                                                                                         02/24/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          December 13, 2017 Session
               Remanded by the Supreme Court on December 5, 2019

              STATE OF TENNESSEE v. HARLEY CROSLAND

                   Appeal from the Circuit Court for Lewis County
                    No. 2016-CR-74 Joseph A. Woodruff, Judge
                      ___________________________________

                           No. M2017-01232-CCA-R3-CD
                       ___________________________________

The State appealed the trial court’s application of the Criminal Savings Statute to the
Defendant’s conviction for “Theft over $500,” arguing that the court improperly imposed
a misdemeanor sentence for the Defendant’s guilty plea to Class E felony theft and that
the amendments to the theft grading statute changed the elements of the offense, rather
than the punishment for the offense. See T.C.A. §§ 39-14-103 (2014) (generic theft
statute), 39-14-105 (2014) (amended 2017) (theft grading statute). Upon review, a
majority of this court dismissed the appeal after concluding that the State had no appeal
as of right under Tennessee Rule of Appellate Procedure 3 or Tennessee Code Annotated
section 40-35-402. State v. Harley Crosland, No. M2017-01232-CCA-R3-CD, 2018 WL
3092903 (Tenn. Crim. App. June 21, 2018), perm. app. granted and case remanded, No.
M2017-01232-SC-R11-CD (Tenn. Dec. 5, 2019) (order). On December 5, 2019, the
Tennessee Supreme Court granted the State’s application for permission to appeal and
remanded the case to this court for reconsideration in light of the supreme court’s opinion
in State v. Menke, No. M2017-00597-SC-R11-CD, ___ S.W.3d ___, 2019 WL 6336427
(Tenn. Nov. 27, 2019). Harley Crosland, No. M2017-01232-SC-R11-CD (Tenn. Dec. 5,
2019) (order). Upon further review, we affirm the trial court’s imposition of a sentence
of eleven months and twenty-nine days for the Defendant’s theft conviction, we reverse
the portion of the judgment stating that this theft conviction is a Class E felony, and we
remand the case to the trial court for entry of a corrected judgment form reflecting that
the Defendant’s amended offense and conviction offense are theft of property valued at
$1,000 or less and that this theft conviction constitutes a Class A misdemeanor.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and TIMOTHY L. EASTER, JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Kim R. Helper, District Attorney General; and Stacey Edmonson and
Sean Duddy, Assistant District Attorneys General, for the appellant, State of Tennessee.

Richard Boehms, Hohenwald, Tennessee, for the appellee, Harley Crosland.

                                    OPINION ON REMAND

        The facts of this case are not in dispute. Between July 2, 2016 and July 5, 2016,
the Defendant, Harley Crosland, broke into the Lewis County Landfill office and stole
several items, including a chainsaw, muzzleloader rifle, handheld scanner, and two laptop
computers. The police later found one of the stolen items in a room where the Defendant
was staying, and the Defendant eventually admitted to breaking into the landfill and
stealing the items, which were valued at more than $500 but less than $1,000. The Lewis
County Grand Jury charged the Defendant with one count of theft of property valued at
“at least $500 but less than $1,000” and one count of burglary. At the time the Defendant
committed the theft crime, the theft grading statute in effect classified the Defendant’s
offense as a Class E felony. See T.C.A. § 39-14-105 (2014). On January 1, 2017, the
Public Safety Act, which changed the values required for Class A misdemeanor, Class E
felony, and Class D felony theft, became effective. 2016 Tenn. Pub. Acts, ch. 906, sec. 5.
As a result of this new act, thefts of property valued at $1,000 or less became Class A
misdemeanors. Id.; Tenn. Code Ann. § 39-14-105(a)(1) (Supp. 2017).

        At the March 8, 2017 hearing, the Defendant attempted to plead guilty to theft of
property valued “[o]ver $500” and attempted burglary in exchange for concurrent three
year sentences as a Range II, multiple offender pursuant to a plea agreement.1 The trial
court asserted that the “change in the [theft grading] statute was to lower the maximum
sentence” by “chang[ing] the grade of the offense.” The court then questioned whether
the Defendant should “get the benefit of that change so that [his sentence] would now be
capped at 11/29.” Both the State and defense counsel replied that the Defendant should
be sentenced for his theft conviction pursuant to the law in effect at the time of the
offense, which was prior to the effective date of the amendments to the theft grading
statute. Ultimately, the trial court, in light of its concerns about the applicability of the
amendments to the theft grading statute, declined to accept the Defendant’s guilty plea
and continued the case.




