the defendant’s vandalism conviction, as raised by the State on appeal.
                                                - 13 -
(Tenn. Crim. App. 1984); 24 C.J.S. Criminal Law, § 1462 (1989)). The exception to this
rule is found in Tennessee Code Annotated section 39-11-112, also known as the criminal
saving’s statute. The exception provides:

                      When a penal statute or penal legislative act of the
              state is repealed or amended by a subsequent legislative act,
              the offense, as defined by the statute or act being repealed or
              amended, committed while the statute or act was in full force
              and effect shall be prosecuted under the act or statute in effect
              at the time of the commission of the offense. Except as
              provided under § 40-35-117, in the event the subsequent act
              provides for a lesser penalty, any punishment imposed shall
              be in accordance with the subsequent act.

Tenn. Code Ann. § 39-11-112 (emphasis added). It is within this context that we review
whether the criminal saving’s statute applies to the defendant’s vandalism conviction of
Count 1 by way of the amended theft statute found in Tennessee Code Annotated section
39-14-105.

       In Count 1, the defendant was indicted under the vandalism statute of Tennessee
Code Annotated section 39-14-408. Per statute, “[a] person commits the offense of
vandalism who knowingly: [c]auses damage to or the destruction of any real or personal
property of another . . . knowing that the person does not have the owner’s effective
consent;” or “[d]amages merchandise offered for retail sale by a retail merchant.” Tenn.
Code Ann. § 39-14-408 (b)(1), (b)(3). The statute orders a trial court to impose
punishment for vandalism under the theft statute, stating: “[a] person violating
subdivision (b)(1) or (b)(3) is a principal under § 39-11-401 and shall be punished as for
theft under § 39-14-105, after determining value under § 39-11-106.” Tenn. Code Ann. §
39-14-408 (c)(1) (emphasis added). Tennessee Code Annotated section 39-11-106
defines “value” as “[t]he fair market value of the property or service at the time and place
of the offense,” or “[i]f the fair market value of the property cannot be ascertained, the
cost of replacing the property within a reasonable time after the offense.” Tenn. Code
Ann. § 39-11-106 (36)(A)(i), (ii). Thus, value is a separate consideration from the
penalty imposed under the vandalism statute. Tenn. Code Ann. § 39-14-408 (c)(1).

       We now turn to whether the exception outlined above applies to the defendant’s
vandalism conviction through the amended theft statute. At the time of the defendant’s
crimes and convictions, Tennessee Code Annotated section 39-14-105 defined theft
offenses and their correlating felony classification by the value of damages levied by a
defendant’s criminal activity. The theft statute provided:
                                           - 14 -
        (a) Theft of property or services is:

        ...

        (2) A Class E felony if the value of the property or services obtained is
        more than five hundred dollars ($500) but less than one thousand dollars
        ($1,000);

        (3) A Class D felony if the value of the property or services obtained is one
        thousand dollars ($1,000) or more but less than ten thousand dollars
        ($10,000)[.]

Tenn. Code Ann. § 39-14-105 (a)(2), (a)(3). However, the Public Safety Act of 2016
amended the valuation and offense classification system for theft. 2016 Pub. Acts, c.
906. The amended theft statute provides:

        (a) Theft of property or services is:

        ...

        (2) A Class E felony if the value of the property or services obtained is
        more than one thousand dollars ($1,000) but less than two thousand five
        hundred dollars ($2,500);

        (3) A Class D felony if the value of the property or services obtained is two
        thousand five hundred dollars ($2,500) or more but less than ten thousand
        dollars ($10,000)[.]

Tenn. Code Ann. § 39-14-105 (a)(2), (a)(3) (2017). Accordingly, after the amendment, a
theft resulting in damages between $1,000 and $2,500 shifted from a Class D felony to a
Class E felony.3

      Looking to the normal and ordinary meaning of the statutory language, the
vandalism statute specifically provides that “after determining value,” the defendant
        3
           We also note, Tennessee Code Annotated section 39-14-103 outlines the general elements of
theft, providing: “A person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s effective consent.”
Tenn. Code Ann. § 39-14-103 (a).

                                                  - 15 -
“shall be punished as for theft under § 39-14-105.” Tenn. Code Ann. § 39-14-408 (c)(1)
(emphasis added). The Sentencing Commission Comments make clear that the theft
statute at issue is, in effect, a sentencing statute, explaining the statute “provides the
punishment for the offenses of theft. These offenses are punished according to the value
of the property or services obtained.” Tenn. Code Ann. § 39-14-105, Sentencing
Comm’n Comm’t (emphasis added). The comments further note that “[v]alue is defined
in § 39-11-106.” Id. Thus, the theft statute is applicable to a defendant who has
committed vandalism at the punishment phase.

        In Count 1, the defendant was indicted for the Class D felony of vandalism of
property in the amount of $1,000 and $10,000 for his actions committed on February 20,
2016. Tenn. Code Ann. § 39-14-408. On December 5, 2016, the defendant pled guilty to
the same. As explained above, prior to the entry of judgment against the defendant, our
legislature amended Tennessee Code Annotated section 39-14-105 to reflect a change in
the offense classification system of theft, and in turn vandalism. The amended version of
Tennessee Code Annotated section 39-14-105 went into effect on January 1, 2017.

       At the sentencing hearing on May 12, 2017, the State offered testimony from the
victim in Count 1, Ms. Davis, who stated the defendant inflicted $2,000 in damages on
her van. Tenn. Code Ann. § 39-11-106. As such, the punishment applicable to the
defendant’s vandalism conviction in Count 1 moved from a Class D felony to a Class E
felony under the amended theft statute. Tenn. Code Ann. § 39-14-105 (a)(2). Though
the defendant committed the vandalism of Count 1 before the legislature amended the
theft statute, because the amended theft statute provided for a “lesser penalty,” the
criminal saving’s statute applied to the defendant’s conviction. Tenn. Code Ann. § 39-
11-112. Accordingly, the trial court appropriately sentenced the defendant for a Class E
felony in Count 1 after applying the criminal saving’s statute to the conviction.

                                    CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the twelve-year
sentence imposed in Count 4, but remand this cause to the trial court for a hearing to
include findings of fact as to the reasons for the ordered sentences in Counts 1, 2, and 3.
We further direct the trial court to apply the criminal saving’s statute to the defendant’s
conviction in Count 1.



                                             ____________________________________
                                             J. ROSS DYER, JUDGE

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