Felony Ranges in Tennessee – Part 5: The Especially Mitigated Offender

There are five felony offender classifications in Tennessee – career, persistent, multiple, standard, and especially mitigated. For most felonies, your classification determines both the number of years you may be sentenced to and the percentage of your sentence you have to serve before you are parole eligible. Therefore, it is very important to understand felony offender ranges in Tennessee.

If the court finds that a defendant is an especially mitigated defender, the court may reduce the defendant’s standard offender sentence by ten percent (10%), or reduce the release eligibility date by twenty percent (20%). or both.  T.C.A. § 40-35-109.  Assuming the court uses both reductions, the sentencing ranges for especially mitigated offenders is as follows:

A Felony – 13.5 years at 20%

B Felony – 7.2 years at 20%

C Felony – 2.7 years at 20%

D Felony – 1.8 years at 20%

E Felony – .9 years at 20%

So what qualifies someone to take advantage of these reductions?  Under the statute, the court may find the defendant is an especially mitigated offender if:

(1) The defendant has no prior felony convictions; and

(2) The court finds mitigating, but no enhancement factors.

T.C.A. § 40-35-109.

Mitigating factors include, but are not limited to:

(1)  The defendant’s criminal conduct neither caused nor threatened serious bodily injury;

(2)  The defendant acted under strong provocation;

(3)  Substantial grounds exist tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;

(4)  The defendant played a minor role in the commission of the offense;

(5)  Before detection, the defendant compensated or made a good faith attempt to compensate the victim of criminal conduct for the damage or injury the victim sustained;

(6)  The defendant, because of youth or old age, lacked substantial judgment in committing the offense;

(7)  The defendant was motivated by a desire to provide necessities for the defendant’s family or the defendant’s self;

(8)  The defendant was suffering from a mental or physical condition that significantly reduced the defendant’s culpability for the offense; however, the voluntary use of intoxicants does not fall within the purview of this factor;

(9)  The defendant assisted the authorities in uncovering offenses committed by other persons or in detecting or apprehending other persons who had committed the offenses;

(10)  The defendant assisted the authorities in locating or recovering any property or person involved in the crime;

(11)  The defendant, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated the criminal conduct;

(12)  The defendant acted under duress or under the domination of another person, even though the duress or the domination of another person is not sufficient to constitute a defense to the crime; and

(13)  Any other factor consistent with the purposes of this chapter.

T.C.A. § 40-35-113.

Regarding enhancement factors, the court may consider, but is not bound by, the following:

(1) The defendant has a previous history of criminal convictions or criminal behavior, in addition to those necessary to establish the appropriate range;

(2) The defendant was a leader in the commission of an offense involving two (2) or more criminal actors;

(3) The offense involved more than one (1) victim;

(4) A victim of the offense was particularly vulnerable because of age or physical or mental disability;

(5) The defendant treated, or allowed a victim to be treated, with exceptional cruelty during the commission of the offense;

(6) The personal injuries inflicted upon, or the amount of damage to property sustained by or taken from, the victim was particularly great;

(7) The offense involved a victim and was committed to gratify the defendant’s desire for pleasure or excitement;

(8) The defendant, before trial or sentencing, failed to comply with the conditions of a sentence involving release into the community;

(9) The defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense;

(10) The defendant had no hesitation about committing a crime when the risk to human life was high;

(11) The felony resulted in death or serious bodily injury, or involved the threat of death or serious bodily injury, to another person, and the defendant has previously been convicted of a felony that resulted in death or serious bodily injury;

(12) During the commission of the felony, the defendant intentionally inflicted serious bodily injury upon another person, or the actions of the defendant resulted in the death of, or serious bodily injury to, a victim or a person other than the intended victim;

(13) At the time the felony was committed, one (1) of the following classifications was applicable to the defendant:

(A) Released on bail or pretrial release, if the defendant is ultimately convicted of the prior misdemeanor or felony;

(B) Released on parole;

(C) Released on probation;

(D) On work release;

(E) On community corrections;

(F) On some form of judicially ordered release;

(G) On any other type of release into the community under the direct or indirect supervision of any state or local governmental authority or a private entity contracting with the state or a local government;

(H) On escape status; or

(I) Incarcerated in any penal institution on a misdemeanor or felony charge or a misdemeanor or felony conviction;

(14) The defendant abused a position of public or private trust, or used a professional license in a manner that significantly facilitated the commission or the fulfillment of the offense;

(15) The defendant committed the offense on the grounds or facilities of a pre-kindergarten through grade twelve (pre-K-12) public or private institution of learning when minors were present;

