Case Information
*1 IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
May 1, 2013 Session in Knoxville
DERRICK BRANDON BUSH v. STATE OF TENNESSEE
Aрpeal by Permission from the Court of Criminal Appeals
Criminal Court for Sumner County
No. 308-2011 Dee David Gay, Judge
No. M2011-02133-SC-R11-PC - Filed January 28, 2014
This appeal concerns the retroactive application of
Ward v. State
,
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed
W ILLIAM C. K OCH , J R ., J., delivered the opinion of the Court, in which G ARY R. W ADE , C.J., J ANICE M. H OLDER , C ORNELIA A. C LARK , and S HARON G. L EE , JJ., joined.
Branden Bellar, Carthage, Tennessee, for the appellant, Derrick Brandon Bush. Robert E. Cooper, Jr., Attorney General аnd Reporter; William E. Young, Solicitor General; John H. Bledsoe, Senior Counsel; L. Ray Whitley, District Attorney General; Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. On December 4, 2000, eighteen-year-old Derrick Brandon Bush pleaded guilty to two counts of attempted rape in the Criminal Court for Sumner County. The written plea agreement reflected Mr. Bush’s understanding (1) that each count carried a minimum penalty of three years and a maximum penalty of six years, (2) that, if his plea was accepted by the trial court, the sentence for each count would be four years, (3) that the sentences would be served consecutively, resulting in an effective sentence of eight years, (4) that he would serve one year in the Sumner County jail, and (5) that he would serve the remaining seven years on “state probation.”
During the submission hearing, both the prosecutor and the trial court described Mr. Bush’s sentence as “an effective eight-year sentence.” When the trial court asked Mr. Bush, “So what is the effective sentence that you’re getting here today?” Mr. Bush answered, “Eight yeаrs.” Accepting Mr. Bush’s guilty plea, the trial court declared:
[T]he agreed sentence on each of those [counts] will be four years. They will be consecutive to each other for an eight-year sentence, one year in jail, the balance on probation, and I have gone over with you those conditions. You may not appeal from this.
No mention was made during the hearing that, by pleading guilty to attempted rape, Mr. Bush would be subject to community supervision for life in accordance with Tenn. Code Ann. § 39-13-524(a)(3) (2010 & Supp. 2013).
Thereafter, the State prepared the judgment documents relating to Mr. Bush’s December 4, 2000 guilty pleas and submitted them to the trial court for approval and signature. The line for the signature of Mr. Bush’s lawyer was left blank, and the record does *3 not reflect that either Mr. Bush or his attorney participated in preparing the judgments or that they were even aware of their contents. The judgment form for count one, filed on December 11, 2000, stated that Mr. Bush would be placed on “lifetime supervision upon release.”
Mr. Bush did not learn that he had been placed on community supervisiоn for life until sometime after he had been released from custody. He did not immediately challenge this additional restraint after he learned about it.
Years passed, and on July 7, 2010, this Court filed its opinion in
Ward v. State
, 315
S.W.3d 461 (Tenn. 2010). We held in
Ward
that a sentence to lifetime community
supervision “is a direct and punitive consequence of a plea of guilty to the crimes enumerated
in Tennessee Code Annotated section 39-13-524(a).”
Ward v. State
,
We recognized this duty because it preserves the integrity of plea bargains in
Tennessee courts and prevents violations of the constitutional right to due process by
ensuring that any plea represents a defendant’s voluntary and knowing choice between the
essential terms of the plea agreement and a contested trial. ,
On April 25, 2011, Mr. Bush filed a pro se petition for relief under the Post- Conviction Procedure Act. The Act permits a state prisoner to seek relief from a [1]
“conviction or sentence [that] is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
“Time is of the essence” when pursuing relief under the Post-Conviction Procedure Act. Tenn. Code Ann. § 40-30-102(a). Accordingly, prisoners seeking post-conviction relief must file their petitions within one year from the date on which the judgment of conviction becomes final or from the date of the last state court action on direct appeal. Tenn. Code Ann. § 40-30-102(a).
*4 However, the General Assembly has provided three express exceptions to this statute of limitations. The first of these exceptions permits post-conviction courts to consider an untimely petition for post-conviction relief when
[t]he 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 trial, if retrospective application of that right is required. The petition must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial.
Tenn. Code Ann. § 40-30-102(b)(1). With regard to this exception, Tenn. Code Ann. § 40- 30-122 states that “[a] new rule of constitutional criminal law shall not be applied retroactively in a post-conviction proceeding unless the new rule . . . requires the observance of fairness safeguards that are implicit in the concept of ordered liberty.” We will return to Tenn. Code Ann. § 40-30-122 later in the opinion.
In his post-conviction petition, Mr. Bush characterized ’s holding as a new rule of constitutional criminal law requiring retroactive application. He also asserted that his guilty plea in 2000 was not voluntary or knowing because he was not aware that he would be subject to community supervision for life. In the alternative, Mr. Bush argued that the Post-Conviction Procedure Act’s one-year statute of limitations should be tolled on due process grounds.
