510 s.w.3d 398, 400 (tenn. 2016). the
TRANSCRIPT
IN THE CRIMINAL COURT OF HAMILTON COUNTY, TENNESSEE
STATE OF TENNESSEE ) Docket No. 305662 )
vs. ) Division II )
COURTNEY HIGH ) Judge Greenholtz ,._,
Cl ..c:. ~ MOTION NO. 16: DEFENDANT COUNRTNEY HIGJfS ~ ~ ~
MOTION TO DISMISS THE SUPERSEDING PRESENTMEMI' ON bfi~ 0
BASIS THAT TENN. CODE A_NN. §39-12-203, ET SEQ., AND ~0-35·l21 a" ~ VIOLATE T~E EX POST FACTO CLAUSES OF THE UNITED1STAT:ES ~ ~
CONSTITUTION AND THE CONSTITUTION OF THE STATE OF.\TENNESS:!E '(.=; j"T\ •• ,.,
:::0 N o --• N (J
COMES NOW, Courtney High, Defendant in the above styled cause, by and
through counsel, and files this Motion seeking the Court to Dismiss the superseding
Presentment on the basis it violates the Ex Post Facto Clauses of the United States
Constitution and the Constitution of the State of Tennessee.
PROHIBITION OF EX POST FACTO LAWS
Article I, Section 9, Clause 3 and Article I, Section 10, Clause 1 of the United States
Constitution prohibit the passage of any ex post facto laws. The Tennessee Constitution
in Article I, Section 11, states, "That laws made for the punishment of acts committed
previous to the existence of such laws, and by them only declared criminal, are contrary
to the principles of a free government; wherefore no ex post facto law shall be made."
The fundamental premise underlying the prohibition of ex post facto laws is basic
fairness. The Framers of the Constitution considered ex post facto laws to be "contrary to
the first principles of the social compact and to every principle of sound legislation." The
Federalist Papers, No. 44, page 282 (Clinton Rossiter 1961) Games Madison). Weaver v.
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. .
Graham, 450 U.S. 24, 28-29 (1981); State v. Pntilt, 510 S.W.3d 398, 400 (Tenn. 2016). The
Clause's import is to ensure due process of individuals in that notice of applicable laws
is made, and to act as a guard against vindictive action. The Clause further safeguards
"a fundamental fairness interest ... in having the government abide by the rules of law
it establishes to govern the circumstances under which it can deprive a person of his or
her liberty or life." Cannell v. Texas, 529 US. 513, 533 (2000); Pntitt, at 411.
The most significant and lasting decision interpreting the federal Ex Post Facto
Clause, authored by Justice Chase, is Calder v. Bull, 3 U.S. (3 Dall) 386 (1798). Justice Chase
opined the Clause prohibited four categories of laws that would violate the prohibition:
"1st. Every law that makes an action done, before the passing of the law, and which was innocent when done, criminal; 2nd. Every law that aggravates a crime, or makes it greater that it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punislunent, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender." Id., at 390.
Over the passage of time, the Court reasoned that the Calder factors were not all
inclusive. Kring v. Missouri, 107 U.S. 221 (1883). But the Court's decisions varied over the
years as to the correct import of any factor not explicitly listed in Calder. See Hopt v. Utah,
110 U.S. 574, 587-88 (1884); Beazell v. Ohio, 269 U.S. 167, 170 (1925); Lindsay v. Washington,
301 U.S. 397, 401 (1937); Dobbert v. Florida, 432 U.S. 282, 293 (1977); Weaver v. Graham, 450
U.S. 24, 29 (1981). Eventually in Collins v. Youngblood, 497 U.S. 37 (1990), the Court
overruled the Kring decision and all other prior decisions of the Court that based
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decisions on factors beyond those in Calder and returned to the more streamlined and
historically consistent approach of looking only to the Calder factors when resolving cases
brought under the Ex Post Facto Clause.t
The State of Tennessee jurisprudence regarding the state constitutional provision
barring ex post facto laws followed the federal precedents set by the United States Supreme
Court until1979. InMillerv. State, 584 S.W.2d 758 (Tenn. 1979),2 the Tennessee Supreme
Court opined that the state constitution provided broader protection from ex post facto
laws than the federal constitutional provision and added a fifth category to the Calder
factors- "Every law which, in relation to the offense or its consequences, alters the
situation of a person to his disadvantage."
