IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
September 7, 2000 Session
STATE OF TENNESSEE v. KENYETTA FIELDS
Appeal By Permission from the Court of Criminal Appeals
Criminal Court for Greene County
No. 97-CR-440 Hon. James E. Beckner, Judge
No. E1998-00388-SC-R11-CD - Filed January 19, 2001
The issue raised on this appeal is whether the defendant’s conviction of the Class C felony of
facilitation of an illegal drug transaction within 200 yards of a school overcomes the presumption in
favor of alternative sentencing so as to justify a sentence of confinement. The trial court and the
Court of Criminal Appeals found confinement necessary to avoid depreciating the seriousness of the
offense. We conclude that the evidence presented is insufficient to overcome the presumption of
alternative sentencing. Therefore, we reverse the judgment of the Court of Criminal Appeals and
remand this case to the trial court to determine an appropriate alternative sentence.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Reversed; Case Remanded
WILLIAM M. BARKER , J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J.,
ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER , JJ., joined. FRANK F. DROWOTA, III, J., not
participating.
Greg W. Eichelman, Morristown, Tennessee, for the appellant, Kenyetta Fields.
Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Mark E.
Davidson, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.
OPINION
On November 12, 1996, defendant Kenyetta Fields participated in the sale of crack cocaine
to undercover TBI agent Mike Hannon. At 5:12 p.m., Hannon and a confidential informant parked
their car behind a Hyundai Excel containing Fields and his passenger, James Henry Davis. Davis
emerged from the car, leaving Fields in the driver’s seat, and approached Hannon, asking him what
he wanted. Hannon requested $250.00 worth of crack cocaine. Davis returned to the Hyundai and
got back into the front passenger seat. Hannon testified that he observed an “exchange” between
Davis and Fields. Although he did not actually see anything change hands, he witnessed Davis and
Fields converse with each other. Davis returned to Hannon with a 1.5 gram “rock” of cocaine. At
this time, Hannon paid Davis $260.00, causing Davis to go back to Fields’s car to get change. Davis
and Fields entered into an even more extensive conversation before Davis, delivering change, returned
to Hannon’s car for the last time. Subsequently, Fields and Davis were both arrested and indicted for
the sale of cocaine.
Fields, tried separately before a jury, was convicted of the lesser-included offense of
facilitation of the sale of cocaine, a Class C felony. At the trial, one of the State’s witnesses, agent
Tim Ward of the Drug Task Force, testified that the drug transaction had taken place near a school.
Specifically, he testified that the transaction occurred near “George Clem” school, which was, “as the
crow flies, less than 200 yards” from where the transaction occurred. However, agent Ward did not
elaborate on whether the school is a preschool, elementary, middle, or high school, vocational school,
or an alternative learning facility. Nor does the record indicate whether, at 5:12 p.m., the school was
open, whether it was visible from the location of the drug transaction, or whether children were within
the vicinity. And finally, there is no evidence that the area surrounding the school was frequently
subject to drug-related activity.
At the sentencing hearing, the State argued that the agent’s trial testimony potentially invoked
the Drug-Free School Zone Act (Act), Tenn. Code Ann. § 39-17-432 (Supp. 1999).1 Although the
State did not indict Fields under the Act, the State had previously filed with the court a notice of
intent to seek an increased sentence and had included as potential sentence enhancement factors
Fields’s criminal history and the Drug-Free School Zone Act. The trial judge concluded that because
the Act was not referred to in the indictment, the court could not use the Act to “sentence the
defendant in a higher class of felony than that for which he was charged and set out in the
indictment.” However, he decided to use the Act as an enhancement factor to increase the length of
Fields’s sentence within the classification.
In addition, although the trial judge found that Fields was entitled to the presumption of
alternative sentencing, see Tenn. Code Ann. § 40-35-102 (1997), he nevertheless determined that the
1
The Drug-Free School Zone Act enhances criminal penalties for drug offenses violating Tennessee Code
Annotated section 39-17-417 that occur within one thousand feet of school property.
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presumption had been overcome and that confinement was a more appropriate sentence. His rationale
was based on
the prior record and the circumstances of this offense, the fact that it involved crack
cocaine, the need to deter, and the fact that the defendant has a history according to
him of use of crack cocaine, or the use of cocaine at least, [and] the fact that his
employment record doesn’t appear to be good from this record.