The post-conviction court held an evidentiary hearing on September 8, 2011. At the conclusion of the hearing, the court found that: (1) “the fact that the defendant was required to be on supervision for life was never, ever revealed to the defendant by his attorney,” (2) “during the submission hearing the fact that he would be on supervision for life was not mentioned,” and (3) “lifetime supervision on release was added [to the judgment], but it is also clear that the defendant never, ever saw this provision.” Based on these findings, the trial court determined that the statute of limitations should be tolled on due process grounds and that Mr. Bush’s guilty plea was not voluntary and knowing because “[t]he Defendant was not informed of the mandatory requirement for Community Supervision for Life.”
The State appealed, and the Court of Criminal Appeals reversed the post-conviction
court’s judgment.
Bush v. State
, No. M2011-02133-CCA-R3-PC,
The Court of Criminal Appeals also determined that оur holding in
Ward v. State
did
not require retroactive application even though it announced a new rule of constitutional law.
In conducting its retroactivity analysis, the appellate court attempted unsuccessfully to
reconcile the “differing statutory and common law approaches” to retroactivity.
Bush v.
State
,
We granted Mr. Bush’s Tenn. R. App. P. 11 application for permission to appeal to address the confusion noted by the Court of Criminal Appeals regarding retroactivity determinations in post-conviction proceedings. Arguably, the retroactive effect of a constitutional ruling is a purely judicial question. Nevertheless, in the limited context of post-conviction proceedings, we recognize that the General Assembly has adopted а retroactivity standard that is codified at Tenn. Code Ann. § 40-30-122. Although this Court previously adopted a different retroactivity standard, we now instruct Tennessee’s courts to use Tenn. Code Ann. § 40-30-122 to determine whether criminal procedural rulings emanating from the Constitution of Tennessee apply retroactively to post-conviction petitioners. Applying Tenn. Code Ann. § 40-30-122’s retroactivity standard, we have determined that our holding in Ward v. State does not require retroactive application. We also find that Mr. Bush’s case does not warrant due process tolling of the post-conviction statute of limitations.
In the remainder of this opinion, we will (1) discuss our holding in Ward v. State ; (2) briefly explore the history of the retroactivity of new constitutional rules and the origin of Tennessee’s two retroactivity standards; (3) explain the standard that shall apply to future cases; (4) apply that retroactivity standard to our decision in ; and then (5) determine whether Mr. Bush’s case warrants due process tolling of the post-conviction statute of limitations.
II.
The case of Marcus Ward is very similar to Mr. Bush’s case. On June 8, 2005, Marcus Ward pleaded guilty to a variety of charges that included one count of aggravated sexual battery. Under Tennessee law, a person convicted of this crime must be placed on the *6 internet sex offender registry and receive a mandatory “sentence of community supervision for life.” Tenn. Code Ann. §§ 39-13-524 to -526 (2010 & Supp. 2013); 40-39-201 to -215 (2012 & Supp. 2013). However, the trial court did not tell Mr. Ward that his plea would [2]
result in these two consequences. On July 11, 2005, Mr. Ward filed a timely petition for
post-conviction relief. He alleged that his plea was not “knowing and voluntary” because
he was not aware of the plea’s full consequences. The trial court decided that the sex
offender registry and lifetime community supervision were “collateral” consequences of the
plea, rather than “punitive” and “direct” consequences, and that Mr. Ward was therefore not
entitled to relief.
Ward v. State
,
In our analysis of Mr. Ward’s case, we noted that when a defendant enters a guilty
plea, he or she waives several constitutional rights, including the right against
self-incrimination, the right to a trial by jury, and the right to confront his or her accusers.
To pass constitutional muster under the Due Process Clause of the United States
Constitution, a guilty plea must be entered knowingly, voluntarily, and intelligently. To meet
this standard, a plea must represent a voluntary and intelligent choice among the available
alternatives. ,
We also explained that a plea is not voluntary unless the defendant understands the consequences of the plea and that a plea is not voluntary if it results from ignorance, misunderstanding, coercion, inducements, or threats. Thus, we explained that the record of a plea colloquy must affirmatively demonstrate that the defendant was aware of the significant consequences of the plea. Otherwise, the plea would not amount to an “intentional abandonment of a known right.” Accordingly, we held that the trial court must discuss the consequences of the plea with the defendant to ensure the defendant “has a full understanding of what the plea connotes and of its consequences.” Ward v. State , 315 S.W.3d at 465-66.
While registration as a sex offender is a collateral consequence of a conviction, we held that a mandatory sentence of lifetime community supеrvision was a direct and punitive consequence of Mr. Ward’s guilty plea. We explained why lifetime supervision is a more grievous sanction than “collateral” consequences such as sex offender registration and a defendant’s parole requirements. We also explained that lifetime community supervision is “punitive in effect,” because it requires the defendant
*7 to regularly report to a parole officer who is granted wide discretion in imposing supervisory requirements, and to pay a monthly fee. The imposition of lifetime supervision and the attendant consequences placed on an individual after having served his or her entire sentence of incarceration and/or regular parole are significant.
