Opinion
No. 1:04-cr-036 Edgar.
December 20, 2004
MEMORANDUM AND ORDER
I. Introduction
Currently pending before the Court is the motion of defendant, Terry Eugene Penney, [Court File No. 30] for reconsideration of this Court's order [Court File No. 24] denying his motion to dismiss [Court File No. 22] counts 7 and 12 of the February 11, 2004 indictment [Court File No. 13]. In the alternative to reconsideration, defendant asks that his current motion be deemed a new motion to dismiss Counts 7 and 12 of the February 11, 2004 indictment [Court File No. 30].
The United States has filed a response to the defendant's motion to reconsider [Court File No. 39]. Consequently, the defendant's motion to reconsider is now ripe for review.
II. Background
Defendant was indicted on February 11, 2004 [Court File No. 13]. Count 7 of the indictment charged that on or about January 17, 2004, the defendant "having been previously convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess in and affecting commerce firearms and ammunition . . . in violation of Title 18, United States Code, Section 922(g)(1)." Id. at p. 3. Count 12 of the indictment also charges that on or about August 19, 2003, the defendant, "having been previously convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess in and affecting commerce firearms and ammunition . . . in violation of Title 18, United States Code, Section 922(g)(1)." Id. at 5.
In his March 11, 2004 motion to dismiss, defendant sought dismissal of Counts 7 and 12 of the indictment on the ground that he had not been convicted of a felony or offense punishable by imprisonment exceeding one year. [Court File No. 22]. Therefore, defendant argued he was not subject to criminal prosecution/punishment under 18 U.S.C. § 922(g)(1). Id.
More specifically, defendant asserted that the predicate offense relied on by the government for purposes of the crimes charged in counts 7 and 12 of the indictment, a 1976 state (Tennessee) charge for feloniously selling a controlled substance, is not a crime punishable by a term of imprisonment exceeding one year as defined in 18 U.S.C. § 921(a)(20). Id. Rather, defendant asserted that in connection with the 1976 state charges he was convicted only of a misdemeanor and sentenced to 11 months and 29 days incarceration, which was suspended on his good behavior. Id. at 2.
On March 25, 2004, this Court issued a Memorandum and Order denying defendant's motion to dismiss counts 7 and 12 of the indictment [Court File No. 24]. This Court found that in 1975, defendant was indicted by the State of Tennessee on charges of feloniously selling a controlled substance. In 1976, defendant entered a guilty plea to attempt to commit a felony under Tenn. Code Ann. § 39-603. At that time, Tenn. Code Ann. § 39-603 provided for an alternative sentencing scheme — under that statute, defendant could have been sentenced to up to five years imprisonment in the penitentiary, or he could have received imprisonment in the county jail for not more than one year, and a fine not exceeding five hundred dollars ($500).
This Court noted that a "crime punishable by imprisonment for a term exceeding one year" under 18 U.S.C. § 922(g)(1) is determined by state law. United States v. Cassidy, 899 F.2d 543, 546 (6th Cir. 1990). Further, the Court noted that both the Tennessee Supreme Court and the Tennessee Court of Criminal Appeals had concluded that under the law of Tennessee, attempt to commit a felony was a felony even though a defendant could receive either a felony or misdemeanor sentence. Rafferty v. State, 16 S.W. 728 (Tenn. 1891); State v. Seltzer, 1987 WL 4867 (Tenn.Ct.App. May 27, 1987). The Court further noted that the U.S. Court of Appeals had reached the identical conclusion in an unpublished opinion. United States v. Beazley, 1985 WL 13961 (6th Cir. Nov. 7, 1985). Consequently, the Court denied defendant's motion to dismiss counts 7 and 12 of the indictment against him. [Court File No. 22].
III. Defendant's Motion to Reconsider, or in the Alternative, New Motion to Dismiss [Court File No. 30].
In his motion to reconsider/new motion to dismiss, defendant asserts in pertinent part that:
5. The Defendant would show that he did not plead guilty to attempting to commit a felony. The Courtroom minutes from May 19, 1976, state that he pled guilty to selling a controlled substance, a misdemeanor . . .
6. In the alternative, this Defendant would show that he alleges new facts, additional grounds, and other arguments in support of his Motion to Dismiss Counts Seven (7) and Twelve (12) . . .
[Court File No. 30, p. 2].
