           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE              FILED
                             AUGUST 1997 SESSION
                                                         December 18, 1997

                                                         Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
BRUCE C. SLATER,                *    C.C.A. # 03C01-9702-CR-00061

                Appellee,       *    KNOX COUNTY

VS.                             *    Hon. Richard M. Baumgartner, Judge

STATE OF TENNESSEE,             *    (Post-Conviction--State Appeal)

                Appellant.      *




For Appellee:                        For Appellant:

Allen E. Schwartz                    John Knox Walkup
603 Main Street                      Attorney General and Reporter
Suite 405
Knoxville, TN 37902                  Marvin E. Clements, Jr.
                                     Assistant Attorney General
Aubrey Davis                         450 James Robertson Parkway
Assistant Public Defender            Nashville, TN 37243-0493
1209 Euclid Avenue
Knoxville, TN 37921                  Marsha Selecman
                                     Assistant District Attorney General
                                     City-County Building, Suite 168
                                     400 Main Street
                                     Knoxville, TN 37902-2405




OPINION FILED:__________________________




REVERSED AND REMANDED




GARY R. WADE, JUDGE
                                        OPINION

              The state appeals from a judgment by the trial court reducing the

sentence of petitioner, Bruce Slater. In 1987, the petitioner committed bank

robbery. He was sentenced in 1991. The petitioner sought relief from the length of

his sentence through the Post-Conviction Procedure Act. The primary issue

presented for our review is whether the petitioner should have been sentenced

under the 1982 Sentencing Act or the 1989 Sentencing Act. A secondary issue

relates to procedure and jurisdiction. We reverse the judgment of the trial court and

remand the cause for a recalculation of the sentence.



              On May 26, 1991, the trial court sentenced the petitioner to a Range

III, thirty-year sentence under the terms of the 1989 Criminal Code. Thereafter, the

petitioner filed this petition alleging his counsel was ineffective for failing to ensure

he was sentenced in accordance with law. At the conclusion of the evidentiary

hearing, the trial court applied the 1989 Act and entered an order reducing the

petitioner's sentence to Range III, fifteen years.



                                             I

              Tennessee Code Annotated § 40-35-117 provides that persons

sentenced after November 1, 1989, for crimes committed between July 1, 1982, and

November 1, 1989, must be sentenced under the 1989 Act, "[u]nless prohibited by

the United States or Tennessee Constitution." Tenn. Code Ann. § 40-35-117(b).

Also, Tenn. Code Ann. § 39-11-112 provides that if the 1989 Act provides for a

"lesser penalty," punishment shall be imposed in accordance with the 1989 Act.



              In State v. Pearson, 858 S.W.2d 879 (Tenn. 1993), our supreme court

set forth guidelines for making certain the sentence imposed is constitutional:


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               [I]n order to comply with the ex post facto prohibitions of
               the U.S. and Tennessee Constitutions, trial court judges
               imposing sentences after the effective date of the 1989
               statute, for crimes committed prior thereto, must
               calculate the appropriate sentence under both the 1982
               statute and the 1989 statute, in their entirety, and then
               impose the lesser sentence of the two.


               This petitioner was convicted of bank robbery. See Tenn. Code Ann. §

39-2-502 (repealed 1989). The judgment form reflects that the trial court, relying on

the 1989 Act, treated the offense as a Class B felony and imposed a Range III,

thirty-year sentence. The statutory range was between twenty and thirty years.

Tenn. Code Ann. § 40-35-112. Because the record does not contain any of the

proceedings from the original trial, sentencing hearing, or direct appeal, we cannot

determine how the trial judge arrived at a thirty-year sentence.



               The petitioner argues that when the trial court imposed sentence, it

misclassified the bank robbery as a Class B felony. The petitioner insists that it was

a Class C felony under the 1989 Act. A Range III, Class B sentence is twenty to

thirty years; by comparison, a Range III, Class C sentence is only ten to fifteen

years. Tenn. Code Ann. § 40-35-112(c). The petitioner pointed out that the 1989

Act does not recognize a separate crime of bank robbery. Instead, the Act both

defines and provides punishment for robbery, aggravated robbery, and especially

aggravated robbery. Tenn. Code Ann. §§ 39-13-401, -402, -403. At the post-

conviction hearing, the petitioner argued that because the elements of the offense of

bank robbery most closely matched the elements of simple robbery under the 1989

Act, a bank robbery must be classified as a robbery, a Class C felony. See Tenn.