Ward v. State
,
We note at this juncture that Mr. Bush’s plea colloquy suffered from the same defects
as Mr. Ward’s. The post-conviction court found that (1) “the fact that the defendant was
required to be on supervision for life was never, ever revealed to the defendant by his
attorney,” (2) “during the submission hearing the fact that he would be on supervision for
life was not mentioned,” and (3) “lifetime supervision on release was added [to the
judgment], but it is also clear that the defendant never, ever saw this provision.” Appellate
courts are bound by the post-conviction court’s underlying findings of fact unless the
evidence preponderates against them.
Whitehead v. State
, 402 S.W.3d 615, 621 (Tenn.
2013);
Dellinger v. State
,
The difference between Mr. Bush’s case and Mr. Ward’s case is a difference in timing. Mr. Ward sought post-conviction relief one month after he was sentenced. Mr. Bush did not petition for relief until almost ten years after the judgment against him was finalized. Mr. Bush did, however, file his petition less than one year after we decided Ward . Under Tennessee’s Post-Conviction Procedure Act, no court may consider Mr. Bush’s late petition unless Ward announced a new rule of constitutional criminal procedure that requires retroactive application. Tenn. Code Ann. § 40-30-102(b)(1). Accordingly we will now address the background and contours of the retroactivity of new constitutional rules.
III.
The United States Supreme Court fashioned the doctrines governing the retroactivity of new constitutional rules in the context of federal habeas corpus challenges to the constitutionality of criminal convictions in state courts. During the Twentieth Century, the *8 federal courts recognized or established many rules of constitutional criminal procedure and routinely applied these rules retroactively to state prisoners seeking federal habeas corpus review of their convictions.
The Court eventually decided that, in many circumstances, collateral review of state criminal convictions would be better left to the state courts. Therefore, beginning in 1965, [3]
the Court began to narrow the scope of habeas corpus review based largely on concerns relating to “comity, federalism, and finality of judgment.” One of the ways the Court [4]
narrowed the scope of federal habeas corpus review was to modify the principles governing the retroactivity of new constitutional rules.
In
Linkletter v. Walker
,
The watershed case on the federal retroactivity doctrine is
Teague v. Lane
, 489 U.S.
288 (1989), in which the Court announced the current federal standard. In
Teague v. Lane
,
an all-white jury convicted an African-American defendant of three counts of attempted
murder and other related crimes. Over Mr. Teague’s objections, the prosecutor used all ten
of his peremptory challenges to strike potential jurors who were African-American. The
Illinois state courts upheld the conviction, and Mr. Teague filed a petition for writ of habeas
*9
corpus in the United States District Court.
Teague v. Lane
, 489 U.S. at 292-93. In his
petition, Mr. Teague relied on the recent decision in
Batson v. Kentucky
,
When Teague v. Lane reached the United States Supreme Court, the Court declined to hold Illinois to the standard it had announced in Batson v. Kentucky , based on considerations of federalism and comity. Instead, the Court announced a new, narrower federal retroactivity standard that preserved a high degree of deference to the states. The Court both defined which rules should be considered “new,” and which new rules warranted retroactive application. The Court described a new rule as follows:
It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.
Teague v. Lane
,
First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.
Second, a new rule should be applied retroactively if it requires the observance of those procedures that are implicit in the concept of ordered liberty.
Teague v. Lane
,
In addition, the Court explained that procedures that are “implicit in the cоncept of
ordered liberty” should be understood as “watershed rules of criminal procedure” or “those
new procedures without which the likelihood of an accurate conviction is seriously
diminished.” The Court believed it was “unlikely that many such components of basic due
process have yet to emerge.”
Teague v. Lane
,
Accordingly, Teague v. Lane replaced the prior standard for determining retroactivity in federal habeas corpus review of state convictions with a standard that grants significant deference to state courts. In other words, Teague v. Lane stands most clearly for the proposition that federal habeas corpus courts should grant relief only when state courts refuse to honor clearly-established rights provided by the United States Constitution or federal law. See, e.g. , Richard H. Fallon Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies , 104 Harv. L. Rev. 1731, 1816 (1991).
Almost twenty years after the
Teague v. Lane
decision, the United States Supreme
Court emphasized in
Danforth v. Minnesota
,
[T]he remedy a state court chooses to provide its citizens for violations of the Federal Constitution is primarily a question of state law. Federal law simply sets certain minimum requirements that States must meet but may exceed in providing appropriate relief. [The federal retroactivity precedents] provide no support for the proposition that federal law places a limit on state authority to provide remedies for federal constitutional violations.
Danforth v. Minnesota
,
IV.
