State v. Payne

1

STATE OF TENNESSEE v. PERVIS TYRONE PAYNE

No. W2022-00210-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Jackson

August 30, 2023

Session March 7, 2023

Appeal from the Criminal Court for Shelby County Nos. 87-04408 87-04409, 87-04410 Paula L. Skahan, Judge

In this case of first impression, the State appeals the trial court's sentencing hearing order that the Defendant's two life sentences be served concurrently after he was determined to be ineligible for the death penalty due to intellectual disability pursuant to Tennessee Code Annotated section 39-13-203(g) (Supp. 2021) (subsequently amended). The State argues that the consecutive alignment of the Defendant's original sentences remained final and that the trial court lacked jurisdiction to consider manner of service. The Defendant responds that the trial court had jurisdiction to sentence him, including determining the manner of service of his sentences, and did not abuse its discretion in imposing concurrent life sentences. After considering the arguments of the parties, the rules of statutory construction, and other applicable legal authority we conclude that the trial court properly acted within its discretion in conducting a hearing to determine the manner of service of the Defendant's life sentences. Accordingly the judgments of the trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

Jonathan Skrmetti, Attorney General and Reporter; Andree Sophia Blumstein, Solicitor General; Andrew C. Coulam, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Steve Jones, Assistant District Attorney General, for the appellant, State of Tennessee.

Kelley J. Henry, Amy D. Harwell, and Ashley W. Thompson, Federal Public Defenders, Nashville, Tennessee, for the appellee, Pervis Tyrone Payne.

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court in which ROBERT W. WEDEMEYER, J., and CAMILLE R. MCMULLEN, P.J., joined.

OPINION

ROBERT H. MONTGOMERY, JR., JUDGE

Background

In 1988, the Defendant, Pervis Tyrone Payne, was convicted of two counts of first degree murder and one count of assault with intent to commit murder for the stabbing of Charisse Christopher and her two young children. See State v Payne, 791 S.W.2d 10 (Tenn. 1990), aff'd sub nom Payne v. Tennessee, 501 U.S. 808 (1991). The Defendant testified at trial that he discovered the victims after the attack; however, the jury rejected this theory, and the Tennessee Supreme Court stated on appeal that the evidence at trial "virtually foreclose[d] the possibility that an unidentified intruder committed these murders and disappeared out the front door before Defendant entered the apartment." Id. at 15. The jury sentenced the Defendant to death for each of the murder convictions, and the trial court held a separate sentencing hearing for the assault conviction.

During the sentencing hearing, the Defendant's trial counsel stated with regard to the State's motion for consecutive sentences: "We'll leave it up to the Court. I think, in light of the death penalty sentence, the motion for consecutive sentencing is irrelevant." The prosecutor responded:

As far as the motion for consecutive sentencing goes, I sincerely hope that it is totally irrelevant, but, being a realist, I cannot say that it is. The defendant has been sentenced to death by electrocution on two separate charges of murder in the first degree. Should our Courts, our Appellate Courts, at least, lose touch with reality once again and declare the statute unconstitutional or somehow commute these two offenses to life in the Penitentiary, it would be important as to whether or not they are consecutive or concurrent. And that's why we have filed the motion.

The State argued that consecutive sentences were justified under Gray v. State, 538 S.W.2d 391 (Tenn. 1976), because the Defendant was a dangerous offender who had little or no regard for human life. At the conclusion of the hearing, the trial court imposed a sentence of thirty years for the assault conviction "based on particularly the magnitude of this offense and how horrible this was[.]" The trial court ordered the thirty-year sentence to be served consecutively to the death sentences, explaining "that becomes only relevant, I think, because of - I think we have to anticipate what might occur in the future and what may be taking place in felony procedures, whether there could be impossibilities. So I think consecutive sentencings would be appropriate in this situation." The Defendant's trial counsel asked, "Are all three sentences consecutive?" To which the trial court responded, "All to run consecutive, yes." The Defendant did not challenge the consecutive alignment of his sentences in the appeal of his convictions and death sentences.^[1] See generally State v. Payne, 791 S.W.2d 10 (Tenn. 1990).