(16) The defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult;

(17) The defendant intentionally selected the person against whom the crime was committed or selected the property that was damaged or otherwise affected by the crime, in whole or in part, because of the defendant’s belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry or gender of that person or the owner or occupant of that property; however, this subdivision (17) should not be construed to permit the enhancement of a sexual offense on the basis of gender selection alone;

(18) The offense was an act of terrorism or was related to an act of terrorism;

(19) If the defendant is convicted of the offense of aggravated assault pursuant to § 39-13-102, the victim of the aggravated assault was a law enforcement officer, firefighter, correctional officer, youth services officer, probation and parole officer, a state registered security officer/guard, an employee of the department of correction or the department of children’s services, a uniformed member of the armed forces or national guard, an emergency medical or rescue worker, emergency medical technician or paramedic, whether compensated or acting as a volunteer; provided, that the victim was performing an official duty and the defendant knew or should have known that the victim was such an officer or employee;

(20) If the defendant is convicted of the offenses of rape pursuant to § 39-13-503, sexual battery pursuant to § 39-13-505 or rape of a child pursuant to § 39-13-522, the defendant caused the victim to be mentally incapacitated or physically helpless by use of a controlled substance or controlled substance analogue;

(21) If the defendant is convicted of the offenses of aggravated rape pursuant to § 39-13-502, rape pursuant to § 39-13-503, rape of a child pursuant to § 39-13-522 or statutory rape pursuant to § 39-13-506, the defendant knew or should have known that, at the time of the offense, the defendant was HIV positive;

(22)

(A) If the defendant is convicted of the offenses of aggravated arson pursuant to § 39-14-302 or vandalism pursuant to § 39-14-408, the damage or destruction was caused to a structure, whether temporary or permanent in nature, used as a place of worship and the defendant knew or should have known that it was a place of worship;

(B) As used in subdivision (22)(A), “place of worship” means any structure that is:

(i) Approved, or qualified to be approved, by the state board of equalization for property tax exemption pursuant to § 67-5-212, based on ownership and use of the structure by a religious institution; and

(ii) Utilized on a regular basis by a religious institution as the site of congregational services, rites or activities communally undertaken for the purpose of worship;

(23) The defendant is an adult and sells to or gives or exchanges a controlled substance, controlled substance analogue or other illegal drug with a minor;

(24) The offense involved the theft of property and, as a result of the manner in which the offense was committed, the victim suffered significant damage to other property belonging to the victim or for which the victim was responsible;

(25)

(A) The defendant commits an offense:

(i) During the time period between the first occurrence of events or conduct that later results in a declaration of a state of emergency by a county, the governor, or the president of the United States and the time the county, governor, or the president of the United States terminates the state of emergency, as provided in § 58-2-107;

(ii) Within the area or areas threatened by the emergency, as established by the county’s, governor’s, or president’s declaration of a state of emergency; and

(iii) Knowing of the existence of the emergency;

(B) As used in this subdivision (25):

(i) “Emergency” means an occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, that results or may result in substantial injury or harm to the population, or substantial damage to or loss of property; provided, that natural threats may include disease outbreaks and epidemics; and

(ii) “Offense” means the defendant is convicted of a violation of § 39-14-103, § 39-14-104, § 39-14-408, or any other offense involving theft or vandalism that is graded by value pursuant to § 39-14-105, and the value of the property or service taken or property damaged is no greater than the value provided in § 39-14-105 for a Class E felony;

(26) The defendant committed the offense of robbery pursuant to § 39-13-401, aggravated robbery pursuant to § 39-13-402, or especially aggravated robbery pursuant to § 39-13-403, on the premises of a licensed pharmacy in an effort to unlawfully obtain, sell, give, or exchange a controlled substance, controlled substance analogue, or other illegal drug;

(27) The defendant commits a violent offense, as classified in § 40-35-120(b), against a uniformed law enforcement officer or uniformed member of the armed forces or national guard; and the defendant intentionally selected the person against whom the crime was committed, in whole or in part, because of the person’s status as a law enforcement officer or member of the armed forces or national guard; and

(28) At the time the instant offense was committed, the defendant was illegally or unlawfully in the United States.

T.C.A. § 40-35-114.

As always, talk with a lawyer about the specific details of your case. Some crimes have unique sentences and release eligibility dates.