Code Ann. § 39-13-401. The trial court agreed and reduced the sentence to Range

III, fifteen years.



               The 1982 Act did not grade offenses the way the 1989 Act does. Bank

                                            3
robbery was not a graded offense under the 1982 Act. In conducting a Pearson

analysis, the trial court would have to calculate the sentence under both the 1982

and 1989 Acts and then impose the lesser sentence. 858 S.W.2d at 884. The

question is how to calculate a sentence under the 1989 Act for an offense that did

not survive the enactment of the new act and, thus, is not graded. The trial court

compared the statutory elements of bank robbery with the elements of the robbery

offenses defined in the 1989 Act and graded the conviction offense accordingly.



              The legislature provided a classification system for converting felonies

defined by prior law into the categories adopted by the new Act. Robert Lynn

Godsey v. State, No. 03C01-9308-CR-00280, slip op. at 8 (Tenn. Crim. App., at

Knoxville, Aug. 11, 1994). This system is set forth in Tenn. Code Ann. § 40-35-118

and is essentially a listing of every offense in existence prior to enactment of the

1989 Act accompanied with a classification as either Class A, B, C, D, or E felony.

In Godsey, the defendant was convicted of grand larceny, as defined by the 1982

Act, but was sentenced after passage of the 1989 Act. Godsey, slip op. at 2. He

filed a post-conviction petition alleging that he should have been "sentenced under

the 'theft of property' statutes in the 1989 revision of the criminal code." Id., slip op.

at 4. Our court rejected this contention and ruled that Section 40-35-118 was

controlling on how to treat the grand larceny conviction for sentencing under the

1989 Act. Id., slip op. at 8.



              The Sentencing Commission Comments to this section provide

guidance:

              This section classifies felony offenses in title 39 which
              were in existence prior to November 1, 1989. ...
              [P]ersons sentenced on or after November 1, 1989, for
              an offense committed between July 1, 1982 and
              November 1, 1989, must be sentenced under the
              provisions of this chapter. ... The new definitions and

                                            4
              classifications cannot be utilized for offenses which
              occurred prior to November 1, 1989, because, in many
              instances, the elements of the offense are completely
              different. Consequently, ... this section sets forth the
              felony classification which is to be utilized for those
              offenses which occurred prior to November 1, 1989,
              when the sentencing takes place after that date.


              Tennessee Code Annotated § 40-35-118 controls the disposition of

this case. See also Pearson, 858 S.W.2d at 883 (relying on Tenn. Code Ann. § 40-

35-118 to conclude that "[u]nder the 1989 statute, first-degree burglary is classified

as a Class C felony"). By the terms of that provision it is apparent that the trial court

erred by amending the judgment to indicate that the petitioner had been convicted of

a Class C felony instead of a Class B felony. That determination, however, does not

end our inquiry. We do not have the record of the original sentencing hearing

before us; in consequence, this court can neither conduct a review of the sentence

or calculate an appropriate sentence under the terms of the 1982 Act. We must,

therefore, remand this action for a recalculation of the sentence under the 1982 Act.

That is essential to ensure that the petitioner is not subjected to an ex post facto

violation. Pearson, 858 S.W.2d at 884.



              The state argues that because both the trial court and the post-

conviction court imposed maximum sentences, any calculation under the 1982 Act

would also result in the maximum sentence of forty years. The state reasons that

the petitioner has not suffered an ex post facto violation.



              Under the 1982 Act, the sentencing range for bank robbery is twenty to

forty years. Tenn. Code Ann. § 39-2-502 (repealed 1989). The amount of time the

trial court could lawfully order the petitioner to serve would, however, depend on

whether the petitioner is classified as a "persistent offender." See Tenn. Code Ann.

§§ 40-35-106, -109 (repealed 1989).