Subsequent to this Court's order denying his motion to dismiss counts 7 and 12 of the indictment, [Court File No. 24] defendant filed his reply to the government's response to his motion to dismiss. [Court File No. 25]. Attached to defendant's reply brief are the courtroom minutes from the May 19, 1976 term of the Hamilton County Criminal Court, Division 1 [Court File No. 25, Exhibit A]. The courtroom minutes state in relevant part:
130199 State v. Terry Penny — Fel. Selling Controlled Substance
Came the Attorney General and the defendant in person with his attorney, Mr. Buck Dietzen, and this case came on for hearing before the Court without a jury on defendant's plea of guilty.
Upon defendant's plea and upon proof heard, it is adjudged by the Court that the defendant is guilty of Selling A Controlled Substance Schedule IV, and it is the judgment of the Court that the defendant serve a term of 11 months and 29 days at the Hamilton County Penal Farm, and pay all costs. Execution will issue against the defendant for the costs.
Execution of the judgement is further ordered withheld pending an investigation by the State Parole Office. Defendant is allowed 10 days within which to file a Petition for Suspended Sentence to be heard on June 28, 1976. No bond allowed.
130200 State v. Terry Penny — Fel. Selling Controlled Substance
Came the defendant in person with his attorney, Mr. Buck Dietzen, and the Attorney General, by leave and agreement, enters a nolle prosequi in the above case.
Hamilton County will pay the costs of this case when properly taxed and certified.
[Court File No. 25, Exhibit A, p. 18] (emphasis added).
The courtroom minutes from the June 28, 1976 term of the Hamilton County Criminal Court, Division 1 are also attached to defendant's reply brief. These courtroom minutes state in relevant part:
130199 State v. Terry Penny — Fel. Selling Controlled Substance
The above case came on for hearing on a Petition For Suspended Sentence heretofore filed by Mr. Buck Dietzen, and the Court, after hearing said petition, is of the opinion same is a proper case for the suspension of the sentence.
Said petition is, therefore, sustained and the sentence hereby suspended upon payment of the costs on or before July 9, 1976, and further conditioned upon the defendants' good behavior for a period of 5 years, under the supervision of the State Parole Office.
[Court File No. 25, Exhibit A, p. 513].
Attached to defendant's motion to dismiss is the May 19, 1976 judgment of the First Division of the Hamilton County Criminal Court in Case No. 130199 [Court File No. 22, Exhibit B]. The judgment states in relevant part that defendant was charged with fel. selling a controlled substance. Id. The judgment further states that:
Came the Attorney-General and the defendant in person, with his attorney, Mr. Buck Dietzen . . . Upon Defendant's plea, upon proof heard and arguments of counsel, is it therefore adjudged by the Court that defendant is guilty of ATTEMPT TO COMMIT A FELONY and it is the judgment of the Court that defendant be confined in the Penal Farm of Hamilton County for a term of 11 months 29 days and pay or secure all costs . . .Id. A marginal notation on the judgment states: "6/28/76 Judgment ordered into execution — petition for suspended sentence sustained on payment of costs on or before 7/30/76 and good behavior for 5 years under parole supervision." Id.
Also attached to defendants motion to dismiss is defendant's petition for probation. [Court File No. 22, Exhibit C]. The petition for probation states in relevant part that:
That on the 19th Day of May, 1976, the petitioner entered a plea of guilty of possession of marijuana, a misdemeanor, and was sentenced to the workhouse for a period of Eleven (11) months Twenty-Nine (29) days. The case was passed for an investigation by the probation officers.Id. at ¶ 1.
Having reviewed the record, the Court finds that defendant's contention that his conviction in May 1976 for Attempt to Commit a Felony was a misdemeanor is incorrect. First, the Court must rely on state law — in this instance, the law of Tennessee — to determine whether a defendant is subject to a federal firearms disability by virtue of a prior conviction. United States v. Cassidy, 899 F.2d 543, 546 (6th Cir. 1990).
Under the applicable law at the time, Tenn. Code Ann. § 39-603, defendant faced a potential prison term of five (5) years in May 1976. It is immaterial that defendant was sentenced to eleven (11) months and twenty-nine (29) days, because even if the sentence received is for less than one year, the conviction does not change from a felony to a misdemeanor. United States v. Beazley, 780 F.2d 1023 (Table), 1985 WL 13961 at **3 (6th Cir. Nov. 7, 1985).