Other Felony Sentencing Classifications: Career Offender, Persistent Offender, Multiple Offender, and Standard Offender

The Statute of Limitations for Post-Conviction Petitions is One Year

The Tennessee Court of Criminal Appeals affirmed the dismissal of a Shelby County inmate’s petition for post-conviction relief because the inmate failed to timely file his petition or prove an exception to timely filing.  A post-conviction petition must be filed “within one (1) year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final.”  T.C.A. § 40-30-102(a).  The statutory exceptions to the rule are as follows:

(1) The claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of the trial, if retrospective application of that right is required.  Such petition must be filed within one (1) year of the ruling of the highest state appellate court or the United States [S]upreme [C]ourt establishing a constitutional right that was not recognized as existing at the time of the trial;

(2) The claim in the petition is based upon new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or

(3) The claim asserted in the petition seeks relief from a sentence that was enhanced because of a previous conviction and such conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the petition must be filed within one (1) year of the finality of the ruling holding the previous conviction invalid.

T.C.A. § 40-30-102(b)(1)-(3).  Also, “in very limited circumstances,” due process principles may require tolling of the post-conviction statute of limitations.  Seals v. State, 23 S.W.3d 272 (Tenn. 2000) (due process required tolling the statute of limitations because of mental incompetence).

In the case at hand, the inmate filed a petition nearly three and one-half years after the judgment became final.  Since neither the statutory grounds nor due process principles applied to toll the statute of limitations, the court of criminal appeals affirmed the post-conviction court’s dismissal of the petition.

Britton v. State, No. W2016-01298-CCA-R3-PC (Tenn. Crim. App. Aug. 21, 2017)

Will Tennessee increase compensation for indigent representation? Part 1

In April of 2017, the Tennessee Indigent Representation Task Force submitted its 204 page report on improving indigent representation in Tennessee.  The task force was led by former Tennessee Supreme Court Justice William Koch and included judges, professors, and prominent attorneys.  Among other things, the group considered whether Tennessee attorneys were being fairly compensated for indigent representation.   Currently, attorneys representing indigent defendants in our state make $40 per hour out-of-court and $50 per hour “in court,” i.e., in front of a judge.  The last time that rate was raised was 1997, when $40 was worth $60.52 in 2017 dollars.

Tennessee’s rate of $40 per hour is lower than other states and the federal rate.  Personally, I think $40 is fair.  $40 per hour is $80,000 per year if someone works 40 hours per week for 50 weeks.  Granted, it’s tough to get that many cases, but I think this shows that the rate is fair.  My problem is not with the rate.  It is with the case caps.  But that is for Part 2.

Indigent Representation Hourly Rates in Other States:

Alabama – $70

Alaska – $50-$60

Arkansas – $50-$90

Colorado – $65-$68

Connecticut – $50-$75

Delaware – $60

Hawaii – $90

Indiana – $70

Iowa – $60-$70

Kansas – $62-$80

Kentucky – $75-$100

Maine – $50

Maryland – $50

Massachusetts – $50-$60

Montana – $60

Nebraska – $50-$75

Nevada – $100

New Hampshire – $60

New Jersey – $50-$60

New York – $60-$75

North Carolina – $55-$70

North Dakota –  $75

Ohio – $50-$60

Oregon – $45

Rhode Island – $50-$90

South Carolina – $40-$60

South Dakota –  $84

Vermont – $50

Washington – $50-$75

West Virginia – $45-$65

Wisconsin – $40

Wyoming – $30-$100

Federal cases pay $129 per hour.

Divided appellate panel debates the proper standard for search of probationer’s home

Does the search of a probationer’s home require reasonable suspicion or is it lawful so long as it is reasonable based upon the totality of the circumstances?  A divided Tennessee Court of Criminal Appeals panel recently wrestled with this question.  Here are links to the court’s opinion, the concurrence, and the dissent.

Judge Camille R. McMullen, writing for the court, noted that neither the United States Supreme Court nor the Tennessee Supreme Court have explicitly addressed whether something less than reasonable suspicion would justify searches of probationers.  However, the court of criminal appeals had previously stated that, “[w]hen a person has signed a probation agreement providing written consent for a warrantless search of the person’s residence, such a search may be conducted if reasonable suspicion for the search exists.”  State v. Tracy Lynn Carman-Thacker, No. M2014-01859-CCA-R3-CD, 2015 WL 5240209, at *5 (Tenn. Crim. App. Sept. 8, 2015) (citing United States v. Knights, 534 U.S. 112 (2001)).  The court then considered whether United States v. Tessier, 814 F.3d 432 (6th Cir. 2016) applied to the present case.  In Tessier, the Sixth Circuit held that the warrantless search of a probationer’s home was constitutional under the totality of the circumstances and absent reasonable suspicion because the probationer was subject to a “standard” search condition.  The condition in Tessier read: “I agree to a search, without a warrant, of my person, vehicle, property, or place of residence by any Probation/Parole officer or law enforcement officer, at any time.”  Interestingly, the court noted that the condition in the present case was the same as the condition in Tessier but disagreed that the provision was “standard.”  The court reasoned that our state legislature has not authorized warrantless searches as a condition of probation, there is not a uniform warrantless search provision to which every probationer in Tennessee is subject, and three different warrantless search provisions are used in the district the defendant is from.  Because the search condition was not “standard,” Judge McMullen determined that reasonable suspicion was required.

