State of Tennessee v. Roscoe Dixon ( 2018 )

03/06/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 20, 2018 Session1
STATE OF TENNESSEE v. ROSCOE DIXON
Appeal from the Circuit Court for Shelby County
No. CT-000947-16 Rhynette N. Hurd, Judge
___________________________________
No. W2017-01051-COA-R3-CV
___________________________________
Former state senator convicted of bribery appeals the trial court’s denial of the restoration
of his voting rights based on Tennessee Code Annotated section 40-29-204. Discerning
no reversible error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which ARNOLD B.
GOLDIN, and BRANDON O. GIBSON, JJ., joined.
Kyle Mothershead, David W. Garrison, and Scott P. Tift, Nashville, Tennessee, for the
appellant, Roscoe Dixon.
Herbert H. Slatery, III, Attorney General and Reporter; Andreé S. Blumstein, Solicitor
General; Sarah K. Campbell, Special Assistant to the Solicitor General and the Attorney
General, for the appellee, State of Tennessee - Civil.
OPINION
Background
In 2005, Petitioner/Appellant Roscoe Dixon (“Petitioner”) was investigated and
prosecuted in federal court as part of the Tennessee Waltz corruption sting.2 On June 8,
1
Oral argument in this case was conducted at Union University.
2
Tennessee Waltz was “a multiyear investigation initiated in response to allegations of corruption
by Tennessee elected officials.” United States v. Crutchfield, 379 F. Supp. 2d 913, 915 (W.D. Tenn.
2005).
2006, the jury returned a verdict finding Petitioner guilty of several crimes: (1) four
counts of interference with commerce by threat; and (2) one count of bribery involving
federal programs. An order on judgment and sentence was entered on October 13, 2006;
Petitioner was sentenced to a total of sixty-three months’ incarceration and three years of
supervised release.
On March 7, 2016, following the completion of his incarceration and probation,
Petitioner filed a petition to restore his citizenship and voting rights under Tennessee
Code Annotated section 40-29-202. Although the State of Tennessee (“the State”)
opposed the petition, the trial court entered an order on November 21, 2016, granting
Petitioner restoration of his citizenship rights, other than his right to hold public office or
possess firearms.
On December 7, 2016, the State filed a motion to alter or amend the trial court
judgment, arguing that Petitioner’s voting rights could not be restored due to the
operation of Tennessee Code Annotated section 40-29-204(3), which provides that for
certain types of crimes, voting rights may not be restored. Petitioner thereafter responded
in opposition. Petitioner did not deny that he had been convicted of a crime specified by
section 40-29-204(3). Petitioner argued, however, that the statute could not apply because
his conviction occurred prior to July 1, 2006, the effective date of the statute and the date
the statute specified for its terms to apply. Instead, Petitioner asserted that his conviction
occurred on June 8, 2006, the day the jury verdict was returned. The State argued,
however, that Petitioner’s conviction occurred on the date the judgment was entered, well
after the effective date of the statute. The trial court ruled that section 40-29-204(3) was
applicable to Petitioner’s conviction and that he was therefore forever ineligible to vote.
The trial court therefore entered an amended order granting Petitioner’s petition for
restoration of civil rights, excluding the right to vote, the right to possess firearms, and
the right to hold public office. From this order, Petitioner now appeals.
Issues Presented
Petitioner raises three issues in this appeal, which are taken from his brief and
slightly restated:
1. Whether Petitioner was convicted of his offense before or after the
effective date of section 40-29-204(3).
2. Whether the ex post facto clause of the Tennessee Constitution prohibits
application of section 40-29-204(3) to Petitioner, where Petitioner’s
offense was committed prior to the enactment of section 40-29-204(3).
3. Whether Petitioner’s right to vote is permanently forfeited under section
40-29-204(3)?
2
Analysis
I.
This appeal involves the interpretation of various statutes. As such, our review is
de novo with no presumption of correctness. McFarland v. Pemberton, 530 S.W.3d 76,
91 (Tenn. 2017) (quoting Martin v. Powers, 505 S.W.3d 512, 518 (Tenn. 2016)). As
explained by our supreme court:
When determining the meaning of statutes, our primary goal “is to carry out
legislative intent without broadening or restricting the statute beyond its
intended scope.” Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013)
(quoting Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011)).
We presume that every word in a statute [or rule] has meaning and purpose
and that each word’s meaning should be given full effect as long as doing
so does not frustrate the [drafter’s] obvious intention. Id. Words “‘must be
given their natural and ordinary meaning in the context in which they
appear and in light of the statute’s general purpose.’” Id. (quoting Mills v.
Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012)). When a statute’s
meaning is clear, we “‘apply the plain meaning without complicating the
task’ and enforce the statute as written.” Id. (quoting Lind, 356 S.W.3d at
895).
Ellithorpe v. Weismark, 479 S.W.3d 818, 827 (Tenn. 2015).
A brief review of the statutes surrounding the deprivation and restoration of voting
rights is helpful to our analysis. As an initial matter, the Tennessee Constitution provides
that “[l]aws may be passed excluding from the right of suffrage persons who may be
convicted of infamous crimes.” Tenn. Const., art. IV, § 21. To that end, the Tennessee
General Assembly enacted Tennessee Code Annotated section 40-20-112, which states:
“Upon conviction for any felony, it shall be the judgment of the court that the defendant
be infamous and be immediately disqualified from exercising the right of suffrage.” See
also Tenn. Code Ann. § 2-19-143 (providing that those convicted of infamous crimes in
this state or under federal law shall not be permitted to vote unless such person has been
pardoned by the appropriate authority or “the person’s full rights of citizenship have
otherwise been restored”), recognized as unconstitutional when applied retroactively by
May v. Carlton, 245 S.W.3d 340, 345 (Tenn. 2008) (citing Gaskin v. Collins, 661
S.W.2d 865, 867 (Tenn. 1983) (holding that statute expanding the definition of infamous
crimes for which felons are disenfranchised and applying that definition to disenfranchise
felons regardless of when they were convicted violated constitutional provision
3
prohibiting retroactive disenfranchisement under Tennessee constitutional provisions
related to suffrage)). 3 The Tennessee Constitution further provides, however, that “the
right of suffrage, as hereinafter declared, shall never be denied to any person entitled
thereto, except upon conviction by a jury of some infamous crime, previously ascertained
and declared by law, and judgment thereon by court of competent jurisdiction.” Tenn.
Const., art. I, § 5. As such, those rendered infamous by the conviction of a crime are not
permitted to vote following a judgment to that effect unless and until a pardon occurs or
voting rights are restored.
Petitioner does not dispute that upon his conviction in federal court, he was
rendered infamous and thereby disqualified from voting. Petitioner asserts, however, that
under Tennessee law applicable at the time, he was entitled to restoration of his voting
rights. Under Tennessee Code Annotated section 40-29-101(a), “[p]ersons rendered
infamous or deprived of the rights of citizenship by the judgment of any state or federal
court may have their full rights of citizenship restored by the circuit court.” As such,
“[t]hose convicted of an infamous crime may petition for restoration upon the expiration
of the maximum sentence imposed for the infamous crime.” Id. § 40-29-101(c). With
regard to restoration of civil rights, however, the Tennessee Supreme Court has
previously noted that “a person who is adjudged infamous or deprived of rights of
citizenship does not have an absolute right to the restoration of the full rights of
citizenship even upon satisfying the requirements [of Tennessee’s restoration statutes].”
State v. Johnson, 79 S.W.3d 522, 527 (Tenn. 2002). Thus, “the restoration of citizenship
process is subject to the requirements and restrictions imposed by the legislature.” Id.
Pursuant to this authority, in 2006, the Tennessee General Assembly enacted
Tennessee Code Annotated section 40-29-204, which became effective on July 1, 2006.4
This statute provides that certain crimes are permanently ineligible for restoration of
voting rights, including crimes involving bribery and official misconduct. As is relevant
to this appeal, section 40-29-204 stated:
Notwithstanding the provisions of this part, the following persons shall
3
Section 2-19-143 was enacted in 1981, far before the commission of the crime, the jury verdict,
or the judgment at issue in this case. As such, Petitioner does not appear to dispute its applicability.
Likewise, Petitioner did not argue in the trial court nor does he argue on appeal that the application of
Tennessee Code Annotated section 40-29-204(3) to him would violate Article I, section 5 of the
Tennessee Constitution, the provision held to have been violated in Gaskin. See Gaskin, 661 S.W.2d at
866 (citing Tenn. Const. art. I, § 5). As such, any argument to that effect is waived. See In re Adoption of
E.N.R., 42 S.W.3d 26, 33 (Tenn. 2001) (holding a constitutional challenge waived where it was not raised
in the trial court).
4
The statute was approved by the Tennessee General Assembly on May 17, 2006 and signed by
the Governor on June 5, 2006.
