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)

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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

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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.

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.. ... '•

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) steven@smooreassociates.com

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) fisherwiselaw@gmail.com

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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