Tennessee Supreme Court Holds That Amendments To Theft Grading Statute Are Applicable When The Defendant Was Sentenced After The Effective Date

November 27, 2019

The Tennessee Supreme Court has held that the 2016 amendments to the theft grading statute are applicable when sentencing a defendant even where the offense occurred before the effective date of the amendments if sentencing occurred after the effective date.

The Public Safety Act of 2016, which took effect on January 1, 2017, amended the statute providing for grading of theft offenses.  Specifically, section 5 of the Act removed and replaced the stolen property value ranges for Class A misdemeanor, Class E felony, and Class D felony theft.  For instance, under the pre-2017 version of the statute, theft of property valued at $1,000 or more but less than $10,000 constituted a Class D felony, but after January 1, 2017, theft of the same amount could potentially constitute one of three separate offense classes: theft of exactly $1,000 (Class A misdemeanor); theft of more than $1,000 but less than $2,500 (Class E felony); or theft of $2,500 or more but less than $10,000 (Class D felony).

While a criminal offender generally must be sentenced pursuant to the statute in effect at the time of the offense, the legislature has enacted a Criminal Savings Statute, Tennessee Code Annotated section 39-11-112, which requires courts to apply a subsequent statute to a defendant’s sentencing if the subsequent statute “provides for a lesser penalty.”  A split of authority emerged among separate panels of the Court of Criminal Appeals concerning whether the amendments to the theft grading statute “provide[ ] for a lesser penalty,” therefore requiring the application of the “subsequent act.”

To resolve the conflict in the Court of Criminal Appeals’ decisions, the Tennessee Supreme Court granted permission to appeal in three cases, each of which involved a defendant who committed a theft offense prior to the effective date of the Public Safety Act but was sentenced in accordance with the amended theft grading statute.

The first defendant, Ashley N. Menke, pleaded guilty in 2016 for theft of property valued at $1,000 or more but less than $10,000, a Class D felony at the time of the offense.  However, she was sentenced after the amendments’ effective date pursuant to the amended statute.  The second defendant, Charles Keese, was convicted in 2015 of theft of property valued at $1,000 or more but less than $10,000.  Although his sentencing took place before the amendments’ effective date, he too was sentenced pursuant to the amended statute.  The third defendant, Michael Eugene Tolle, pleaded guilty in 2012 to theft of property valued at more than $500 but less than $1,000, a Class E felony at the time of the offense.  Following the revocation of his probation in 2017, the trial court modified the defendant’s offense class and sentenced him pursuant to the amended statute.  In each case, the State appealed the imposed sentence.

In each of its opinions, the Supreme Court first determined that the State had the right to appeal the sentence.  Next, the Court held that the Criminal Savings Statute does apply to the amendments to the theft grading statute.  Noting that the value of the stolen property is not an essential element of the offense of theft, the Court determined that the amendments, at least in effect, decreased the punishment for the defendants’ crimes.  Therefore, the “lesser penalty” language of the Criminal Savings Statute was satisfied, and the amended version of the theft grading statute applies even when the offense occurred before the effective date.

As a result, the Supreme Court concluded that the defendant in State v. Menke was appropriately sentenced by the trial court in accordance with the amended theft grading statute.  However, the Court determined that the trial court in State v. Keese erred in sentencing the defendant under the amended version of the theft grading statute when the sentencing occurred prior to its effective date and that the trial court in State v. Tolle exceeded its authority in modifying the offense class and sentence pursuant to the amended version of the statute following the revocation of the defendant’s probation.

To read the unanimous opinions in State v. Ashley N. Menke, State v. Charles Keese, and State v. Michael Eugene Tolle, all authored by Justice Roger A. Page, visit the opinions section of TNCourts.gov.