This Court never adopted the
Linkletter
standard or the
Teague
standard. In fact, in
Meadows v. State
,
The question in Meadows v. State was whether the rule we announced in State v. Jacumin , 778 S.W.2d 430 (Tenn. 1989), should apply retroactively to post-conviction petitioners. While the Post-Conviction Procedure Act lacked an express retroactivity provision prior to 1995, the Act specified that persons seeking post-conviction relief could obtain relief based on a violation of a constitutional right “that was not recognized as existing at the time of trial if either constitution requires retrospective application of that right.” Tenn. Code Ann. § 40-30-105 (1990).
In
State v. Jacumin
, we decided that Tennesseе courts would no longer follow the
federal courts’ treatment of informants under the Fourth Amendment. We noted that other
states had decided that the federal standard described in
Illinois v. Gates
, 462 U.S. 213
(1983), had become “unacceptably shapeless and permissive” and “nebulous.”
State v.
Jacumin
,
Mr. Meadows’s drug convictions had been upheld under the
Illinois v. Gates
standard.
He petitioned for post-conviction relief, asking that his case be re-evaluated under
State v.
Jacumin
.
Meadows v. State
,
The Court first determined that
State v. Jacumin
announced a new rule. For this
question, the Court wholeheartedly adopted the language from
Teague v. Lane
,
The Court observed that prior to 1965, courts applied all new constitutional rules of
criminal procedure retroactively, but that this changed after the United States Supreme Court
decided
Linkletter v. Walker
,
a new rule of federal constitutional law will not be given retroactive application to cases on collateral review unless (1) the rule places certain kinds of primary, private individual conduct beyond the power of the state to proscribe, or (2) the rule requires the observance of procedures implicit in the concept of ordered liberty.
Meadows v. State
,
At this point, the Court made two seminal observations. First, the Court stated that
“states are bound by federal retroactivity analysis when a new federal rule is involved.”
Meadows v. State
,
that state courts are free to determine what retroactive effect will be accorded
pronouncements of state law”
Meadows v. State
,
[W]e have stated that newly announced state constitutional rules will be given retroactive application to cases which are still in the trial or appellate process at the time such rules are announced, unless some compelling reason exists for not so doing. State v. Robbins ,519 S.W.2d 799 , 800 (Tenn. 1975). In post-conviction proceedings, we have considered retroactive application necessary when the new state rule enhances the integrity and reliability of the fact finding process of the trial.
Hellard v. State ,629 S.W.2d 4 , 5 (Tenn. 1982). Stated another way, we have held retroactive application necessary when the old rule substantially impairs the truth-finding function of the trial and thereby raises serious questiоns about the accuracy of guilty verdicts in past trials. Id . at 7. After carefully considering the issue and the shifting sand of federal retroactivity analysis, we conclude that the prior decisions of this Court set forth the appropriate standard for determining the retroactive effect of new state constitutional pronouncements. Accordingly, we decline to apply the federal standard of retroactivity announced in Teague v. Lane . . . and hold that a new state constitutional rule is to be retroactively applied to a claim for post-conviction relief if the new rule materially *13 enhances the integrity and reliability of the fact finding process of the trial.
Meadows v. State
,
However, Meadows was not the end of the story. Two years after this Court decided Meadows v. State , the General Assembly enacted a new version of the Post-Conviction Procedure Act. The new Act was designed to hasten the final resolution of criminal appeals. [7]
Accordingly, the Act included a strict one-year statute of limitations for filing a petition for post-conviction relief. See Tenn. Code Ann. § 40-30-102(a); Whitehead v. State , 402 S.W.3d at 622.
To offset the harshness оf the one-year deadline, the Act also contained three exceptions to toll the statute of limitations or to permit a prisoner to re-open a previously filed petition. Tenn. Code Ann. § 40-30-102(b) (grounds for tolling the limitations period); Tenn. Code Ann. § 40-30-117(a) (grounds for a motion to reopen). In this case, Mr. Bush invokes Tenn. Code Ann. § 40-30-102(b)(1), which provides an exception to the one-year filing deadline when
[t]he 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 trial, if retrospective application of that right is required. The petition must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial.
Under this provision, if ,
Tenn. Code Ann. § 40-30-102(b), however, does not stand alone. A related provision, Tenn. Code Ann. § 40-30-122, states:
For purposes of this part, a new rule of constitutiоnal criminal law is announced if the result is not dictated by precedent *14 existing at the time the petitioner’s conviction became final and application of the rule was susceptible to debate among reasonable minds. A new rule of constitutional criminal law shall not be applied retroactively in a post-conviction proceeding unless the new rule places primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or requires the observance of fairness safeguards that are implicit in the concept of ordered liberty.
This Court has not squarely addressed whether Tenn. Code Ann. § 40-30-122 abrogated our decision in Meadows v. State to continue applying the “materially enhances the integrity and reliability” standard to determine the retroactivity of new constitutional rules in Tennessee. But this Court came close to doing so in 2001.
In
Van Tran v. State
, this Court announced a new rule that executing an intellectually
disabled prisoner violates the Cruel and Unusual Punishments Clause of Tenn. Const. art I,
§ 16. This Court then considered whether that rule should apply retroactively.