While Judge McMullen’s reasoning was sound, the decision creates an interesting quandary.  The Sixth Circuit has previously ruled that the above probation condition is “standard.”  The state appellate court didn’t seem to be relying on the State constitution in its decision.  Perhaps, the “standard” decision wasn’t part of the Tessier holding and thus not controlling.  Please let me know if you have the answer to this question.

Moving on, the concurring opinion written by Judge John Everett Williams took issue issue with the lower standard.  The opinion relied on the reasoning in Samson v. California, 547 U.S. 843 (2006), where the United States Supreme Court held that reasonable suspicion is not required for the search of parolees.  In reaching this conclusion, the Supreme Court reasoned, “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.”  Conversely, if probationers have a higher expectation of privacy than parolees, then shouldn’t a search of probationers require reasonable suspicion?

The concurrence also emphasized the goals of probation, i.e., rehabilitation and protecting society from future criminal violations.  Both goals are furthered by probationers obtaining employment, furthering their education, supporting their families, and maintaining housing.  Suspicionless searches undermine these goals.  For example, the risk of a suspicionless search makes it less likely than an employer will hire a probationer because the search could disrupt business and subject the employer and other employees to searches that would otherwise be constitutionally impermissible.

Finally, Judge Alan E. Glenn’s dissenting opinion did not directly address which standard should apply.  Rather, the opinion considered the totality of the circumstances and determined that there was reasonable suspicion to make a limited search of the defendants’ residence.

In conclusion, it’s unclear if reasonable suspicion is required to search a probationer’s home.  It may depend on whether you are in federal court or in state court.  It may also depend on what panel you get.  Hopefully, higher courts weigh in on the matter, soon.

State v. Hamm, No. W2016-01282-CCA-R3-CD (Tenn. Crim. App. Aug. 11, 2017)

Clay County Defendant’s Sentence Upheld

Yesterday, the Tennessee Court of Criminal Appeals upheld Judge David Patterson’s denial of alternative sentencing for a Clay County, Tennessee defendant.  Previously, the defendant had pled nolo contendere to attempted aggravated child neglect, a Class B felony.  As part of her plea agreement, she agreed to serve an eight-year term in the manner imposed by the trial court.

The trial court sentenced the defendant to serve eight-years at thirty percent, noting: (1) The defendant had failed to submit to a drug screen prior to the sentencing hearing; (2) The victim was particularly vulnerable because of his infancy; (3) The victim was “almost dead” and the defendant failed to recognize the problem; (4) The indictment originally charged a Class A felony.

On appeal, the defendant argued that the trial court erred because (1) The defendant did not have a long criminal history; (2) She successfully completed a previous sentence on probation; (3) She complied with the terms of her bail for the instant charge; (4) The trial court failed to properly consider mitigating factors; (5) There was no evidence to suggest that she intentionally or knowingly neglected the victim; (6) She brought the victim to the hospital after being told to do so; (7) There was no evidence of neglect to any of her other five children; (8) She gave birth to two children while on bail prior to her guilty plea, and those children will not be able to raised by their mother; and (9) Her confinement will not act as a deterrence and will not act to prevent the depreciation of the seriousness of the offense.

Despite the above arguments, the court of criminal appeals upheld the trial court’s decision, stating that a trial court’s sentencing decision is reviewed for abuse of discretion, with a presumption of reasonableness granted to within-range sentences reflecting a proper application of the purposes and principles of the Sentencing Act.  In this case, the trial court properly took into account the sentencing considerations in T.C.A. § 40-35-103 and whether any enhancement and mitigating factors existed.  See generally T.C.A. §§ 40-35-113, -114.  The trial court also “look[ed] behind the plea bargain” to see that the defendant was originally charged with aggravated child neglect, a Class A Felony that is ineligible for alternative sentencing.  Taking all of this into account, the court of criminal appeals determined that the trial court did not abuse its discretion and upheld the sentence of confinement.

State v. McLerran, No. M2016-02005-CCA-R3-CD (Tenn. Crim. App. Aug. 8, 2017)