Consequently, Fields, a Range I offender convicted of a Class C felony, was subject to a sentencing
range of three to six years, but, applying the enhancement factors, the trial court sentenced him to four
years and six months in the Tennessee Department of Correction. He was also fined $50,000 as
recommended by the jury.
The Court of Criminal Appeals affirmed the enhancement of Fields’s sentence based on his
pre-sentence report listing his previous misdemeanor convictions.2 However, the court rejected the
use of the Drug-Free School Zone Act as an enhancement factor. Quoting State v. Dykes, 803
S.W.2d 250, 258 (Tenn. Crim. App. 1990), the court stated that “‘[t]he factors contained in §§ 40-35-
113 and -114 are the exclusive factors which may be considered in setting the length of a sentence
within a given range.’” Therefore, the court reduced Fields’s sentence from four and one-half to four
years, justifying the one-year enhancement solely on his criminal history.3
The Court of Criminal Appeals also affirmed the trial court’s decision to forego alternative
sentencing in favor of a sentence of total confinement to “avoid depreciating the seriousness of the
defendant’s offense.” Relying on the Tennessee legislature’s desire to curtail drug-related offenses
within a school zone as evidenced by the Drug-Free School Zone Act, the court determined that
Fields’s activity was “especially reprehensible,” thereby warranting total incarceration. From this
determination, Kenyetta Fields requested, and we granted, permission to examine this single issue:
whether his conviction of facilitation of a drug transaction in close proximity to a school overcomes
the presumption of alternative sentencing and instead, warrants a sentence of confinement.
STANDARD OF REVIEW
When a defendant appeals a sentence, the reviewing court shall review the record de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (1999). If the court finds that “the
trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given
2
Fields’s prio r crimina l history includes: two convictions of unlawfully carrying or possessing a weapon,
and two convictions of driving without a license.
3
The Court also found that the $50,000 fine exceeded the maximum allowable fine for Class C felonies as
set forth in Tennessee Code Annotated section 40-35-111(b)(3) (1997). Thus, the Court remanded the case for a jury
to assess a new fine within the statutory limits. See Tenn. C onst. art. VI, § 14; State v. M artin, 940 S.W.2d 567, 570-71
(Tenn. 1997).
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due consideration and proper weight to the factors and principles set out under the sentencing law,
and that the trial court’s findings are adequately supported by the record,” then the burden is on the
defendant to prove that the sentence was not appropriate. State v. Hooper, 29 S.W.3d 1, 5 (Tenn.
2000) (citing State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); Tenn. Code Ann. § 40-35-
401(d)(1997)).
In determining an appropriate sentence, the appellate court must consider the following: (1)
any evidence from the trial and sentencing hearing; (2) the pre-sentence report; (3) the principles of
sentencing; (4) the nature and characteristics of the offense; (5) information offered by the parties
concerning enhancing and mitigating factors as found in Tennessee Code Annotated sections 40-35-
113 and 114; and (6) the defendant’s statement in his or her own behalf concerning sentencing.
Tenn. Code Ann. § 40-35-210(b) (1997). As a defendant with no significant criminal history
convicted of a Class C felony, the defendant was “presumed to be a favorable candidate for
alternative sentencing.” Tenn. Code Ann. § 40-35-102(6). However, this presumption can be
overcome by “evidence to the contrary.” Id.
ANALYSIS
The State argues that the defendant’s facilitation of the delivery of crack cocaine within 1,000
feet of a school is a circumstance of the offense warranting a denial of alternative sentencing. In
support of its argument, the State looks to the intent of the General Assembly to establish drug-free
school zones as evidence of the seriousness of the offense; moreover, the State cites to the explicit
language in the Drug-Free School Zone Act, Tenn. Code Ann. § 39-17-432 (Supp. 1999),4 to argue
that confinement is necessary to serve as a deterrent to this type of “unacceptable conduct.”
4
The A ct states, in pertin ent part, that
(a) [i]t is the intent of this section to create Drug-Free School Zon es for the purpose
of providing all students in this state an environment in which they can learn
without the distractions and dangers that are incident to the occurrence of drug
activity in or around school facilities. The enhanced and man datory minimum
sentences required by this section for drug offenses occurring in a Drug-Free
Schoo l Zone ar e necessa ry to serve as a deterren t to such un acceptab le condu ct.