The Tennessee Courts have long recognized that attempt to commit a felony is a felony charge. Rafferty v. State, 16 S.W.728 (Tenn. 1981); State v. Seltzer, 1987 WL 4867 at * 3 (Tenn.Ct.Cr.App. 1987). Further, the Sixth Circuit has held that a conviction under Tennessee's Attempt to Commit a Felony statute qualified as a predicate felony conviction for federal firearms disability purposes. Beazley, 1985 WL 13961 at *2 — *3.
Further, defendant's contention that the evidence submitted establishes that he was sentenced only to a misdemeanor is also without merit. The courtroom minutes for May 19, 1976, Hamilton County Criminal Court, Division No. 1, state that "[u]pon [the] defendant's plea and upon proof heard, it is adjudged by the Court that the defendant is guilty of Selling A Controlled Substance, Schedule IV . . ." [Court File No. 25, Exhibit A].
Apparently no transcript exists of either the May 19, 1976 or June 28, 1976 session in Hamilton County Criminal Court, Division I. On March 31, 2004, counsel for the defendant submitted the March 29, 2004 Affidavit of Abigail M. Pearce, the Official Court Reporter for the Hamilton County Criminal Court, Division I. Ms. Pearce's Affidavit certifies that she "listened to the official audiotapes for court proceedings held on May 19, 1976 and June 28, 1976, before Judge Campbell Carden and have found that there was no recording made relating to case [No. 130199] on either date." [Court File No. 31].
Defendant argues that the petition for probation filed by his then counsel on June 16, 1976, shows that "on the 19th day of May, 1976, [defendant Penney] entered a plea of guilty of possession of marijuana, a misdemeanor, and was sentenced to the workhouse for a period of Eleven (11) months Twenty-Nine (29) days . . ." [Court File No. 22, Exhibit C, ¶]. However, the exhibits submitted by defendant Penney along with his original motion to dismiss [Court File No. 22] and with his reply to the government's response to his motion to dismiss counts 7 and 12 of the indictment [Court File No. 25], belie the argument that on May 19, 1976 he either pled guilty to simple possession of marijuana or that the fact that he was sentenced to 11 months and 29 days shows that he pled guilty only to a misdemeanor, not a felony.
First, neither the Judgment of Conviction nor the courtroom minutes of May 19, 1976 mention simple possession of marijuana. The Judgment of Conviction of June 28, 1976, states that defendant was found guilty of "ATTEMPT TO COMMIT A FELONY . . ." [Court File No. 22, Exhibit B]. The courtroom minutes for May, 19, 1976, state that based upon the defendant's guilty plea to offense 130199 and the proof heard, Judge Campbell Carden found that defendant was guilty of "Selling A Controlled Substance, Schedule IV . . ." [Court File No. 25, Exhibit A].
Second, Tennessee law, Tenn. Code Ann. § 52-1432 prohibited "(1) the sale and (2) possession with intent to sell a controlled substance in subsection (a) and prohibits the possession of a controlled substance in subsection (b)." State v. Helton, 507 S.W.2d 117, 120 (Tenn. 1974). Under section 52-1432, "[a] violation of subsection (a) is a felony. A violation of subsection (b) is a misdemeanor. The offense of possession, prohibited in subsection (b), is a lesser included offense to that prohibited in subsection (a)." Id. Further, in order to reduce an action from a felony under section 52-1432 to a misdemeanor,
[t]he amount of drugs involved alone will not justify the reduction of an offense to mere possession without intent to sell. A casual exchange among individuals of a large amount of drugs will not reduce the offense. In order to reduce the offense to simple possession, it is required by T.C.A. 52 — 1432(a)(2) that there be "a casual exchange among individuals of a small amount of controlled substances . . ."Loveday v. State, 546 S.W.2d 822, 826 (Tenn.Ct.Cr.App. 1976) (citing Helton, S.W.2d at 120).
The May 19, 1976 courtroom minutes reflect that Judge Carden concluded that following the plea, the evidence showed that defendant was guilty of " Selling A Controlled Substance, Schedule IV . . ." [Court File No. 25, Exhibit A]. Thus, this offense would not have been the misdemeanor of mere possession of a controlled substance under Tenn. Code Ann. § 52-1432(b), it would have been a felony under § 52-1432(a).