The Miller decision was infrequently cited or relied upon by the courts in
determining alleged violations of the Ex Post Facto Clause of Tennessee's Constitution.
Only one reported decision relied on this fifth factor in its reasoning. State v. Odom, 137
S.W.3d 572, 582-83 (Tenn. 2004). See also State v. Pearson, 858 S.W.2d 879,883 (Tenn. 1993);
State v. Rogers, 992 S.W.2d 393 (Tenn. 1999); State v. Pike, 978 S.W.2d 904 (Tenn. 1998); State
v. Ashby, 823 S.W.2d 166 (Tenn. 1991).
In State v. Pmitt, 510 S.W.3d 398 (Tenn. 2016), the Tennessee Supreme Court held
that generally, "this Court will not interpret a state constitutional provision differently
than a similar federal constitutional provision unless there are sufficient textual or
1 The Collins Court overruled: Kring v. Missouri, 107 U.S. 221 (1883); 11wmpson v. Utah, 170 U.S. 343 (1898); Duncan v. A1issouri, 152 US. 377 (1894); Dobbert v. Florida, 432 U.S. 282; Beaull v. Ohio, 269 U.S. 197 (1925); Mallett v. North Carolina, 181 U.S. 589 (1901).
2 See Stinson v. State, 344 SW.2d 369 (Tenn. 1961); Davis v. Beeler, 207 S.W.2d 343 (1947).
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historical differences, or other grounds for doing so." Pmitt, 510 S.W.3d at 415 (citing
Phillips v. Montgomen; Cnh;,442 S.W.3d 233, 243 (Tenn. 2014)). The Pmitt court overruled
Miller and, like the Supreme Court in Collins v. Youngblood, 497 U.S. 37 (1990), reverted
back to applying the Calder factors when determining whether a law violates that State
Constitution's Ex Post Facto Clause. Pmitt, 510 S.W.3d at 416.
In Lynce v. Mathis, the Supreme Court gave us an even more concise formulation
of the Calder factors: "[t]o fall within the ex post facto prohibition, a law must be
retrospective-that is, it must apply to events occurring before its enactment-and it must
disadvantage the offender affected by it, ... by altering the definition of criminal conduct
or increasing the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441 (1997)
(quoting Weaver v. Graham, 450 U.S. 24, 30 (1981)) (citing Collins, 497 U.S. at 50).
EFFECT OF BONDS DECISION
In State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016), the Court of Criminal
Appeals declared TENN. CODE ANN. §40-35-121(b) and (e) to be unconstitutional.3
After the amendment of the constitutionally infirm provisions of the statute by the
General Assembly, the Tennessee Supreme Court held in Minor v. State, 546 S.W.3d 59
(Tenn. 2018) that the defendant was entitled to retroactive relief of the sentences imposed
on him under the former language of the statute. In so doing, they affirmed the rationale
and reasoning of the Bonds decision.4 See Id.
3 The General Assembly amended the criminal gang offense statute after the Bonds decision to address the constitutional deficiencies identified in that case. See, TENN. CODE ANN. §40-35-121 (b) (Supp. 2017).
4 The Court noted that the State did not seek review of the Court of Criminal Appeals decision in Bonds and did not contest the ruling in the appeal in Minor.
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The issue of whether the 2017 amendments to the statute corrected the
constitutional deficiencies were not addressed by the Court in Minor. 5
APPLICATION OF THE CALDER FACTORS
As the Tennessee Supreme Court noted in State v. Pmitt, 510 S.W.3d 398,417 (Tenn.