4
never be eligible to register and vote in this state:
* * *
(3) Those convicted on or after July 1, 2006, of:
* * *
(B) Any other violation of Title 39, Chapter 16, Parts 1, 4 or 5
designated as a felony; . . .
Tenn. Code Ann. § 40-29-204 (effective July 1, 2006); see also Tenn. Code Ann. § 39-
16-104 (“A public servant commits an offense who requests a pecuniary benefit for the
performance of an official action knowing that the public servant was required to perform
that action without compensation or at a level of compensation lower than that
requested.”); Tenn. Code Ann. § 39-16-402 (providing the offense of official
misconduct). The statute was later amended to provide that the subsection (3) would
apply to “any violation containing the same elements and designated as a felony in any
other state or federal court[.]” Tenn. Code Ann. § 40-29-204, enacted by 2011 Tennessee
Laws Pub. Ch. 184 (H.B. 1117), eff. July 1, 2011 (adding the above language). 5
Petitioner does not dispute that this law encompasses the crimes he was convicted of in
federal court.6
5
Petitioner did not argue in the trial court nor does he argue on appeal that this statute is
inapplicable because the language regarding federal crimes was added well after the commission of the
crimes at issue and the judgment thereon. Indeed, Petitioner specifically conceded in the trial court that
“[t]here is no question that [section] 40-29-204(3) prohibits persons “convicted” of offenses like
[Petitioner’s] after July 1, 2006, from ever having their voting rights restored.” Any argument to the
contrary is therefore waived.
6
As such, we apply the current version of the statute in this case. The current version of the
statute reads in pertinent part as follows:
Notwithstanding this part, the following persons shall never be eligible to register and
vote in this state:
* * *
(3) Those convicted on or after July 1, 2006, of:
* * *
(B) Any other violation of title 39, chapter 16, parts 1, 4 or 5 designated as a felony
or any violation containing the same elements and designated as a felony in any other
state or federal court; . . . .
5
Instead, Petitioner argues that section 40-29-204(3) does not apply to him because
he was not “convicted on or after July 1, 2006[.]” Rather, Petitioner asserts that he was
“convicted” on June 8, 2006, the date the jury returned its verdict. In response, the State
asserts that Petitioner was “convicted” on October 13, 2006, the date a judgment of
conviction was entered. The parties’ varying arguments rest on the proper definition of
the term “convicted” in section 40-29-204(3). Because the term is not defined by the
statute, we look to other sources to determine its definition in light of the statute’s
purpose. See Womack v. Corr. Corp. of Am., 448 S.W.3d 362, 366 (Tenn. 2014) (quoting
Mills, 360 S.W.3d at 368) (“The words ‘must be given their natural and ordinary
meaning in the context in which they appear and in light of the statute’s general
purpose.’”).
Both parties’ interpretations of section 40-29-204(3) find support in Tennessee
caselaw. Indeed, Tennessee courts have previously held that the term “conviction” has
two different definitions depending on the context. See State v. Vasser, 870 S.W.2d 543,
546 (Tenn. Crim. App. 1993). First, with regard to the “technical definition,” the
Tennessee Court of Criminal Appeals has explained
In a general sense, a “conviction” has been defined as “the result of a
criminal trial which ends in a judgment or sentence that the accused is
guilty as charged.” Black’s Law Dictionary 333 (6th ed. 1990). In one
sense, it is viewed as necessarily including the judgment on the finding of
guilt or verdict. In McClain v. State, 186 Tenn. 401, 210 S.W.2d 680, 681
(1948), the Court stated that absent “a minute entry showing that the Trial
Judge approved the verdict . . . and sentenced the Defendant, the conviction
of guilt is incomplete.” Accord Ray v. State, 576 S.W.2d 598, 602 (Tenn.
Crim. App. 1978); Spencer v. State, 125 Tenn. 64, 69–70, 140 S.W. 597,
598–599 (1911) (technically, “a conviction involves, not only a verdict, but
also a sentence passed by the court”). In fact, this has been called the
“technical” meaning of “conviction.” Vasquez v. Courtney, 272 Or. 477,
537 P.2d 536, 537 (1975).
Actually, the technical meaning is used in terms of requiring a
“judgment of conviction.” See Tenn. R. Crim. P. 32(e) (“judgment of
conviction shall set forth the plea, the verdict or findings, and the
adjudication and sentence”). In this sense, the judgment provides the legal
authority for the executive branch of government to incarcerate a person
who is sentenced to confinement. See T[enn. Code Ann.] §§ 40-20-101, 40-
23-101.