                                            5
              Under the 1982 Act, a Range I sentence is "not less than the minimum

sentence ... and not more than the minimum plus one-half (1/2) of the difference

between the maximum sentence and the minimum sentence." Tenn. Code Ann. §

40-35-109(a)(repealed 1989). Thus a Range I sentence for bank robbery would be

twenty to thirty years. A Range II sentence is "not less than the minimum sentence

plus one-half (1/2) of the difference between the maximum and the minimum

sentence, and not more than the maximum sentence as provided by law." Tenn.

Code Ann. § 40-35-109(b) (repealed 1989). That establishes a Range II sentence

at between thirty and forty years.



              Whether the petitioner received a Range I or II sentence would

depend, in part, on whether he would qualify as a persistent offender under the

older act. The 1982 Act defines a persistent offender differently than the 1989 Act;

it excludes from consideration certain convictions that are over five years old and

others that are over ten years old. Tenn. Code Ann. § 40-35-106 (repealed 1989).

In contrast, the 1989 Act considers "[a]ll prior felony convictions including those

occurring prior to November 1, 1989." Tenn. Code Ann. § 40-35-107(b)(2). That

the defendant likely qualifies as a persistent offender under the 1989 Act does not

necessarily mean that he would be so classified under the 1982 Act.



              If the petitioner were a standard offender under the 1982 Act and

received a Range I sentence, the maximum he could be sentenced to would be

thirty years with a release eligibility of thirty percent. Tenn. Code Ann. § 40-35-

501(repealed 1989). Thus, even though the amount of time ordered under both

acts would be the same (thirty years), the 1989 Act imposes a release eligibility of

forty-five percent, whereas the 1982 Act imposes a thirty percent release eligibility.

"[T]he repeal of parole eligibility standards previously available to an inmate


                                           6
implicates the Ex Post Facto Clause if the effect of the repeal is to impose a greater

or more severe punishment than was proscribed by law at the time of the offense."

Kaylor v. Bradley, 912 S.W.2d 728, 732 (Tenn. App. 1995). See also Lynce v.

Mathis, _____U.S._____, 117 S. Ct. 891 (1997); Weaver v. Graham, 450 U.S. 24

(1981).



              A remand is the proper remedy. The trial court must impose the lesser

of the two possible sentences. The sentencing should be based on findings of fact,

including how the trial court arrived at the specific offender classification as well as

what enhancement factors applied.



                                             II

              The petitioner argues the state has no right to appeal the post-

conviction court's determination, relying on the statute governing when the state

may appeal a sentencing determination. See Tenn. Code Ann. § 40-35-402. The

post-conviction ruling, however, is governed by Tenn. Code Ann. § 40-30-122

(repealed 1995), which provides as follows:

              The order granting or denying relief under the provisions
              of this chapter shall be deemed a final judgment and an
              appeal may be taken to the court of criminal appeals in
              the manner prescribed by the Tennessee Rules of
              Appellate Procedure.

Thus, the state has a right to appeal the trial court's granting of post-conviction

relief. Tenn. R. App. 3.



              The state argues the post-conviction court had no jurisdiction to modify

the final judgment of the trial court, insisting that "the post-conviction court's action

amounted to it going behind the lawfully entered verdict of the jury, and

reinterpreting the evidence to come up with a new verdict under the 1989


                                             7
sentencing act." Our court has rejected the notion that a post-conviction court may

not correct an unconstitutional sentence:

             The Post-Conviction Procedure Act was created to
             address and remedy constitutional wrongdoing in the
             conviction or sentencing process .... Effectively, this act
             provides procedural authority for a court to reopen the
             original case in order to right a constitutional wrong. ...
             Therefore, in some circumstances when the remedy
             requires a new trial, a case is returned to the pretrial
             stage, while in other circumstances the remedy does not
             require a new trial, but may require returning a case to
             the presentencing stage.


Sills v. State, 884 S.W.2d 139, 142-43 (Tenn. Crim. App. 1994) (footnote omitted).

We continue to adhere to that view.



             Accordingly, the judgment of the trial court is reversed. This cause is

remanded for a calculation of sentence.



                                          __________________________________
                                          Gary R. Wade, Judge

CONCUR:



_________________________________
Paul G. Summers, Judge



__________________________________
William M. Barker, Judge




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