(b) A violation of § 39-17-417, or a conspiracy to violate such section, that occurs on
the grou nds or fac ilities of any sch ool or w ithin one thousand feet (1,000') of the
real property that comprises a public or private elementary school, middle school
or secondary school shall be punished one (1) classification higher than is provided
in § 39-17-417(b)-(i) for such violation.
(c) Notwithstanding any other provision of law or the sentence imposed by the cou rt
to the contra ry, a defen dant sente nced fo r a violation of subsection (b) shall be
required to serve at least th e minim um sen tence for su ch defen dant’s ap propriate
range of sentence. Any sentence reduction credits such defend ant may be eligible
for or earn sh all not ope rate to permit or allow the release of such defendant prior
to full service of such minimum sentence.
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To invoke the School Zone Act and sentence the defendant in accordance with the Act’s
enhanced penalties as requested by the State, the defendant would have had to be convicted of
violating, or conspiring to violate, section 39-17-417. Tenn. Code Ann. § 39-17-432(b). However,
Fields was convicted only of facilitation of the sale of cocaine. Even if Fields had been convicted of
a more serious offense, the State did not indict Fields under the Act. Furthermore, there is no
evidence that the indictment included any reference to the drug sale occurring near, or within “one
thousand feet of,” a school. Moreover, there is no evidence in this record that the George Clem
school was an elementary, middle, or secondary school as required by the Act. We therefore find that
even if the defendant’s conduct had met the requirements necessary to invoke the School Zone Act,
he would not have been given proper notice that he was being charged under this enhancement
statute. Cf. State v. Hudson, 562 S.W.2d 416, 419 (Tenn. 1978) (holding that Tennessee Code
Annotated section 39-4914, which provided additional punishment for one who employs a firearm
as a means of committing a felony, does not create a separate offense, but provides only for increased
punishment and “the form of the indictment . . . should have been in compliance with the construction
of [section] 30-4914.”)
In the alternative, a defendant is presumed to be a favorable candidate for alternative
sentencing if, under Tennessee Code Annotated section 40-35-102(6) (1997), the defendant is an
especially mitigated or standard offender of a Class C, D, or E felony and does not meet the criteria
of section 40-35-102(5). Therefore, to be eligible for alternative sentencing, the defendant must not
have committed the “most severe offense,” nor have a criminal history evincing either “a clear
disregard for the laws and morals of society,” or “failure at past efforts at rehabilitation.” Id. In this
case, Fields, a Range I offender convicted of a Class C felony whose criminal record consists of two
traffic violations and two misdemeanor convictions, does not display a clear disregard for the law;
nor does his record indicate any failed efforts at rehabilitation. Therefore, Fields is presumed to be
a favorable candidate for alternative sentencing options.
Nevertheless, this presumption of alternative sentencing may be rebutted by “evidence to the
contrary.” Guidance as to what constitutes evidence to the contrary may be found in the following
sentencing considerations contained in Tennessee Code Annotated section 40-35-103(1) (1997):
(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the offense or
confinement is especially suited to provide an effective deterrence to others likely to
commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently been applied
unsuccessfully to the defendant.
In this case, neither the trial court nor the Court of Criminal Appeals discussed whether subsections
-103(1)(A) and (C) apply to deny Fields the presumption of alternative sentencing. Accordingly, after
conducting our own de novo review of the record, we conclude that Fields’s criminal record does not
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indicate a “long history” of criminal conduct, and is therefore insufficient to support a sentence of
incarceration under Tennessee Code Annotated section 40-35-103(1)(A). Moreover, there is no
evidence that the defendant lacks the potential for rehabilitation, Tenn. Code Ann. § 40-35-103(1)(C).
We therefore find that sections -103(1)(A) and (C) are not implicated. Consequently, the only issue
in this case is whether the proximity of the drug transaction to a school, standing alone, warrants a
sentence of total confinement under section 40-35-103(1)(B).
The trial court, applying both prongs of subsection (B), concluded that “confinement is
necessary in order to avoid depreciating the seriousness of the offense . . . [and because] the need to
deter . . . is important in this case . . . [based on] the nature of the offense, the circumstances.”
Although the Court of Criminal Appeals affirmed the sentence of incarceration based on the
seriousness of the offense, it determined that the record did not support incarceration based on the
need to deter.
First, we reverse the decision of the Court of Criminal Appeals holding that alternative
sentencing was properly denied to avoid depreciating the seriousness of the offense under section 40-
35-103(B). For this provision to apply, the circumstances of the offense “as committed, must be
‘especially violent, horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or
exaggerated degree,’ and the nature of the offense must outweigh all factors favoring probation.”