Van Tran v.
State
,
The United States Supreme Court has said that a new rule of federal constitutional law is to be applied in cases on collateral review only if it (1) places certain kinds of primary, private individual conduct beyond the power of the state to proscribe or (2) requires the observance of procedures implicit in the concept of ordered liberty. Teague v. Lane ,489 U.S. at 307 , 109 S. Ct.
at 1073. We have adopted a somewhat different standard in Tennessee: “a new state constitutional rule is to be retroactively applied to a claim for post-conviction relief if the new rule materially enhances the integrity and reliability of the fact finding process of the trial.” Meadows v. State ,849 S.W.2d at 755 ; see also Tenn. Code Ann. § 40-30-[122] (citing the Teague standard for retroactivity).
Van Tran v. State
,
We note at this juncture that the outcome of
Van Tran
would have been the same even
if this Court had applied the
Teague
standard. After the United States Supreme Court
determined that executing intellectually disabled prisoners violates the federal constitution
in
Atkins v. Virginia
, 536 U.S. 304 (2002), federal courts applying the
Teague
standard
determined that this ruling applied retroactively to state habeas corpus petitioners.
See, e.g.
,
Hill v. Anderson
,
Van Tran
thus left the question unresolved whether Tennessee post-conviction courts
should apply the retroactivity standard in
Meadows v. State
or Tenn. Code Ann. § 40-30-122.
Faced with this conundrum in this case, the Court of Criminal Appeals decided to analyze
under both retroactivity standards.
Bush v. State
,
The choice between the retroactivity standard in
Meadows v. State
and Tenn. Code
Ann. § 40-30-122 requires us to strike an appropriate balance between two important
principles. The first principle is that the availability and scope of post-conviction relief lies
within the discretion of the General Assembly because post-conviction relief is entirely a
creature of statute.
Pike v. State
,
Because Tenn. Code Ann. § 40-30-122 provides retroactivity principles applicable to
post-conviction petitions, the choice between
Meadows v. State
and Tenn. Code Ann. § 40-
30-122 implicates the separation of powers in Article 1, Sectiоns 1 and 2 of the Constitution
of Tennessee. Only this Court has the authority to oversee the practice and procedure in
Tennessee’s courts.
Mansell v. Bridgestone Firestone N. Am. Tire, LLC
, ___ S.W.3d ___,
We recognize our obligation to protect the independence of Tennessee’s courts.
State
v. Mallard
,
V.
Having decided that Tenn. Code Ann. § 40-30-122 governs the retroactive effect of Tennessee appellate decisions to post-conviction petitioners, we now turn to the case at hand. First, we will assess the retroactivity of our decision in Ward v. State . Second, we will determine whether Mr. Bush is entitled to due process tolling of his post-conviction deadline.
Whether
Ward v. State
requires retroactive application is a question of law that
warrants no deference to the decisions of the courts below.
State v. White
,
Under Tenn. Code Ann. § 40-30-102(b)(1), we must answer two questions to determine whether our holding in Ward v. State triggered a new one-year statute of limitations for Mr. Bush. The first question is the “new rule” question; the second is the “retrospective application” question.
A.
Tenn. Code Ann. § 40-30-102(b)(1) permits a prisoner to file a petition beyond the one-year deadline if, first, “[t]he 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 trial.” Tenn. Code Ann. § 40-30-122 states: “For purposes of this part, a new rule of constitutional criminal law is announced if the result is not dictated by precedent existing at the time the petitioner’s conviction became final and application of the rule was susceptible to debate among reasonable minds.”
We find that
Ward v. State
announced a new rule of constitutional criminal procedure.
The parties and the Court of Criminal Appeals agree on this point. As the Court of Criminal
Appeals pointed out, the
Ward v. State
case resulted in a split decision by the Court of
Criminal Appeals, and this Court ultimately reversed the majority decision. Thus,
Ward v.
State
’s decisional history demonstrates that the ruling was subject to debate
and was certainly not dictated by precedent.
Bush v. State
,
B.
The second requirement for triggering the Post-Conviction Procedure Act’s tolling provision is that “retrospective application” of the new rule is “required.” Tenn. Code Ann. § 40-30-102(b)(1). Tenn. Code Ann. § 40-30-122 states that a new rule of constitutional criminal law can be applied retroactively only if “the new rule placеs primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” or if the new rule “requires the observance of fairness safeguards that are implicit in the concept of ordered liberty.”