Vasser, 870 S.W.2d at 545–46. The technical definition “is normally used, absent
statutory definition to the contrary, when referring to the indirect or subsequent
consequences which might result, such as, future civil disabilities.” Id. at 546 (citing
6
Vasquez, 537 P. at 537–38).
The term “conviction,” however, does not always implicate the necessity of a
judgment. See Vasser, 870 S.W.2d at 546. As such, the Tennessee Supreme Court has
held that a conviction “does not ordinarily include nor imply judgment or sentence, but
has a meaning entirely separate and apart from judgment or sentence.” State v. Garrett,
135 Tenn. 617, 188 S.W. 58, 60 (Tenn. 1916). Rather, the term “is used to signify the
jury’s verdict of guilty, and as something precedent to, and distinct from, judgment or
sentence.” Id. Thus,
[T]he legislature often uses the word “conviction” to denote a stage of the
process occurring in the trial court after which such further action by the
trial court must be taken or may be authorized. In this context, “when the
word ‘conviction’ is used in connection with the successive steps in a
criminal case, the reference is to the verdict.”
Vasser, 870 S.W.2d at 546 (quoting 21A Am.Jur.2d Criminal Law § 1024 at 569). Thus,
“[a] conviction in the ‘general sense’ is the establishment of guilt by a guilty plea or a
verdict independent of sentence and judgment.” Rodriguez v. State, 437 S.W.3d 450, 453
(Tenn. 2014) (citing Vasser, 870 S.W.2d at 546.). This is often the case where a statute or
provision makes a distinction between the conviction and the judgment. See, e.g., Tenn.
Const. art. I, § 5 (proving that the right to vote shall not be removed “except upon
conviction . . . and judgment”); Tenn. Code Ann. § 40-20-111 (discussing both judgment
and conviction); Tenn. Code Ann. § 40-20-112 (same). In determining the particular
definition applicable, we also must read a statute in pari materia with other statutes
relating to the same subject or having the same purpose. Rodriguez, 437 S.W.3d at 453
(citing Mandela v. Campbell, 978 S.W.2d 531, 534 (Tenn. 1998) (holding that statutes
relating to the same subject or having a common purpose must be read in pari materia)).
Turning to the particular statute at issue in this case, we note that unlike other
statutes in which the terms “conviction” or “convicted” have been found to be defined in
the general sense, section 40-29-204(3) does not refer to the successive phases of a
criminal trial, nor does it specifically refer to both a conviction and judgment so as to
draw a distinction between the two. See Vasser, 870 S.W.2d at 546. As such, neither of
these factors favor defining the term “convicted” in section 40-29-204(3) in the general
sense.
Petitioner also asserts that section 40-29-204(3) does not involve a future civil
disability so as to implicate the technical definition of the term “convicted.” Respectfully,
we cannot agree. Disenfranchisement has long been considered a civil disability. See
Fisher v. State, No. W2016-01409-COA-R3-CV, 2017 WL 2839742, at *1 (Tenn. Ct.
App. July 3, 2017), perm. app. denied (Tenn. Nov. 17, 2017) (citing Cole v. Campbell,
7
968 S.W.2d 274, 276 (Tenn. 1998) (discussing civil disabilities “in early English
common law”)). The Tennessee Supreme Court has recognized that Tennessee’s
“[s]pecific disability statutes include the loss of the right to vote, the loss of the right to
hold public office, the loss of the right to serve as a fiduciary, and the loss of the right to
possess a handgun.” State v. Johnson, 79 S.W.3d 522, 527 (Tenn. 2002) (internal
citations omitted) (emphasis added); see also Cole, 968 S.W.2d at 276 (describing the
loss of the right to vote as a civil disability).
Petitioner asserts, however, that section 40-29-204(3) does not involve
disenfranchisement but rather involves the restoration of voting rights, for which the
technical definition is not implicated. While at least one federal court has indicated that
Tennessee’s re-enfranchisement scheme does not implicate an affirmative disability, the
same cannot be said of section 40-29-204(3) specifically. See Johnson v. Bredesen, 624
F.3d 742 (6th Cir. 2010). In Johnson, the United States Court of Appeals for the Sixth
Circuit distinguished Tennessee’s disenfranchisement laws, which it suggested impose an
affirmative disability, with laws regulating the restoration of voting rights, which it
indicated did not impose an affirmative disability. Id. at 753 (stating that “if Plaintiffs
suffer from an affirmative disability, the disenfranchisement statute must take the blame”
rather than the re-enfranchisement scheme). Johnson, however, did not involve section
40-29-204, but rather Tennessee Code Annotated section 40-29-202(b) and (c). Id.