2016), criminal legislation is not to be applied retroactively. Johnson v. United States, 529
U.S. 694, 701 (2000). Procedural changes in the law, even if they operate to the
disadvantage of a defendant can be constitutional. See Pruitt, 510 S.W.3d at 417 (quoting
Landgraf v. USI Film Prod., 511 U.S. 244, 275, n. 28 (1994)). But· merely "labeling a law
procedural" does not prevent review under the Ex Post Facto Clause. Collins, 497 U.S. at
46; Pruitt, 510 S. W.3d at 417. If a change is purportedly" procedural in practice" and does
not run afoul of the Calder categories, such change would suffice to withstand a challenge
under the Ex Post Facto Clause. Collins, at 52. Pruitt, at 417.
The changes made by the General Assembly relating to criminal gangs cannot be
read to be procedural in nature. The amendments in 2012, 2013, 2016 and 2017 were not
changes to the Tennessee Rules of Criminal Procedure. The amendments created new
criminal offenses, re-defined certain offenses, substantially increased sentencing
classifications, and specifically included street gangs as being subject to the RICO
statute.6 The amendments did not alter the procedures used to prosecute and sentence
under these criminal statutes; rather the amended statutes re-defined criminal offenses
and statutorily-mandated sentence enhancements. As such, these amendments must be
5 See Minor v. State, 546 S.W.3d 59, n. 13. 6 TEI'-IN. CODE ANN. §39-12·204, et seq.
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examined under the Calder factors without a presumption that the statutes are procedural
in nature.7
CALDER FACTOR N0.1
"Every law that makes an action done before the passing of the law, which was innocent when done, criminal."
The two predicate acts relied upon the District Attorney General to meet the
requirements of gang related offenses that form a pattern of racketeering activity on the
part of Courtney High, pursuant to TENN. CopE. ANN. §39-12-203 et seq. in conjunction
with TENN. CODE. ANN. §40-35-121(a), occurred in 2009 and 2010. The crimes of
Attempted Arson and Possession of a Weapon were statutory offenses in 2009 and 2010,
' but no one was on notice that such offenses could be considered predicate acts under
TENN. CODE. ANN. §40-35-121(a), as the statute did not exist in its current form. In 2010,
TENN. CODE. ANN. §40-35-121(a)(3) read in pertinent part:
I d.
(3) Criminal gang offense means any violation of Tennessee law:
(A) During the perpetration of which the defendant knowingly causes, or threatens to cause, death or bodily injury to another person or persons and specifically includes rape of a child, aggravated rape and rape; or
(B) That results, or was intended to result, in the defendant receiving income, benefit, property, money or anything of value from the illegal sale, delivery or manufacture of a controlled substance or firearm ...
7 The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. Cummings v. Missouri, 71 U.S. 277 4 \Vall. 277, 235 (1886); it is the effect, not the form, of the law that determines whether it is ex post facto. Pruitt, at 417, quoting Weaver, 450 U.S. at 31 (1981)
Page 6 of 13
While the actions taken during these two crimes are perhaps not innocent as the
first Calder factor contemplates, as a basis for a "pattern of racketeering activity" due to
their designation as "criminal gang offenses," Mr. High was "innocent" at the time of the
commission of these crimes as they relate to TENN. CODE. ANN. §40-35-121(a) in its current
form passed by the General Assembly years later.8 That is, the crimes of attempted arson
and possession of a weapon were not criminal gang offenses when they were committed
by Mr. High, and the Ex Post Facto Clause of the Tennessee Constitution prohibits the
retroactive application of a law to re-criminalize the past conduct of Mr. High "by altering
the definition of criminal conduct or increasing the punishment for the crime." Lynce v.
Mathis, 519 U.S. 433, 441 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 30 (1981)) (citi11g
Collins, 497 U.S. at 50); State v. Pruitt, 510 S.W.3d 398,417 (Tenn. 2016).
The offenses committed by Courtney High in 2009 and 2010, unlawful possession
of a weapon and aggravated arson respectively, which are relied upon by the District
Attorney General in the Superseding Presentment as predicate acts under TENN. CODE.