In addition, Judge Carden found that defendant was guilty of "Selling A Controlled Substance, Schedule IV . . . [Court File No. 25, Exhibit A]. However, during the relevant time frame, "marijuana [wa]s classified in Schedule VI." Smithson v. State, 509 S.W.2d 526, 526 (Tenn.Crim.App. 1974) (citing Tenn. Code Ann. § 52 — 1422). Thus, the evidence shows that the characterization of defendant's plea in his own June 1976 Petition for Probation is not only not authoritative, but it is also a misstatement. First, the Petition for Probation is not a court generated document, it was the work product of defendant's own counsel. Second, the Court generated documents in the record, i.e., the May 19, 1976 courtroom minutes and the Judgment of Conviction, flatly contract defendants characterization of his 1976 conviction as a misdemeanor for the simple possession of marijuana.
Moreover, contrary to defendant's assertion the fact that he received a sentence of eleven (11) months and twenty-nine (29) days incarceration, which was ultimately suspended does not show that defendant's 1976 conviction was a misdemeanor and not a felony. In this instance, pursuant to a plea agreement, defendant Penney pled guilty to Attempt to Commit a Felony. The statutory definition of Attempt to Commit a Felony is:
Attempt to Commit Felony. If a person attempts to commit a felony or crime punishable by imprisonment in the penitentiary, where punishment is not otherwise prescribed, he shall on conviction be punished by imprisonment in the penitentiary not exceeding five (5) years, or, in the discretion of the jury, by imprisonment in the county workhouse or jail not more than one year . . .Beazley, 1985 WL 13961 at **2 (citing Tenn. Code Ann. § 39-1-501). At the time of defendant's guilty plea, Tennessee law, Tenn. Code Ann. 40 — 2703 "provide[d] for the commutation of felony sentences as follows:
In no case shall any person convicted of a felony be confined in the penitentiary for less than twelve (12) months. Whenever the minimum punishment is imprisonment in the penitentiaryfor one (1) year, but in the opinion of the jury the offense merits a less punishment, the jury may punish by confinement in the county jail or workhouse for any period less than twelve (12) months . . ."State v. Hughes, 512 S.W.2d 552, 553 (Tenn. 1974) (citing Tenn. Code Ann. § 40 — 2703). Moreover, the Court in Hughes noted that it had been "uniformly held that in all cases where the punishment prescribed by law is as low as 12 months in the penitentiary, the jury may punish by confinement in the county jail for any period of time short of twelve months." Id. (citing Jenkins v. State, 163 Tenn. 635, 45 S.W.2d 531 (1931)).
In 1976, defendant Penney entered a guilty plea, thus, the judge was the trier-of-fact for sentencing purposes in lieu of a jury. Accordingly, Hamilton County Criminal Court Judge Carden had the discretionary authority to commute defendant's felony sentence for Attempt to Commit a Felony.
Further, Tenn. Code Ann. § 40-21-101 provided in relevant part:
Whenever any person has been found guilty of a crime upon a verdict or a plea of guilty, all trial judges in the state having criminal jurisdiction are authorized and empowered to suspend the execution of sentence and place the defendant on probation, subject to such conditions as the trial judge may deem fit and proper . . . As used in this chapter, the word "defendant" means any person convicted of a misdemeanor or convicted of any felony, the maximum sentence for which has been fixed by a jury or by a judge as confinement in the state penitentiary for a period of ten (10) years or less, except in cases in which the defendant has been convicted of murder in the first degree, murder in the second degree, rape, unlawful carnal knowledge of a female under the age of twelve (12) years, robbery accomplished by the use of a deadly weapon, a second or subsequent violation of §§ 39-3-401, 39-3-402, 39-3-403, or 39-3-404, violation of § 39-6-471(a)(A) or (B), and in all other cases for which the minimum sentence provided by law is ten (10) years or more; and except in those cases in which the defendant has been convicted of two (2) or more felonies for which the maximum sentence provided by law exceeds ten (10) years' confinement in the state penitentiary.State v. Anthony, 733 S.W.2d 129, 130 (Tenn.Crim.App. 1987) (quoting Tenn. Code Ann. 40-21-101).
At the time of defendant's 1976 conviction, Tenn. Code Ann. § 40-21-101 was codified at Tenn. Code Ann. §§ 40 — 2901 through 40 — 2909. See Tennessee Code Annotated (Official Edition), volume 7A (2003), p. 365. Tenn. Code Ann. § 40-21-101 was repealed in 1989. Id.