Section 40-29-202 (b) and (c) provide specific conditions that must be met prior to a
restoration of voting rights, such as the payment of court costs and child support.
The same is not true of Tennessee Code Annotated section 40-29-204(3). Indeed,
rather than placing conditions on re-enfranchisement, this statute makes
disenfranchisement for certain crimes permanent. Although section 40-29-204(3) is
included in the statutory scheme involving restoration of citizenship rights, it is therefore
more closely aligned with those statutes that govern disenfranchisement than re-
enfranchisement. Section 40-29-204(3) deprives persons of their statutory ability to
restore voting rights notwithstanding the expiration of any sentence. Thus, section 40-29-
204(3) governs the extent of the deprivation of the right to vote with regard to certain
crimes and contains no specific procedures to restore voting rights under that statute.
Stated another way, section 40-29-204(3) does not govern the reestablishment of voting
rights but makes any deprivation permanent, where the statute is applicable. Clearly, this
statute therefore involves a future civil disability on the right to vote. Because the statute
does not specify otherwise, the technical definition of “convicted” is applicable. See
Vasser, 870 S.W.2d at 546.
Other surrounding provisions support our use of the technical definition in this
case. First, we note that other statutes that govern disenfranchisement specifically state
that disenfranchisement occurs at the time of judgment, rather than verdict. See Tenn.
Code Ann. 40-20-112 (“Upon conviction for any felony, it shall be the judgment of the
8
court that the defendant be infamous and be immediately disqualified from exercising the
right of suffrage.”). Likewise, our re-enfranchisement statute applicable to crimes not
specified under section 40-29-204 requires that the right to vote be removed only at
judgment. See Tenn. Code Ann. 40-29-202(a) (“A person rendered infamous and
deprived of the right of suffrage by the judgment of any state or federal court is eligible
to apply for a voter registration card and have the right of suffrage restored upon: [certain
conditions being met.]”); c.f. Tenn. Code Ann. § 40-29-105 (outlining the various types
of restoration procedure applicable based upon the date of “conviction,” but stating that
the deprivation takes place at the time of judgment rather than verdict). In a similar
situation, the Tennessee Supreme Court has previously held that the express requirement
of a judgment in other statutes in the statutory scheme mandated that the term
“conviction” in the specific statute at issue be defined by its technical definition. See
Rodriguez, 437 S.W.3d at 454 (“Based on these repeated references to the terms
“judgment” or “judgments,” we conclude that the Post-Conviction Act requires the entry
of a judgment.”). Finally, we note that the Tennessee Constitution makes clear that the
right to vote may not be removed until “judgment” is entered on the jury verdict. Tenn.
Const., art. I, § 5. It would be anomalous to hold that we may determine Petitioner’s
ability to reestablish his voting rights by a date prior to the date upon which his voting
rights were actually removed. Although we recognize that this result is harsh as applied
to Petitioner, we must conclude that the technical definition of the term “convicted” is
used in Tennessee Code Annotated section 40-29-204(3). Because Petitioner’s
“conviction” occurred after July 1, 2006, Petitioner is permanently barred from voting
under the terms of that statute.
II.
Petitioner next asserts that to apply section 40-29-204(3) to him violates the
Tennessee Constitution’s prohibition on ex post facto laws. See Tenn. Const. Art. I, § 11
(“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.”); see also U.S. Const. art. I,
§ 10, cl. 1 (“No State shall . . . make any . . . ex post facto Law”); see generally Agee v.
State, 111 S.W.3d 571, 576 (Tenn. Crim. App. 2003) (“Generally, ex post facto laws are
those that make an act criminal that was not criminal at the time it was committed.”).
Specifically, Petitioner asserts that “a law enacted subsequent to commission of an
offense cannot be used as a basis to deprive the offender of his voting rights” and that to
apply section 40-29-204(3), enacted after the commission of the crimes involved,
therefore violates the Ex Post Facto Clause of the Tennessee Constitution.
The State argues, however, that any argument that the application of section 40-
9
29-204(3) to the facts of this case violates the prohibition against ex post facto laws is
waived.7 We agree. Here, Petitioner did not raise the Ex Post Facto Clause in any fashion
in his response to the State’s motion to alter or amend. Rather, Petitioner raised this
argument for the first time on appeal. “It is well-settled in Tennessee that ‘courts do not
decide constitutional questions unless resolution is absolutely necessary to determining
the issues in the case and adjudicating the rights of the parties.’” Waters v. Farr, 291
S.W.3d 873, 882 (Tenn. 2009) (quoting State v. Taylor, 70 S.W.3d 717, 720 (Tenn.
