        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 18, 2010

          STATE OF TENNESSEE v. CALVIN DEMETRIUS SHAW

               Direct Appeal from the Circuit Court for Maury County
                        No. 18013     Stella Hargrove, Judge




                No. M2009-01568-CCA-R3-CD - Filed March 14, 2011


A Maury County Circuit Court jury convicted the appellant, Calvin Demetrius Shaw, of
simple possession of cocaine, a Class A misdemeanor. During a sentencing hearing, the trial
court determined that the appellant had two prior convictions for simple possession and
sentenced him to twenty months in confinement for simple possession as a Class E felony
pursuant to Tennessee Code Annotated section 39-17-418(e). On appeal, the appellant
contends that the trial court erred by sentencing him for a Class E felony when the jury found
him guilty of a misdemeanor and that Tennessee Code Annotated section 39-17-418(e) is
unconstitutional because it allows for enhanced punishment without prior notice. The State
concedes that the trial court improperly sentenced the appellant for a Class E felony. We
agree and conclude that the case should be remanded to the trial court for resentencing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed,
                            and the Case is Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., joined.

Hershell D. Koger, Pulaski, Tennessee, for the appellant, Calvin Demetrius Shaw.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; T. Michel Bottoms, District Attorney General; and Kyle Dodd, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background
       The appellant does not contest the sufficiency of the evidence. Taken in the light most
favorable to the State, the evidence shows that on the morning of April 2, 2008, the appellant
was staying in room thirty-four at the Polk Motel in Columbia with his two children, ages
eight and six. A housekeeper testified that she heard “hollering” by a man in room thirty-
four and a gunshot. A second housekeeper went to the motel office and reported the incident
to a police detective, who happened to be at the motel for an unrelated case. The detective
went to the appellant’s room and heard the appellant, who sounded excited and upset, inside.
The detective called for backup, and two other officers arrived. The officers ordered the
appellant to open the door. When the appellant opened the door, the officers saw he was
naked and forced their way into his room. The police called emergency medical services to
the scene to examine the appellant, and the appellant told a paramedic he had snorted one
gram of cocaine. The paramedic testified that the appellant was anxious and believed
someone was trying to kill him, behavior consistent with someone who had used cocaine.
The appellant refused medical treatment, and the police arrested him. During a search of the
appellant’s motel room, an officer found two bags of powder cocaine. One bag contained
2.3 grams of cocaine, and the second bag contained .3 grams. The appellant testified that on
the morning of April 2, 2008, he had been awake and snorting cocaine for two days and was
“high out of [his] mind.” He thought someone was trying to get into his motel room, began
yelling, and shot through the door. Although the appellant had been charged with possessing
.5 grams or more of cocaine with intent to sell, a Class B felony,1 the jury convicted him of
simple possession, a Class A misdemeanor.

        At the appellant’s sentencing hearing, Emily Thigpen from the Board of Probation and
Parole testified that she prepared the appellant’s presentence report. According to the report,
the appellant had two prior convictions for simple possession. In a statement for the report,
the then thirty-year-old appellant told Thigpen that he began using cocaine when he was
twenty-four years old and that he was still using it on April 2, 2008. The appellant told her
that he would use the drug for several days, stop using it for one or two weeks, and then use
it again for several days, often consuming one or two grams per day. Thigpen stated that the
appellant had been convicted of twenty-nine prior misdemeanor offenses, that he had been
sentenced to probation several times, and that he had violated probation several times.

       The State introduced the appellant’s presentence report into evidence. In the report,
the appellant claimed he graduated from high school and attended ITT Tech in Nashville.
The appellant reported that his physical and mental health were “excellent” but that he was
taking Zoloft for depression. The appellant stated in the report that he attended a drug
program from 2005 to 2006 but that he quit attending and did not complete the program.
According to the report, the appellant had been employed for only three brief periods of time

       1
           The judgment of conviction form incorrectly states that the indicted offense is a Class C felony.

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and had never served in the military. The report shows the appellant has been committing
crimes since he was nineteen years old and has numerous prior misdemeanor convictions,
including convictions for drug possession, driving with a suspended license, assault, criminal
impersonation, evading arrest, criminal trespass, reckless endangerment, and public
intoxication.