The rule of
Ward v. State
was not a rule that “places primary, private individual
conduct beyond the power of the criminal law-making authority to proscribe.” Tenn. Code
Ann. § 40-30-122. Examples of this type of rule include
Lawrence v. Texas
,
Thus, this case hinges on whether Ward v. State announced a rule that “requires the observance of fairness safeguards that are implicit in the concept of ordered liberty.” This is a question of statutory interpretation. As we have said many times:
Our role in construing a statute is to ascertain and give effect to
the legislature’s intent without unduly restricting or expanding
a statute’s coverage beyond its intended scope. We begin by
focusing on the stаtute’s words, presuming that each word has
its own meaning and purpose. If the language is clear and
unambiguous, we need look no further. When faced with
ambiguous language, however, we may refer to the broader
statutory scheme, the legislative history, and other sources,
including the established canons of statutory construction
State v. Hawkins
,
The words “fairness safeguards” are clear enough. “Safeguards” in this context refers
to criminal procedural rules designed to guard against defendants being denied their due
process right to a fundamentally fair adjudication of guilt. Due process itself “embodies the
concepts of fundamental fairness,” justice, and “the community’s sense of fair play and
decency.”
Whitehead v. State
,
More difficult to parse is the phrase “implicit in the concept of ordered liberty.” This limiting phrase implies that not all constitutionally-derived “fairness safeguards” warrant retroactive application in post-conviction cases. As for the word “implicit,” relevant definitions include “[i]mplied though not plainly expressed; naturally or necessarily involved in, or capable of being inferred from, something else.” [9]
“Ordered liberty” is something of a legal term of art with a long history.
See generally
David Crump,
How Do the Courts Really Discover Unenumerated Fundamental Rights?
Cataloguing the Methods of Judicial Alchemy
, 19 Harv. J.L. & Pub. Pol’y 795, 871-74
(1996) (describing the history of the phrase). The phrase currently appears in 122 opinions
by the United States Supreme Court. Its first legal use appears in Justice Cardozo’s opinion
in
Palko v. Connecticut
,
The “ordered liberty” idiom first appeared in the context of the United States Supreme
Court’s efforts to determine which of the rights explicitly protected in the Bill of Rights were
“incorporated” or “absorbed” into the Due Process Clause of the Fourteenth Amendment and
were thereby binding on the states. The Supreme Court, adopting a selective approach to
incorporation, decided that while all constitutional rights are important, only those rights that
are “the very essence of a scheme of ordered liberty” should be binding on the states through
the Fourteenth Amendment.
Palko v. Connecticut
,
*19
The “ordered liberty” language next appeared in the context of the United States
Supreme Court’s adoption of newly recognized, non-textual substantive rights derived from
the Due Process Clauses of the Fifth and Fourteenth Amendments. The Court described
these rights as being “implicit in the concept of ordered liberty” and explained that they were
“deeply rooted in this Nation’s history and tradition” in the sense that they involve “the basic
values that underlie our society.”
Moore v. City of E. Cleveland, Ohio
,
Finally, the United States Supreme Court gradually impоrted the “ordered liberty”
concept into its decisions involving the retroactivity of new constitutional rules in federal
habeas corpus cases. The retroactivity standard the Court adopted in
Teague v. Lane
, 489
U.S. 288, 307, 310 (1989), was taken from Justice Harlan’s separate opinion in
Mackey v.
United States
,
As this Court has previously recognized, the retroactivity standard of Tenn. Code Ann.
§ 40-30-122 is similar to the federal standard of
Teague v. Lane. See Van Tran v. State
, 66
*20
S.W.3d at 811 (stating that Tenn. Code Ann. § 40-30-122 is “citing the
Teague
standard for
retroactivity”);
State v. Gomez
,
We have also determined that, by adopting Tenn. Code Ann. § 40-30-122, the General
Assembly intended to change Tennessee’s standard for determining the retroactivity of new
constitutional rules in post-conviction proceedings. We generally presume that when the
General Assembly passes laws on a particular topic, it knows the current law on that subject
and legislates accordingly.
Lee Med., Inc. v. Beecher
,
The legislative history of the Post-Conviction Procedure Act confirms that the General Assembly intended to abrogate Meadows v. State . Speaking to the House Judiciary Committee on March 29, 1995, Representative Jere Hargrove, the Act’s sponsor, explained:
Finally, we have added language in section 122 which I will guarantee is hard to understand – it is for me – but it is placed there because it is language that has been spoken, interpreted by the United States Supreme Court in Teague v. Lane , and it has to bе there, in our opinion, to make this, to deal with the retroactivity provisions. [11]
Later, on April 19, 1995, during the floor debate in the House of Representatives, Representative Hargrove explained that the new version of the Post-Conviction Procedure Act contained a “retroactivity standard – a [] stricter federal standard than a state standard.” [12] Thus, it appears the General Assembly was aware that the state and federal retroactivity *21 standards differed and that the it chose to codify a “stricter” standard that was derived from Teague v. Lane .
To summarize, we have determined that, by adopting Tenn. Code Ann. § 40-30-122,
the General Assembly intended to replace the retroactivity standard this Court adopted in
Meadows v. State
with the functional equivalent of the federal standard from
Teague v. Lane
,
a standard the General Assembly recognized was “stricter” than Tennessee’s prior standard.
Additionally, we find that the General Assembly intended that the phrase “fairness
safeguards that are implicit in the concept of ordered liberty” should be interpreted along the
same lines as the
Teague v. Lane
standard. In this light, the “fairness safeguards” of Tenn.