ANN. §39-12-203 et seq. and TENN. CODE. ANN. §40-35-121(a) (2017), were not defined as a
criminal gang offenses in 2009 and 2010. The Ex Post Facto Clause of the Tennessee State
Constitution as interpreted by the Tennessee Supreme Court prevents these crimes from
being defined as criminal gang offenses in 2018 retroactively. State v. Pntitt, 510 S.W.3d
398, 417 (Tenn. 2016).
As such, Counts I and II of the Superseding Presentment are unconstitutional
violations of both the state and federal Ex Post Facto Clauses and are due to be dismissed.
8 The General Assembly amended the "gang-rela ted statutes" in 2012,2013, 2014, 2016, and 2017.
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CALDER FACTOR NO.2
"Every law that aggravates a crime or makes it greater than it was when committed."
As noted above in the analysis of the application of Calder Factor No. 1, Mr. High
has been charged as a participant in an alleged RICO Enterprise. In order for the District
Attorney to substantiate the charge, he must prove that Mr. High has engaged in a
"pattern of racketeering activity" of "criminal gang offenses with some financial gain or
benefit to the RICO Enterprise," here a criminal street gang. The inclusion of "criminal
street gangs" to the RICO statute, with the inclusion of predicate acts dating back to 1986,
is easily seen as "aggravation of the crimes which form the basis of the predicate acts."
When Mr. High corrunitted the offenses in 2009 and 2010, and plead guilty to these
offenses, he was not on notice that these crimes nor convictions would be seen as
predicate acts of a "pattern of racketeering activity" in the future and secondly, that these
offenses, again years later, would be classified as "gang offenses." Therefore, the
statutory amend~ents clearly have aggravated and made greater these prior offenses
than when the offenses were committed.
In analysis of Factor 2, the Court should look at the unique nature that these
statutory amendments have created for defendants such as Mr. High. The Defendant has
served his sentence on the hvo predicate acts alleged in the superseding Presentment,
then 8 and 9 years, respectively, later, be charged with another offense with its statutory-
required predicate acts those old convictions. Counsel would submit that these statutory
amendments have plainly aggravated and made greater the sentencing exposure
Mr. High is facing under these new charges that did not exist in 2009 or 2010.
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•,
Counsel would submit that this is clearly a violation of Factor 2 and as such, the
Court should dismiss Counts I and 11 as being unconstitutional ex post fact laws.
CALDER FACTOR NO.3
"Every law that changes the punishment and inflicts a greater punishment, than the law annexed to the crime, when committed."
The General Assembly, in passing TENN. CODE ANN. §40-35-121, included the
following: "(i) for purposes of establishing a "pattern of criminal gang activity" the
following offenses may be considered: (1) Criminal gang offenses, as defined by
subdivision (a)(3)(A), committed prior to July 1, 2013; and (2) Criminal gang offenses, as
defined by subdivision (a)(3)(B), committed on or after July 1, 2013."
In an attempt to have the required two predicate acts, the District Attorney General
used the aforementioned convictions from 2010 of Attempted Arson and Possession of a
Weapon from 2009. Attempted Arson was neither a criminal gang offense prior to July 1,
2013 nor after July 1, 2013. The District Attorney General's attempt to use these prior
offenses as predicate acts to substantiate a "pattern of racketeering activity" seeks to
impose additional and greater punishment for these offenses than when they were
committed.
Through the use of the" gang statutes," the punishment of the offenses themselves
(attempted arson and possession of a weapon) were not increased, but if the District
Page 9 of 13
I .
Attorney General alleged the offenses were "gang-related," the "gang enhancement"
would be triggered, and a defendant would be exposed to a greatly enhanced sentence.9
The statute, by its plain language, changes the possible punishment and inflicts a
greater punishment for offenses either under TENN. CODE ANN. §40-3~-121(i)(1) and (2).
