Appellate panel hears challenge to consecutive sentences tied to statute enacted after offense

Jackson, Tenn. — The Tennessee Court of Criminal Appeals heard oral argument on an appeal from Henry County in which defense counsel Benjamin Perry asked the court to vacate consecutive sentences imposed on Robin Lee Teague, saying the trial court relied solely on a statutory subsection that did not exist when the defendant's conduct ended.

Perry told the three-judge panel that "Mister Teague's sentence was doubled from 12 years to 24 by application of a statute that did not exist when his conduct occurred." He said the trial court invoked Tennessee Code Annotated section 40-35-115(b)(10), a provision Perry said was enacted in May 2023 and became effective July 23, while Teague's conduct concluded in February 2020.

The issue is both constitutional and procedural. Perry argued the use of the later-enacted subsection to impose consecutive sentences violates the U.S. Constitution's ex post facto clause and that the sentencing order, which also imposed maximum-in-range terms, was an abuse of discretion given extensive mitigation evidence including Teague's lack of prior record, service as a U.S. military veteran, and documented medical conditions.

"By relying on it to double the length of Mister Teague's imprisonment, the trial court imposed a punishment that was more severe than the law allowed when his conduct occurred," Perry said, citing Weaver v. Graham and Tennessee precedent that consecutive sentences are a narrow exception requiring individualized findings.

The State, represented by Will Lundy, told the panel the court should affirm. Lundy said the state and the trial court "missed it" by relying on the subsection, but asserted that Teague failed to preserve an ex post facto challenge at trial and therefore must meet the plain-error standard on appeal. Lundy also argued alternate provisions of section 40-35-115(b) ' notably subsections (b)(2) and (b)(5) ' would independently permit consecutive sentences based on the record.

Lundy pointed to factual and precedent-based comparisons, including State v. Perry, to argue the defendant's possession and dissemination of images and videos could support findings that the defendant's criminal activity was "considerable in amount or scope" and that the offenses involved aggravating circumstances. The state also cited legislative history, including a floor hypothetical offered by Senator Dawn White, to support the statute's interpretation.

Perry responded that the defense did not have notice the prosecution would seek consecutive sentences under that specific subsection at sentencing and that the trial court announced the statutory basis only when pronouncing sentence. He urged either de novo review on the ex post facto issue or, at minimum, review for plain error, saying "the record proves otherwise" as to any waiver claim.

Attorneys debated whether the statute at issue is substantive or procedural for ex post facto purposes and whether the record shows alternative statutory grounds were available to the trial court. Neither side asked the panel to enter a sentencing order at argument; both requested appellate review. The panel did not issue a ruling at the hearing.

The court proceeding included citations to Tennessee precedent (State v. DeBerry, State v. Perry) and to United States Supreme Court authority (Weaver v. Graham) used by counsel to frame constitutional and statutory questions. The panel acknowledged briefing and oral argument and did not announce a decision at the close of argument.