2002)) (noting that an even higher standard is applicable in facial challenges to statutes);
see also City of Elizabethton v. Carter Cty., 204 Tenn. 452, 463, 321 S.W.2d 822, 827
(Tenn. 1958) (“We do not have any sympathy for the practice of raising constitutional
questions for the first time on appeal, unless a statute is so obviously unconstitutional on
its face as to obviate the necessity for any discussion.”). In a similar situation, the
Tennessee Court of Criminal Appeals has held that the argument was waived:
The petitioner argues that the statute, as amended, should not be applicable
to his case because it “constitutes an unconstitutional ex post facto law.” He
argues it is unconstitutional to apply the 2009 amended provisions to his
1999 convictions. However, the constitutionality issue is raised by the
petitioner for the first time on appeal. “A party may not raise an issue for
the first time in the appellate court.” State v. Turner, 919 S.W.2d 346, 356–
57 (Tenn. Crim. App. 1995). As point[ed] out by the State, “this rule
applies to an attempt to make a constitutional attack upon the validity of a
statute for the first time on appeal unless the statute involved is so
obviously unconstitutional on its face as to obviate the necessity for any
discussion.” Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983).
That exclusion is not applicable in this case. Thus, by his failure to
previously raise the issue, the petitioner has waived its review on appeal.
Childress v. State, No. W2012-02104-CCA-R3-HC, 2013 WL 793211, at *3 (Tenn.
Crim. App. Mar. 1, 2013), perm. app. denied (Tenn. Aug. 13, 2013); see also Morris v.
Fortner, No. M2008-01022-CCA-R3-HC, 2009 WL 690304, at *3 (Tenn. Crim. App.
Feb. 26, 2009) (applying waiver to an ex post facto argument where the argument was
not raised in the trial court).
Here, Petitioner does not state that the statute is so obviously unconstitutional as to
obviate the necessity for discussion.8 Indeed, Petitioner appears to concede that his failure
7
The State does not concede that application of section 40-29-204(3) violated the Tennessee
Constitution’s prohibition against ex post facto laws in this case. Given our resolution of the waiver
argument, we need not address this issue.
8
Specifically, Petitioner states in his brief that section 40-29-204(3) “is not in and of itself
unconstitutional” but argues that it is unconstitutional as applied to the facts of this case. Under
10
to raise this argument in the trial court resulted in a waiver on appeal and asks this Court
to nevertheless exercise our discretion to consider this issue under Rule 13 of the
Tennessee Rules of Appellate Procedure. Pursuant to Rule 13(b), this Court has
discretion to consider issues not properly raised “in order, among other reasons: (1) to
prevent needless litigation, (2) to prevent injury to the interests of the public, and (3) to
prevent prejudice to the judicial process.” See also Tenn. R. App. P. 13(b), advisory
comm’n cmt. (“It is intended that this discretion be sparingly exercised.”).
From our review of the parties’ briefs, it appears that the question of whether a
voter disenfranchisement law is governed by the ex post facto prohibition has been the
subject of some debate. Compare May v. Carlton, 245 S.W.3d 340, 345 (Tenn. 2008)
(“Laws disenfranchising convicted felons are penal in nature.”), with Johnson v.
Bredesen, 624 F.3d 742, 754 (6th Cir. 2010) (“The ‘penal in nature’ statement [in May]
is pure dicta, insufficient to compel the conclusion that either laws retroactively
disenfranchising felons or laws regulating re-enfranchisement violate the Ex Post Facto
Clause of the Tennessee Constitution.”) (emphasis in original). Given that this issue is
not well-settled and the State was not given notice of Petitioner’s intention to rely on this
argument until this appeal, we decline to exercise our discretion to consider this issue
where it was not raised or properly developed in the trial court.9
Conclusion
The judgment of the Circuit Court of Shelby County is affirmed and this cause is
remanded for all further proceedings as may be necessary and consistent with this
Opinion. Costs of this appeal are taxed to Appellant, Roscoe Dixon, and his surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
Lawrence, however, the statute must be obviously unconstitutional “on its face” to avoid waiver.
Lawrence, 655 S.W.2d at 929; see also In re Adoption of E.N.R., 42 S.W.3d at 33 (citing this language
from Lawrence with approval).
9
We therefore express no opinion as to any issue related to Petitioner’s ex post facto argument.
11