This makes the statute's application retroactive in allowing the District Attorney General
to seek enhanced punishment for any "gang-related offense," and as the Pruitt Court
made clear by citing the United States Supreme Court, when a retroactive law alters the
definition of criminal conduct or increases the punishment for the crime it must fail the
test of the Ex Post Facto Clause. Pruitt, 510 S.W.3d at 416
The statutes at issue in this case clearly fall within this definition of a violation of
the Ex Post Facto Clause, and the Court should dismiss Counts I and II of the superseding
Presentment.
CALDER FACTOR NO.4
"Every law that alters the legal rules of evidence and receives less, or different testimony than the law required at the time of the commission of the offense, in order to convict the offender."
TENN. CODE ANN. §40-35-121 has altered the legal rules of evidence of "criminal
gang offenses" and altered the testimony required to prove a "criminal gang offense"
than the law required at the time of the commission of the offense.
TENN. CODE ANN. §40-35-121(h)(l) bifurcates the testimony and the proof
presented to a jury regarding the issues of (1) whether a criminal gang offense has been
9 A tv.•o- classification increase would be required upon conviction. For example, a conviction of a Class C felony would be sentenced as an A felony.
Page 10 of 13
.. ... '•
committed; and (2) if so, then the jury separately considers whether the accused was a
gang member at the time of the criminal gang offense.
The plain reading of this subsection has altered and requires different testimony
than what was required in 2009 or 2010. The District Attorney General's attempt to use
these convictions as "criminal gang offenses" now requires him to produce additional
proof and evidence in an attempt to persuade the jury those convictions were "criminal
gang offenses" and are predicate acts requisite to show a "pattern of racketeering
activity". The additional requirement of a separate proceeding for the District Attorney
General to provide the jury with testimony of alleged gang involvement did not exist in
2009 or 2010.
As discussed above, retroactive procedural changes, can be constitutional. But the
requirement of a bifurcated proceeding with each phase having different elements of
proof and different testimony, cannot be seen as "procedural" . This process is
substantive in that it operates as a sentencing phase of a trial. Should a jury convict an
accused of a criminal gang offense, the statute requires them to separately consider
whether the accused was at the time of the underlying offense a member of a criminal
gang. Upon an affirmative verdict, the statute requires the court to impose sentencing
enhancements when pronouncing judgment and sentence.
The retroactive application of this bifurcated process runs afoul of the Ex Post Facto
Clause. The legislature has altered the definition of certain criminal conduct and
reclassified acts as" criminal gang offenses" doubling or tripling the possible punishment
through this bifurcated proceeding.
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. '. . ..
Under the criteria of Factor 4, the statute is a violation of the Ex Post Facto Clause
and the Court should dismiss Counts I and II of the superseding Presentment.
CONCLUSION
Counsel would submit to the Court that the statutes at issue violate the Ex Post
Facto Clause of both the United States Constitution and the Constitution of the State of
Tennessee. If one of the four Calder Factors are present, then the law is unconstitutional.
All four factors are not required to be proven, only one. Counsel would submit to the
Court that the Tennessee statutes violate all four factors.
Wherefore, Mr. High having shown unto the Court that the statutes violate the Ex
Post Facto Clause, the Court must dismiss Counts I and II of the superseding Presentment.
Respectfully submitted,
By:--=--------------Steven G. Moore (BPR# 014701) 3001 S. Broad Street, Suite 101 Chattanooga, TN 37408 423.777.4061 (Tel) [email protected]
LAW OFFICES OF FISHER WISE, PLLC
By: f;.,\•r W;..._ (.,J~•lr 1.'1~ Fisher Wise (BPR# 027832) 3001 S. Broad Street, Suite 101 Chattanooga, TN 37408 423.498.2402 (Tel) 866.200.2949 (Fax) [email protected]
Attorneys for Courtney Higlz
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• 0
• •- I ..
CERTIFICATE OF SERVICE
I hereby certify that I have this day served a true and correct copy of the foregoing Motion by leaving said copy at the office of the District Attorney General, at the Justice Building, Chattanooga, Tennessee, this~ day f December 2018.
au~v-.
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