       In a statement to the court on his own behalf, the appellant said he had a drug problem
and asked the court to “consider giving me some help so I may put my life back in order.”
The appellant told the court that he had two children to raise and that some form of treatment,
such as an inpatient program, “would be the first step of me putting my life back together.”

       During the sentencing hearing, the State argued that because the appellant had two
prior convictions for simple possession, the trial court should sentence him for a Class E
felony pursuant to Tennessee Code Annotated section 39-17-418(e). The defense argued that
under Tennessee Code Annotated section 40-35-203(e), the State should have alleged in the
indictment that the appellant had two prior convictions for simple possession, and the jury,
not the trial court, was required to find he had those prior convictions in order for the trial
court to enhance punishment pursuant to Tennessee Code Annotated section 39-17-418(e).
The trial court agreed with the State, concluding that Tennessee Code Annotated section 40-
35-203(e) did not apply and that the appellant’s prior convictions for simple possession
should result in his being sentenced for a Class E felony. The trial court then found that his
sentence should be enhanced for his extensive criminal history and his possession of a
firearm during the commission of the offense. See Tenn. Code Ann. § 40-35-114(1), (9). The
court sentenced the appellant as a Range I, standard offender to twenty months in
confinement and imposed a $1,000 fine.

                                        II. Analysis

        The appellant contends that the trial court erred by sentencing him for a felony when
the jury convicted him of a misdemeanor and that Tennessee Code Annotated section 39-17-
418(e) is unconstitutional because it allows a trial court to enhance a defendant’s punishment
without prior notice. The State agrees with the appellant that under Tennessee Code
Annotated section 40-35-203(e) the jury was required to find beyond a reasonable doubt that
he had two prior convictions for simple possession before the trial court could sentence him
for simple possession as a Class E felony. Thus, the State concedes that the trial court
improperly sentenced the appellant. We agree with the parties and remand the case to the
trial court in order for the court to resentence the appellant for misdemeanor simple
possession.




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        Tennessee Code Annotated section 39-17-418(a) provides that it is an offense for
anyone “to knowingly possess or casually exchange a controlled substance, unless the
substance was obtained directly from, or pursuant to, a valid prescription or order of a
practitioner while acting in the course of professional practice.” Simple possession is usually
a Class A misdemeanor. Tenn. Code Ann. § 39-17-418(c). However, Tennessee Code
Annotated section 39-17-418(e) states that the offense is a Class E felony “where the person
has two (2) or more prior convictions under this section.” Pursuant to Tennessee Code
Annotated section 40-35-203(e),

              If the criminal offense for which the defendant is charged
              carries an enhanced punishment for a second or subsequent
              violation of the same offense, the indictment in a separate count
              shall specify and charge that fact. If the defendant is convicted
              of the offense, then the jury must find that beyond a reasonable
              doubt the defendant has been previously convicted the requisite
              number of times for the same offense. Upon such finding, the
              defendant shall be subject to the authorized terms of
              imprisonment for the felonies and misdemeanors as set forth in
              § 40-35-111.

The Sentencing Commission Comments for Tennessee Code Annotated section 40-35-203
state that “[f]or an example of an application of subsection (e), see § 39-17-418,” and the
Sentencing Commission Comments for Tennessee Code Annotated section 39-17-418 state
that “[t]his section creates an enhanced penalty for third and subsequent offenses.”

        The sentencing commission comments clarify that Tennessee Code Annotated section
40-35-203(e) applies to Tennessee Code Annotated section 39-17-418. Therefore, the jury
was to determine whether the appellant had been previously convicted of two or more
offenses that could be used to enhance his punishment for simple possession. The State did
not present any evidence at trial regarding the appellant’s having two prior convictions for
simple possession, and the trial court could only sentence the appellant for a Class A
misdemeanor. Given the plain language in Tennessee Code Annotated section 40-35-203(e),
which requires that a separate count of an indictment be used to allege enhanced punishment
for a subsequent violation, the appellant’s claim that Tennessee Code Annotated section 39-
17-418(e) unconstitutionally allows enhanced punishment without prior notice is moot.




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                                      III. Conclusion

       Based upon the record and the parties’ briefs, the appellant’s sentence is reversed and
the case is remanded to the trial court for resentencing.


                                                   ___________________________________
                                                   NORMA McGEE OGLE, JUDGE




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