Thus, contrary to defendant's assertions, neither the fact he was sentenced to eleven (11) months and twenty-nine (29) days incarceration in the county penal farm, nor the fact that this sentence was eventually reduced to five (5) years probation shows that he was convicted of a misdemeanor and not a felony.
Finally, in United States v. Holloway, 142 F.3d 437, 1998 WL 109987 (6th Cir. Mar. 4, 1998) (per curiam), the defendant challenged the sentence he received for his conviction of unlawfully possessing firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Id. at **1. Specifically, he asserted his prior Tennessee conviction for a felony drug offense was improperly used to increase his sentence because the State Court records failed to establish that he was convicted of a "controlled substance offense" within the meaning of U.S.S.G. § 2K2.1(7). Id. The Tennessee judgment revealed that Holloway had been convicted of conspiracy to possess a "Schedule IV drug as prohibited by [Tenn. Code Ann.] Section 39-17-417. Id. at **2. Defendant argued, however, that although the judgment referenced Tenn. Code Ann. § 39-17-417, the state court's minute entries did not. Id. at n. 1. He asserted that as there was a discrepancy, the federal courts should rely on the minute entries rather than the judgment to "determine the true nature of his conviction." The Sixth Circuit rejected this arguments stating that
[b]ecause a court speaks through its judgment. Chapman v. United States, 247 F.2d 879, 881 (6th Cir. 1957), cert. denied, 356 U.S. 945, 78 S. Ct. 791, 2 L.Ed.2d 820 (1958), not its minute entries, we reject [defendant's] argument. See Williams v. Brown, 921 F.2d 277 (6th Cir. 1990) (unpublished) ("[T]he language in the judgment is controlling.").Id.
In addition, defendant asserts, relying on Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969), that there is no indication that his state court guilty plea was knowingly and voluntarily made. In Boykin, the Supreme Court stated that it would not presume that a guilty plea is voluntarily made from a silent record. Id., 395 U.S. at 242, 855 S. Ct. at 1712.
Attached as Exhibit E to the addendum to the defendant's reply brief to the government's response to his motion to dismiss counts seven (7) and twelve (12) of the indictment is the affidavit of Abigail M. Pearce, the official court reporter for Division I of the Hamilton County Criminal Court. [Court File No. 31, Exhibit E]. In her affidavit, Ms. Pearce states that she has listened to the official audiotapes for May 19, 1976 and June 28, 1976 before Judge Campbell Carden and there is no recording on either date related to the case of State of Tennessee v. Penney, Case No. 130199. Id.
In Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L.Ed.2d 391 (1992), the State of Kentucky charged Raley with being a persistent felony offender, which required that Raley be convicted of a felony after having been convicted of two prior felonies. Id., 506 U.S. at 23, 113 S.Ct. 517. Raley had never challenged the two predicate, prior felony convictions. However, he sought to suppress them in the persistent felony offender proceeding "arguing that they were invalid under Boykin because the records did not contain transcripts of the plea proceedings and hence did not affirmatively show that [his] guilty pleas were knowing and voluntary." Id.
On appeal, the Sixth Circuit had rejected the burden-shifting scheme used by Kentucky. Under Kentucky's burden shifting scheme, a prior judgment is presumed valid and the defendant may offer rebuttal evidence showing that the conviction was not valid. Id., 506 U.S. at 29, 113 S. Ct. 517. The Sixth Circuit rejected Kentucky's burden shifting scheme in light of Boykin on the grounds that if a defendant were unable to offer rebuttal evidence, the Kentucky burden shifting scheme would allow the state "to carry its burden of persuasion upon a `bare record of a conviction'". Id.
The Supreme Court reversed stating:
We seen no tension between the Kentucky scheme and Boykin. Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. [Raley], however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate . . . proceeding. To import Boykin's presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the "presumption of regularity" that attaches to final judgments, even when the question is waiver of constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 464, 468 (1938) . . . [Raley], by definition, collaterally attacked his previous convictions; he sought to deprive them of their normal force and effect in a proceeding that had no independent purpose other than to overturn the prior judgments. See Black's Law Dictionary 261 (6th ed. 1990) . . .
There is no good reason to suspend the presumption of regularity here. This is not a case in which an extant transcript is suspiciously "silent" on the question whether the defendant waived constitutional rights. Evidently no transcripts or other records . . . exist at all . . . The circumstance of a missing or nonexistent record is, we suspect, not atypical, particularly when the prior conviction is several years old . . . On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights . . .Id., 506 U.S. at 29-30, 113 S. Ct. 517.