Code Ann. § 40-30-122 are equivalent to the
Teague v. Lane
standard’s “watershed rules of
criminal procedure” or “those new procedures without which the likelihood of an accurate
conviction is seriously diminished.”
Teague v. Lane
,
C.
Although the rule we announced in Ward v. State is an important new constitutional rule, we can not say that it amounts to a “fairness safeguard . . . implicit in the concept of ordered liberty” which, under Tenn. Code Ann. § 40-30-122, must be applied retroactively to judgments that became final before its recognition.
This finding in no way detract’s from the
Ward v. State
ruling’s critical importance.
We live in an era when the vast majority of criminal prosecutions are resolved by plea
agreements. As the United States Supreme court recently observed, ninety-seven percent of
federal convictions and ninety-four percent of state convictions are the result of guilty pleas.
Plea bargains have supplanted trials as “the critical point” of a defendant’s interaction with
the criminal justice system.
Missouri v. Frye
,
Yet, we decline to find that the rule requires retroactive application under the standard established in Tenn. Code Ann. § 40-30-122. First, the Ward v. State rule would not appear to affect the accuracy of Mr. Bush’s conviction. We highly doubt that the failure of a trial court to alert a defendant to the sentence of lifetime community supervision would cause an innocent person to plead guilty. The crimes that warrant lifetime community supervision are all class A and class B felonies – not the type of conviction to which a defendant would be likely to confess falsely. See Tenn. Code Ann. § 39-13-524(a).
Second, the rule of
Ward v. State
is also not a “watershed rule of criminal procedure.”
In this regard, the rule was simply an extension of the long-recognized constitutional doctrine
that courts may not accept a guilty plea “without an affirmative showing that it was
intelligent and voluntary.”
Boykin v. Alabama
,
This Court’s constitutional function is to effectuate the intent of the General Assembly
even when the result may appear unfair.
Pickard v. Tennessee Water Quality Control Bd
.,
___ S.W.3d ___, ___, 2013 WL 6623553, at *10 (Tenn. 2013). Legislative policy is
“committed to the intelligence and discretion of the [General Assembly] and the courts will
not run a race of opinions with these representatives of the people upon the question of the
wisdom and propriety of such legislation.”
Rush v. Great Am. Ins. Co
., 213 Tenn. 506,
518–19,
Because the rule we announced in Ward v. State was neither a watershed rule of criminal procedure nor a rule that substantially enhances the accuracy of convictions, we decline to find that the rule is “implicit in the concept of ordered liberty” under Tenn. Code Ann. § 40-30-122. Therefore, the rule of is not a new constitutional right for which “retroactive application . . . is required” under Tenn. Code Ann. § 40-30-102(b)(1). Because the rule did not toll the Post-Conviction Procedure Act’s one-year filing deadline, the Court of Criminal Appeals correctly held that Mr. Bush’s petition was untimely and should have been dismissed.
VI.
One final question remains unresolved. Mr. Bush also argues that due process
considerations require tolling the post-conviction deadline. The trial court agreed, and found
the post-conviction statute of limitations should be tolled on due process grounds. Based on
this record, we agree with the holding of the Court of Criminal Appeals that this case does
not warrant due process tolling.
See Bush v. State
,
The notion of “due process” is anchored in the Due Process Clauses of the Fifth and
Fourteenth Amendments to the United States Constitution and the “Law of the Land” clause
in Article I, Section 8 of the Constitution of Tennessee.
[13]
Due process “embodies the
concepts of fundamental fairness,” justice, and “the community’s sense of fair play and
decency”
Whitehead v. State
,
We recently clarified Tennessee’s due process tolling standard in
Whitehead v. State
.
We held that a post-conviction petitioner is entitled to due process tolling of the one-year
statute of limitations upon a showing (1) that he or she has been pursuing his or her rights
diligently, and (2) that some extraordinary circumstance stood in his or her way and
prevented timely filing.
Whitehead v. State
,
*24
We also noted in
Whitehead
that the standard for pursuing one’s rights diligently
“does not require a prisoner to undertake repeated exercises in futility or to exhaust every
imaginable option, but rather to make reasonable efforts [to pursue his or her claim].”
Whitehead v. State
,
The threshold for triggering this form of relief is “very high, lest the exceptions
swallow the rule.”
Whitehead v. State
, 402 S.W.3d at 632 (quoting
United States v.
Marcello,
This case could be construed as one in which the grounds for overturning the conviction arose after the one-year deadline had already passed. On one hand, the violation of Mr. Bush’s due process rights actually occurred before the trial court entered its judgment of conviction. On the other hand, Mr. Bush did not discover that he had been sentenced to lifetime community supervision until after he was released from jail. This discovery may or may not have occurred within a year of his conviction becoming final. Mr. Bush was sentenced to serve one year in the Sumner County jail, and the record does not make clear when that term began or ended. However, we do know two things: (1) Mr. Bush essentially admitted that he knew about lifetime community supervision by December 2004 at the latest; and (2) Mr. Bush did not apply for post-conviction relief until April 2011.