        1
           At the March 8, 2017 hearing, the Defendant also entered several guilty pleas in two unrelated
cases and conceded that he had violated his probation in another case. Because these other cases are not
part of this appeal, we will not include them in our analysis.
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       On April 5, 2017, the Defendant, pursuant to a plea agreement, entered an “open”
guilty plea as a Range II, multiple offender to theft of property valued at more than $500
but less than $1,000 and attempted burglary, with the trial court to determine the length
of his concurrent, incarcerative sentences following a sentencing hearing. The court
asked the parties to submit briefs on whether the theft conviction “should be sentenced as
a misdemeanor as opposed to a felony” and reset the case for sentencing.

        At the May 17, 2017 sentencing hearing, the trial court noted that the Defendant
had committed the theft offense prior to the effective date of the amendments to the theft
grading statute. The court said, “I believe that the only way for the [c]ourt to apply all of
[the law,] including [the Criminal S]aving[s] Statute, is to treat the conviction as a felony
conviction, but the sentence that I am able to impose is capped as 11/29.” It added, “I
think the [D]efendant gets the benefit of the reduction in the sentence, but the
classification of the offense remains unchanged.” The trial court then imposed a sentence
of eleven months and twenty-nine days for the theft conviction and a concurrent sentence
of three years for the attempted burglary conviction. The judgment reflected that the
Defendant’s theft conviction was a Class E felony. Following entry of these judgments,
the State filed a timely notice of appeal.

        The State, on appeal, argued that the trial court had improperly imposed a
misdemeanor sentence for the Defendant’s felony theft conviction. It claimed that the
Criminal Savings Statute did not apply because the amendments to the theft grading
statute changed the elements of the theft offense and the Defendant’s offense was based
on the prior version of the theft statute. The State asserted that the Defendant had been
properly convicted of a felony but had improperly received a sentence “below the
authorized range.”

       A majority of this court dismissed the appeal after concluding that the State had no
appeal as of right under Tennessee Rule of Appellate Procedure 3 or Tennessee Code
Annotated section 40-35-402. Harley Crosland, 2018 WL 3092903, at *2-3. Thereafter,
the Tennessee Supreme Court granted the State’s application for permission to appeal and
remanded the case to this court for reconsideration in light of the supreme court’s opinion
in State v. Menke. Harley Crosland, No. M2017-01232-SC-R11-CD (Tenn. Dec. 5,
2019) (order).

                                       ANALYSIS

       On remand, we must consider this case in light of supreme court’s opinion in
Menke, which held that Code section 40-35-402(b)(1) provides the State with the
authority to appeal the trial court’s application of the amended version of the theft

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grading statute and that the Criminal Savings Statute applies to the amendments to the
theft grading statute. Menke, ___ S.W.3d at ___, 2019 WL 6336427, at *8, *11.

        In Menke, the Tennessee Supreme Court first considered “[w]hether the State may
pursue an appeal as of right from the trial court’s application of the Criminal Savings
Statute, codified at Tennessee Code Annotated section 39-11-112, in sentencing the
defendant for theft offenses that were committed before the effective date of the
amendments to Tennessee Code Annotated section 39-14-105.” Id. at *3. In that case,
the State filed a notice of appeal to the Court of Criminal Appeals, citing Code section
40-35-402(b) as its authority to appeal, and the defendant argued that Tennessee Rule of
Appellate Procedure 3 was the exclusive source of the State’s right to appeal. Id. at *4-5.
The Tennessee Supreme Court, in considering this jurisdictional issue, recognized that
the State’s argument actually concerned the offense classification because the State
claimed that the defendant was improperly sentenced for a Class A misdemeanor rather
than a Class D felony. Id. at *7. The court noted that “[a] trial court’s improper
application of either the offender classification or the offense classification will directly
result in a ‘wrong sentence range.’” Id. at *8. It then concluded that because the appeal
involved offense classification, it necessarily involved sentence range. Id. Accordingly,
the Tennessee Supreme Court agreed with the determination of the Court of Criminal
Appeals that Code section 40-35-402(b)(1) served as a basis for appellate jurisdiction in
that case. Id. Applying the Menke holding regarding jurisdiction to the Defendant’s
case, we conclude that Code section 40-35-402(b)(1) likewise serves as the State’s
authority to appeal.