That is the situation here. In this instance, defendant Penney seeks to challenge the validity of a guilty plea in a situation where the State Court judgment is not only "final," but more than a quarter century has elapsed since the judgment became final. Further, Penney seeks a presumption that his state court guilty plea was not knowingly and voluntarily made based upon no allegation other than a transcript of the plea proceeding is unavailable. Under such situation, and in light of Raley, supra, the Court sees no reason to presume from the mere unavailability of a transcript of the May 19, 1976 and June 28, 1976 court proceedings, either that defendant was not advised of his rights or that his state court guilty plea was not knowing and voluntary.
Lastly, the defendant asserts that as the result of his 1976 conviction he never lost the right to possess a firearm and, therefore, cannot be a felon in possession for purposes of 18 U.S.C. § 922(g)(1) as charged in counts seven (7) and (12). It its response, the government concedes that:
[i]n the case at bar, the defendant correctly points out that prior to May 18, 1981, only certain felonies rendered a convict infamous. The defendant's conviction for Attempt to Commit a Felony (Selling a Schedule IV controlled substance) was not an infamous crime at the time he was convicted in 1976.
[Court File No. 39, p. 33].
However, the government correctly points out that this fact is not dispositive of the issue as the defendant had a state law restriction on his ability to carry a firearm at the time of his arrest. The Sixth Circuit has held that
in cases involving 18 U.S.C. § 922(g)(1), the federal courts should examine state law solely for the purpose of determining whether the state has restored felons to their full civil rights, including allowing them to possess firearms. If so, then the state has effectively vouched for its convicted felons, declaring them free of stigma and worthy of equal treatment by the federal government.United States v. Driscoll, 970 F.2d 1472, 1480 (6th Cir. 1992), cert. denied, 506 U.S. 1083, 113 S. Ct. 1056 (1993)).
Tenn. Code Ann. § 39-17-1307(b)(1) states:
(b)(1) A person commits an offense who possesses a handgun and:
(A) Has been convicted of a felony involving the use or attempted use of force, violence or a deadly weapon; or
(B) Has been convicted of a felony drug offense.
In State v. Ferguson, 106 S.W.3d 665 (Tenn.Ct.App. 2003), the defendant was indicted by the Lawrence County (Tennessee) Grand Jury on two charges, one of which was, possession of a controlled substance (cocaine) for the purpose of resale. Id. at 666. Defendant was found guilty of "Attempt to Commit a Felony." Id. He was sentenced to two concurrent terms of three years, but was granted six years immediate probation and a $2,500 fine. Id.
Once he had paid the fine, defendant petitioned the Lawrence County Circuit Court to restore his citizenship rights and in December 1991, the Court did so. Id. Subsequently, Ferguson applied for a handgun permit, indicating on the permit application form that he had not been convicted of a felony. Id. Thereafter in May 2001, a judge of the Lawrence County Circuit Court entered a order "clarifying the effect of the 1991 order," which "went on to declare that all of Mr. Ferguson's [Tennessee] constitutional rights, including the right to keep and bear arms had been restored." Id.
The Lawrence County District Attorneysought reconsideration of the 2001 order arguing that under Tenn. Code Ann. § 39-17-1307(b)(1)(B), individuals such as Ferguson who had been convicted of a drug felony were prohibited from possessing a firearm. Id. At the reconsideration hearing, Ferguson's counsel asserted that his client's conviction for attempt to commit a felony should not be considered a drug conviction because it made no reference to the nature of the felony involved. Id. at 666-667. The Lawrence County Circuit Court trial judge accepted Ferguson's argument.
On appeal, the Tennessee Court of Criminal Appeals reversed stating:
There is no proof, however, that Mr. Ferguson pled guilty to any crime other than attempt to possess a Schedule II substance for purposes of resale. The record contains only speculation that he might have or could have pled to a difference offense, if the prosecutor had decided to skirt the requirements of the law. We note that if Mr. Ferguson had been prosecuted for a violation of Tenn. Code Ann. § 39-17-1307, he would not have had to prove anything, and the State would have had to prove its case beyond a reasonable doubt. But the burden of proof on a petition to restore citizenship must necessarily fall more heavily on the petitioner. We therefore believe that Mr. Ferguson is not entitled to have his right to keep and bear arms restored.Id. at 668.