The Defendant subsequently sought post-conviction relief but did not raise trial counsel's failure to challenge the consecutive alignment of his sentences as a basis for ineffective assistance of counsel. See Pervis Tyrone Payne v. State, No. 02C01-9703-CR-00131, 1998 WL 12670 (Tenn. Crim. App. Jan. 15, 1998), perm. app. denied (Tenn. June 8, 1998). Over the years, the Defendant unsuccessfully sought various forms of collateral relief but never raised the consecutive alignment of his sentences as an issue. See, e.g., Payne v. Bell, 418 F.3d 644, 646 (6th Cir. 2005) (federal habeas corpus petition); Payne v. State, 493 S.W.3d 478, 480 (Tenn. 2016) (petition for writ of error coram nobis), cert. denied 137 S.Ct. 1327 (Mar. 20, 2017); Pervis Tyrone Payne v. State, No. W2018-01048-CCA-R28-PD (Tenn. Crim. App. Jan. 4, 2019) (order) (motion to reopen post-conviction proceedings); Pervis Payne v. State, No. W2016-02326-CCA-R28-PD (Tenn. Crim. App. Aug. 1, 2017) (order) (motion to reopen post-conviction proceedings), perm. app. denied (Tenn. Nov. 21, 2017); Pervis Tyrone Payne v. Wayne Carpenter, et al., No. M2014-00688-COA-R3-CV, 2016 WL 4142485 (Tenn. Ct. App. Aug. 2, 2016) (declaratory judgment action seeking to enjoin his execution), perm. app. denied (Tenn. Nov. 16, 2016); Pervis Tyrone Payne v. State, No. W2013-01215-CCA-R28-PD (Tenn. Crim. App. July 29, 2013) (order) (motion to reopen post-conviction proceedings), perm. app. denied (Tenn. Nov. 14, 2013); Pervis Payne v. State, No. W2007-01096-CCA-CCA-R3-PD, 2007 WL 4258178 (Tenn. Crim. App. Dec. 5, 2007) (petition for post-conviction DNA analysis), perm. app. denied (Tenn. Apr. 14, 2008).

On May 11, 2021, the General Assembly amended Tennessee Code Annotated section 39-13-203, the statute addressing intellectual disability in the context of capital sentencing. See 2021 Tenn. Pub. Acts, ch. 399, § 2. As relevant to this appeal, the legislature added the following subsection:

(g)(1) A defendant who has been sentenced to the death penalty prior to the effective date of this act and whose conviction is final on direct review may petition the trial court for a determination of whether the defendant is intellectually disabled. The motion must set forth a colorable claim that the defendant is ineligible for the death penalty due to intellectual disability. Either party may appeal the trial court's decision in accordance with Rule 3 of the Tennessee Rules of Appellate Procedure.

(2) A defendant shall not file a motion under subdivision (g)(1) if the issue of whether the defendant has an intellectual disability has been previously adjudicated on the merits.

T.C.A. § 39-13-203(g). On May 12, 2021, the Defendant filed a petition asserting that he was ineligible for the death penalty because he was intellectually disabled. With his petition, the Defendant included reports from Dr. Daniel Martell and Dr. Daniel Reschly, both of whom concluded that the Defendant met the clinical and statutory definitions for intellectual disability. See T.C.A. § 39-13-203(a).^[2] The State conceded that the Defendant's petition set forth a colorable claim and requested the opportunity to have the Defendant evaluated by its own expert, Dr. Tucker Johnson, prior to an evidentiary hearing on the petition.

On November 18, 2021, the State filed a notice that it was withdrawing its request for an evidentiary hearing. Based upon its review of Dr. Johnson's report and other evidence, the State stipulated that the Defendant "would be found intellectually disabled" and should receive two life sentences for the murder convictions. Both parties agreed that the Defendant was not eligible for a sentence of life without the possibility of parole because it was not an available sentence for first degree murder at the time of the offenses in this case. See T.C.A. § 39-13-202(b) (Supp. 1987); State v. Cauthern, 967 S.W.2d 726, 735 (Tenn. 1998).

The trial court held a hearing on November 23, 2021, during which defense counsel presented their position that the trial court should not only vacate the death sentences but also should consider the manner of service of the sentences based upon new evidence that the Defendant was not a dangerous offender. The State responded that the intellectual disability finding did not affect the consecutive alignment of the sentences and that the trial court lacked discretion to consider the matter under res judicata and the law of the case doctrine. The trial court entered an order that same day vacating the Defendant's capital sentences but taking under advisement the issue of whether it could consider the manner of service of the life sentences.

The parties filed supplemental briefs on the issue of the trial court's sentencing authority after vacating a death sentence under Tennessee Code Annotated § 39-13-203(g). The Defendant argued that the law of the case...