Under these facts, we cannot find that Mr. Bush was diligently pursuing his rights under the first prong of the Whitehead - Holland test. Even if Mr. Bush’s claim could fairly be characterized as a later-arising claim, nothing prevented him from filing his petition in the intervening years between his discovery of the undisclosed sentence and the filing of his post-conviction petition. In light of the General Assembly’s clear preference that the post- conviction statute of limitations be strictly construed, we do not find this to be one of those rare unconscionable cases that cries out for due process tolling.
VII.
In conclusion, we hold that our decision in does not require retroactive application under Tenn. Code Ann. § 40-30-122. Therefore, our Ward decision does not toll the post-conviction statute of limitations under Tenn. Code Ann. § 40-30-102(b)(1). Additionally, Mr. Bush does not qualify for due process tolling of the post-conviction statute of limitations. We affirm the judgment of the Court of Criminal Appeals and assess the costs of this appeal to the State of Tennessee.
______________________________ WILLIAM C. KOCH, JR., JUSTICE
Notes
[1] Tenn. Code. Ann. §§ 40-30-101 to -122 (2012 & Supp. 2013).
[2] We note the possibility that “community supervision for life” could рotentially end after fifteen years. According to Tenn. Code Ann. § 39-13-525 (2010), “[a]fter a person sentenced to community supervision pursuant to [Tenn. Code Ann.] § 39-13-524 has been on supervision for a period of fifteen (15) years, the person may petition the sentencing court for release from community supervision.”
[3] See generally Mary C. Hutton, Retroactivity in the States: The Impact of Teague v. Lane on State Postconviction Remedies , 44 Ala. L. Rev. 421 (1993).
[4] Max Rosenn, The Great Writ-A Reflection of Societal Change , 44 Ohio St. L.J., 337, 364 (1983).
[5] The
Linkletter
Court framed its retroactivity test as follows:
Once the premise is accepted that we are neither required to apply, nor prohibited from
applying, a decision retrospectively, we must then weigh the merits and demerits in each
case by looking to the prior history of the rule in question, its purpose and effect, and
whether retrospective operation will further or retard its operation.
Linkletter v. Walker
,
[6] As we have already noted, this interpretation of the federal precedents eventually proved to be incorrect. Danforth v. Minnesota ,552 U.S. at 288 . Thus, in contrast to what this Court assumed in Meadows v. State , the states are not “bound by federal retroactivity analysis when a new federal rule is involved.”
[7] See Act of Apr. 26, 1995, ch. 207, 1995 Tenn. Pub. Acts 305.
[8]
Mansell v. Bridgestone Firestone N. Am. Tire, LLC
,
[9] 7 Oxford English Dictionary 724 (2d ed. 1989).
[10] Justice Harlan said he thought
the writ ought always to lie for claims of nonobservance of those procedures that, as so aptly
described by Mr. Justice Cаrdozo in
Palko v. Connecticut
. . ., are ‘implicit in the concept
of ordered liberty.’ Typically, it should be the case that any conviction free from federal
constitutional error at the time it became final, will be found, upon reflection, to have been
fundamentally fair and conducted under those procedures essential to the substance of a full
hearing. However, in some situations in might be that time and growth in social capacity,
as well as judicial perceptions of what we can rightly demand of the adjudicatory process,
will properly alter our understanding of the bedrock procedural elements that must be found
to vitiate the fairness of a particular conviction.
Mackey v. United States
,
[11] Hearing on H.B. 1 Before the House Judiciary Comm., 99th Gen. Assembly. (Mar. 29, 1995) (statement of Rep. Jere Hargrove).
[12] Debate on H.B. 1 Before the House, 99th Gen. Assembly (Apr. 19, 1995) (statement of Rep. Jere Hargrove).
[13] As this Court has explained:
The Fifth Amendment to the United States Constitution, which is applicablе to the
states through the Fourteenth Amendment, provides, in part, that “[n]o person shall . . . be
deprived of life, liberty, or property, without due process of law.” In addition, the
Fourteenth Amendment to the U.S. Constitution provides, in part, that “[n]o state shall . .
. deprive any person of life, liberty, or property, without due process of law.” The
corresponding provision of the Tennessee Constitution provides “[t]hat no man shall be
taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or
exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the
judgment of his peers or the law of the land.” Tenn. Const. art. I, § 8.1.
Although the language of these provisions is different, the “law of the land”
provision of Article I, § 8 of the Tennessee Constitution has been construed as synonymous
with the “due process of law” provisions of the Fifth and Fourteenth Amendments to the
U.S. Constitution. However, U.S. Supreme Court interpretations of the due process clauses
of the U.S. Constitution only establish a minimum level of protection, and this Court, as the
final arbiter of the Tennessee Constitution, is always free to expand the minimum level of
protection mandated by the federal constitution.
Burford v. State
,