In State v. Johnson, 79 S.W.3d 522 (Tenn. 2002), the defendant pled guilty to one count of unlawful possession of a weapon, a class E felony under Tennessee law, and one count of simple possession of marijuana. Id. at 525. On appeal to the Supreme Court of Tennessee, Johnson certified the following question of law for appeal under Tenn. R. Crim. P. 37:
After an individual has had his full rights of citizenship restored pursuant to Tenn. Code Ann. § 40-29-101, et seq., following a conviction of aggravated assault with a deadly weapon, can he be convicted of a violation of Tenn. Code Ann. § 39-17-1307(b)(1)(A) or is he allowed to possess a handgun?Id.
The Supreme Court of Tennessee specifically held that under Tenn. Code Ann. § 39-17-1307(b)(1)(A) the
[Tennessee] legislature intended that a person who has been convicted of a felony involving the use or attempted use of force, violence, or a deadly weapon cannot possess a handgun, even were his or her citizenship rights have been restored pursuant to Tenn. Code Ann. § 40-29-101, et seq.Id. at 528. The Tennessee Supreme Court further observed that Tenn. Code Ann. § 39-17-1307(b)(1) "demonstrated the [Tennessee] legislature's clear intent to prohibit convicted violent felons from possessing a handgun . . ." Id.
Further, in reaching its conclusion the Tennessee Supreme Court specifically rejected Johnson's argument that Tenn. Code Ann. § 39-17-1308 demonstrated that any restoration of citizenship rights under Tennessee law included the right to possess a handgun. Tenn. Code Ann. § 39-17-1308 states, inter alia, that it is a "defense to the application of § 39-17-1307 if the possession of carrying [of a weapon] was . . . [a]t the person's . . . [p]lace of residence." Id. at 527 (citing Tenn. Code Ann. § 39-17-1308(a)(3)(A) (1997 Supp. 2001). However, the Tennessee Supreme Court noted that Johnson's argument was flawed because Tenn. Code Ann. § 39-17-1308 also expressly stated that "the defenses described in this section are not available to persons described in § 39-17-1307(b)(1)." Id. (citing Tenn. Code Ann. § 39-17-1308(b)).
In this instance, the judgment states that defendant Penney was found guilty of Attempt to Commit a Felony. [Court File No. 22, Exhibit B]. However, the courtroom minutes note that the ". . . defendant is guilty of selling a controlled substance schedule IV . . ." [Court File No. 25, Exhibit A, p. 18].
As the Court noted previously, a "court speaks through its judgment." Holloway, 1998 WL 109987 at **2. Consequently, the Court has considered the June 1976 state court judgment in order to determine that defendant pled guilty to an offense which was a felony under state law; namely, attempt to commit a felony. The courtroom minutes, however, clearly shed light on the nature of the felony which defendant Penney attempted to commit, i.e., the felony involved the selling of a schedule IV controlled substance. The Court has considered the courtroom minutes only to the extent that they show that the felony in the 1976 judgment was an offense which involved a controlled substance which was classified as a schedule IV controlled substance. The Court has not, however, considered the courtroom minutes for the purpose of varying the 1976 state court judgment.
Thus, the Court finds that applying the decisions and rationale of Ferguson and Johnson, supra, even though defendant Penney's crime was not an "infamous" crime at the time of his guilty plea, at the time of his arrest on the charges pending in counts seven (7) and twelve (12) of the indictment, he was prohibited from possessing a handgun under Tenn. Code Ann. § 37-13-1307(b)(1)(B).
Further, although Johnson addressed Tenn. Code Ann. § 37-17-1307(b)(1)(A) rather than § 37-17-1307(b)(1)(B), in light of the reasoning used by the Supreme Court of Tennessee in Johhson, the Court concludes that the holding of that case would apply to Tenn. Code Ann. § 37-17-1307(b)(1)(B) as well.
Tenn. Code Ann. § 39-17-1351(b) provides that:
Except as provided in subsection (r), any resident of Tennessee who has reached twenty-one (21) years of age may apply to the department of safety for a handgun carry permit. If the applicant is not prohibited from purchasing or possessing a firearm in this state pursuant to . . . § 39-17-1307(b) . . . or any other state or federal law and the applicant otherwise meets all of the requirements of this section, the department shall issue a permit to the applicant.
Further, Tenn. Code Ann. § 39-17-1351(j)(3) provides in relevant part:
(j) The department shall not deny a permit application if:
. . .