        The Tennessee Supreme Court in Menke also considered whether the amendments
to the theft grading statute in Code section 39-14-105 are applicable when the
defendant’s offense occurred before the amendments’ effective date and the defendant
was sentenced after the amendments’ effective date. Id. at *8. The court, rejecting the
view that the value of the stolen property is an essential element of the offense, concluded
that the Criminal Savings Statute is applicable to the amendments to the theft grading
statute:


               After our thorough review, we are persuaded that the Criminal
       Savings Statute does apply to the amended theft grading statute. We
       remain particularly unconvinced that the value of the stolen property was
       intended to be an essential element of the offense of theft. This Court has
       made clear that value is a jury question. See State v. Hamm, 611 S.W.2d
       826, 828-29 (Tenn. 1981) (“In determining the value of stolen property . . .
       , the trier of fact is to determine the fair cash market value of the stolen
       property at the time and place of the theft . . . .”). Still, it does not
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       necessarily follow that value is an essential element. As noted above, the
       fair market value of the stolen property is a question determined by the jury
       after the defendant is found guilty of theft beyond a reasonable doubt. It is
       a separate determination made after a defendant’s guilt has been established
       and pursuant to a different statute. Moreover, the inability to ascertain the
       stolen property’s value is not fatal to the State’s charge against the
       defendant. See Tenn. Code Ann. § 39-11-106(36)(C) (2014) (“If property
       or service has value that cannot be ascertained . . . , the property or service
       is deemed to have a value of less than fifty dollars ($50.00)[.]”). We,
       therefore, agree with the Keese panel of the Court of Criminal Appeals that
       the value of the stolen property is not an essential element of the offense of
       theft.



Id. at *11 (footnote omitted) (emphasis added).



       The court next concluded that the amendments to the theft grading statute
effectively decreased the punishment for some crimes:

               While we cannot fully agree with the defendant’s argument that the
       theft grading statute is a sentencing statute, we also cannot ignore the direct
       impact that the theft grading statute has on punishment. Under the subject
       statute, the stolen property’s value is used to determine the corresponding
       offense class, and then, under section 40-35-111, the offense class is used
       to determine an authorized sentence. So, by raising the value ranges
       associated with each offense class—e.g., from $500 or less for Class A
       misdemeanor theft to $1,000 or less—the legislature reduced the
       punishment for the crime. See also Tenn. Code Ann. § 39-14-105,
       Sentencing Comm’n Cmts. (“This section 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. § 39-14-408(c)(2) (The
       statute criminalizing vandalism provides that the offense “shall be punished
       as for theft under § 39-14-105 . . . .”).



Id. at *13 (footnote omitted). The court explained that “because the amendments at issue
clearly provide for a ‘lesser penalty’ than the previous version of the theft grading statute,
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. . . the condition provided in the Criminal Savings Statute is satisfied[,] and . . . the
amended version of the theft grading statute is applicable even where, as here, the offense
occurred before the amendment’s effective date.” Id. (footnote omitted). The court then
held that the Defendant’s crime constituted a Class A misdemeanor and that the trial
court’s imposition of a sentence of eleven months and twenty-nine days for this offense
was proper. Id.

        Here, the amended version of the theft grading statute provides for a “lesser
penalty” for the Defendant’s theft conviction than the prior version of the statute;
accordingly, the condition provided in the Criminal Savings Statute is satisfied, and the
amended theft grading statute is applicable, even though the Defendant committed the
theft offense before the effective date of the amended version of the statute. In light of
the Tennessee Supreme Court’s opinion in State v. Menke, we conclude that the trial
court properly applied the Criminal Savings Statute and properly imposed a sentence of
eleven months and twenty-nine days for this conviction. However, because the
Defendant’s crime constitutes a Class A misdemeanor, rather than a Class E felony as
reflected in the judgment form, we remand the case to the trial court for entry of a
corrected judgment reflecting that the Defendant’s amended offense and conviction
offense are theft of property valued at $1,000 or less and that the Defendant’s conviction
is a Class A misdemeanor.

                                    CONCLUSION

       Upon reconsideration of this case in light of the Tennessee Supreme Court’s
decision in State v. Menke, we affirm the trial court’s imposition of a sentence of eleven
months and twenty-nine days for the Defendant’s theft conviction, we reverse the portion
of the judgment stating that this theft conviction is a Class E felony, and we remand the
case to the trial court for entry of a corrected judgment form reflecting that the
Defendant’s amended offense and conviction offense are theft of property valued at
$1,000 or less and that this theft conviction constitutes a Class A misdemeanor.




                                             ____________________________________
                                             CAMILLE R. MCMULLEN, JUDGE




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