State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985); State v. Hartley, 818 S.W.2d 370, 374-75 (Tenn.
Crim. App. 1991). Upon de novo review of the record, we are unable to find any facts or
circumstances that meet this standard. For example, there is no indication that the school was visible
from the location of the drug transaction. Similarly, there is no evidence that students were in the
vicinity, were being solicited by drug dealers, were aware of the drug transaction, or were in any way
involved. Contrary to the State’s argument, the mere existence of the Drug-Free School Zone Act,
without more, cannot elevate the nature of this offense to one requiring incarceration. Therefore, the
circumstances of the defendant’s offense, as committed by him, do not justify a denial of probation.
However, we affirm the decision of the intermediate court finding insufficient evidence in the
record “indicating that the sentence imposed would have a deterrent effect within the jurisdiction.”
Recently, this Court addressed the issue of when a defendant is properly denied probation based on
the need for deterrence. In Hooper, we held that
a trial court’s decision to incarcerate a defendant based on a need for deterrence [will
be presumed to be correct] so long as any reasonable person looking at the entire
record could conclude that (1) a need to deter similar crimes is present in the particular
community, jurisdiction, or in the state as a whole, and (2) incarceration of the
defendant may rationally serve as a deterrent to others similarly situated and likely to
commit similar crimes.
Id. at 10. We then suggested several non-exclusive factors to guide the trial courts when deciding
whether a need for deterrence is present and whether incarceration is “particularly suited” to achieve
that goal:
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(1) Whether other incidents of the charged offense are increasingly present in the
community, jurisdiction, or in the state as a whole;
(2) [w]hether the defendant’s crime was the result of intentional, knowing, or reckless
conduct or was otherwise motivated by a desire to profit or gain from the criminal
behavior;
(3) [w]hether the defendant’s crime and conviction have received substantial publicity
beyond that normally expected in the typical case;
(4) [w]hether the defendant was a member of a criminal enterprise, or substantially
encouraged or assisted others in achieving the criminal objective;
(5) [w]hether the defendant has previously engaged in criminal conduct of the same
type as the offense in question, irrespective of whether such conduct resulted in
previous arrests or convictions.
Id. at 10-12.
Based on our de novo review of the record in this case, we find no evidence to support Fields’s
sentence of incarceration based upon any particular need for deterrence.5 The only information
revealed by the record that even hints of a need to deter drug-related crimes is a statement made by
the trial judge: “We have a terrific problem of crack cocaine here in Greene County. The docket
reflects it when you submit a copy of the docket for proof in the case. It’s just a significant problem
in this community.” The trial court’s observation and general reference to the docket cannot serve
as a substitute for factual findings containing comparisons to indicate increased drug use in Greene
County that would require a need for deterrence. Therefore, absent proof of the need to deter similar
crimes in the “community, jurisdiction, or in the state as a whole,” Hooper, 29 S.W.3d at 10, and
absent proof of additional factors, we find no basis to affirm a sentence of incarceration based on a
need for deterrence.
The State argues that the need for deterrence is shown by the terms of the Drug-Free School
Zone Act. We disagree. The State has presented no proof in the record of a specific need to deter
similar crimes. Moreover, the State’s rationale would create a per se deterrable crime, which this
Court sought to eliminate in Hooper.
CONCLUSION
For the foregoing reasons, we hold that the record lacks any evidence indicating that this
offense was especially reprehensible or offensive. We conclude that the testimony by the State’s
witness as to the close proximity of the drug sale to a school, standing alone, is insufficient evidence
to overcome the presumption of alternative sentencing. Without specific proof to justify a sentence
of incarceration, we find that the defendant Fields remains a favorable candidate for alternative
5
Because no evidence has been presented indicating a need to deter, we need not decide whether incarceration
of the defenda nt will rationally serve as a deterre nt to others likely to com mit similar crimes.
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sentencing. This Court finds the evidence in the record insufficient to justify a sentence of
incarceration based on deterrence grounds or based on the seriousness of the offense. Therefore,
based on our de novo review of the record, we affirm the conviction. However, we reverse the
judgment of the Court of Criminal Appeals denying alternative sentencing to the defendant, and we
remand this case to the trial court to determine an appropriate alternative sentence.
Costs of this appeal shall be paid by the State of Tennessee.
______________________________
WILLIAM M. BARKER, JUSTICE
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