(3) The applicant, who was rendered infamous or deprived of the rights of citizenship by judgment of any state or federal court, has had the applicant's full rights of citizenship duly restored pursuant to procedures set forth within title 40, chapter 29, or other federal or state law, provided, however that the provisions of this subdivision (j)(3) shall not apply to any person who has been convicted of burglary, any felony offense involving violence or use of a firearm or any felony drug offense involving a Schedule I, II, III, IV, or V controlled substance . . .
Tenn. Code Ann. § 39-17-1351(b), (j). Tenn. Code Ann. § 39-17-1351 was enacted by the Tennessee legislature in 1996. Tenn. Code Ann. §§ 39-17-1307, 1308 were enacted in 1989.
Pursuant to 18 U.S.C. § 921(a)(20) there is not a prior "conviction" under 18 U.S.C. § 922(g)(1) if under state law the defendant's rights have been restored ". . . unless such . . . restoration of civil rights expressly provides that the person may not . . . possess . . . firearms." Title 18 U.S.C. § 921(a)(20). (Emphasis added). This is the so called "unless" clause. Thus, although defendant was not prohibited from possessing a firearm at the time of his guilty plea, at least since 1996 under Tenn. Code Ann. § 39-17-1351, he has been ineligible to obtain a handgun permit because of his 1976 conviction. Therefore, pursuant to Caron v. United States, 524 U.S. 308 (1988), the "unless" clause of 18 U.S.C. § 921(a)(20) is activated; and, therefore, defendant may not possess a handgun under federal law.
Moreover, as the Court has explained in detail previously, despite the actual sentence imposed, defendants 1976 conviction was a "crime punishable by imprisonment for a term exceeding one year;" and, thus, defendant is a person who is prohibited from possessing a firearm under 18 U.S.C. § 922(g)(1). Caron v. United States, 524 U.S. 308 (1988); United States v. Campbell, 256 F.3d 381, 392 (6th Cir. 2001); United States v. Cassidy, 809 F.2d 543, 550 (6th Cir. 1990); United States v. Williams, 134 F.Supp.2d 851, 852-53 (E.D. Mich. 2001), aff'd, United States v. Williams, No. 02-1663, 2003 WL 2217520 (6th Cir. Sept. 18, 2003).
Further, the Court finds that application of Tenn. Code Ann. § 39-17-1351(j)(3) is not unconstitutional in light of the Ex Post Facto Clause of the United States Constitution when applied to defendant Penney. As noted previously, it was not until 1996 that defendant Penney's right to possess a firearm was affected by this statute. This subject was discussed by the Sixth Circuit in United States v. Campbell, 256 F.3d 381 (6th Cir. 2001), in connection with a similar fact pattern posed by Michigan law. The Sixth Circuit Court of Appeals observed that the Michigan courts have held that a Michigan statute which is somewhat akin to Tenn. Code Ann. § 39-17-1351 was not an infliction of further punishment upon those who had prior felony convictions, but was instead an effort to protect the public. Campbell, 256 F.3d at 393-94. It was also pointed out that the defendant in Campbell was not being sanctioned for any act he performed prior to the enactment of the Michigan statute; rather, what was being sanctioned was the defendant's recent or present act of possession of a firearm. Id; see People v. Tice, 558 N.W.2d 245, 246-47 (Mich.Ct.App. 1997). Although in Campbell the Sixth Circuit based its ultimate decision on another ground, it did observe that it found the aforementioned reasoning "persuasive." Campbell, 256 F.3d at 393.
In the instant action, Terry Penney has been indicted in count seven for unlawfully possessing a firearm on or about January 17, 2003, and in count twelve for unlawfully possessing a firearm on or about August 19, 2003. He had been prohibited under Tennessee law from possessing a firearm at least since the enactment of Tenn. Code Ann. § 39-17-1351(j)(3). That statute did not provide for nor result in criminal sanctions for anything Mr. Penney had done prior to 1996. Rather, the statute was an exercise of the police power of the State of Tennessee to make Mr. Penney ineligible to possess a firearm. Therefore, the Court finds it is not an ex post facto law.
Accordingly, the motion of defendant Terry Penney [Court File No. 30] for reconsideration of this Court's order denying his motion to dismiss counts seven (7) and twelve (12) of the February 11, 2004 indictment is DENIED.
SO ORDERED.