State v. Kendrick

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE September 10, 1999

JULY 1999 SESSION Cecil Crowson, Jr.
Appe llate Court
Clerk

STATE OF TENNESSEE, * C.C.A. # 03C01-9810-CR-00374

Appellee, * SULLIVAN COUNTY

VS. * Hon. R. Jerry Beck, Judge

KENNETH LEE KENDRICK, * (Marijuana in a Penal Institution)

Appellant. *

For Appellant: For Appellee:

Terry L. Jordan Paul G. Summers
Assistant Public Defender Attorney General and Reporter
P.O. Box 839
Blountville, TN 37617 Clinton J. Morgan
Counsel for the State
425 Fifth Avenue North
Nashville, TN 37243-0493

Joseph Eugene Perrin
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617

OPINION FILED:__________________________

REVERSED AND DISMISSED

GARY R. WADE, PRESIDING JUDGE
 OPINION

The defendant, Kenneth Lee Kendrick, was convicted in a bench trial

of knowingly taking marijuana into a penal institution. Tenn. Code Ann. § 39-16-

201. The trial court imposed a Range I sentence of four years.

In this appeal of right, the defendant contends that a community

corrections facility does not qualify as a penal institution and argues that the trial

court erred by the imposition of a four-year sentence and the denial of any form of

alternative sentencing. Because the state was unable to establish that the

defendant possessed marijuana in a "penal institution," the conviction must be

reversed and the charge dismissed.

On December 19, 1996, the defendant, who was serving a six-year

community corrections sentence in the John R. Hay House for burglary and theft

over $1,000.00, was found in possession of marijuana. Stuart Canter, a case officer

at the facility, reported the incident to Officer Thomas Patton of the Kingsport Police

Department. The defendant admitted ownership of the marijuana, "three hand-

rolled, smoked down roaches," which was found in a Marlboro cigarette pack. The

TBI laboratory confirmed the nature of the substance. The defendant offered no

proof in his own behalf and at the conclusion of the evidence, sought a judgment of

acquittal on the basis that the Hay House, which met the guidelines for a community

corrections program, did not fall within the definition of a penal institution. The trial

court rejected the argument, holding that the Hay House had "unique

characteristics" beyond the usual community corrections facility and, therefore,

qualified as a penal institution.

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 I

The pertinent portion of the statute provides as follows:

(a) It is unlawful for any person to:
(1) Knowingly and with unlawful intent take, send or
otherwise cause to be taken into any penal institution
where prisoners are quartered or under custodial
supervision any weapons, ammunition, explosives,
intoxicants, legend drugs, or any controlled substances
found in chapter 17, part 4 of this title.

Tenn. Code Ann. § 39-16-201 (emphasis added). Initially, the defendant maintains

that a facility to which a person is committed under the Tennessee Community

Corrections Act of 1985, Tenn. Code Ann. § 40-36-101, et seq., is not a penal

institution. The defendant asserts that the Hay House, as defined by Tenn. Code

Ann. § 40-36-102(5) is a "[c]ommunity-based alternative[] to incarceration" which

provides services and programs in the place of incarceration and that the

alternatives include a short-term community residential option and individualized

treatment services as provided by Tenn. Code Ann. § 40-36-302. The defendant

concedes that he required full-time supervision during the course of his treatment at

the facility but points out that community corrections funds may not be utilized for

the operation of municipal or county jails or state prison facilities. Tenn. Code Ann.

§ 40-36-303(a)(1) & (2).

In support of his argument, the defendant has cited a memorandum

from William B. Hutcherson, Jr., staff counsel to the Department of Correction. In

pertinent part, the memorandum provides as follows:

Hay House, Inc., is a private agency with which the
Department of Correction contracts under the community
corrections grant funds program authorized pursuant to
T.C.A. § 40-36-301. An example of a community
program service which may be contracted with is a
private agency such as Hay House, Inc. which provides
short-term community residential treatment options as
set forth in T.C.A. § 40-36-302(a)(2). As set forth in this
statute, the focus of such programs is "treatment rather

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 than detention" as an alternative to incarceration.

Therefore, this office would refrain from defining or
referring to any community correction program,
residential or otherwise, as a correctional facility or penal
institution.

(Emphasis added).

A stipulation of facts includes the following excerpt:

The Hay House is inspected and meets State standards
and guidelines for community corrections. Each person
committed to the John R. Hay House (Hay House) must
sign a contract with Hay House which enumerates the
rules by which the person is to abide while at the facility.
Every individual referred to the Hay House has a
treatment program for a particular program with which
that person must comply to remain at the facility. After
the residential program is completed, the person is
placed on home supervision with guidelines set out by
Hay House which include treatment, drug screens, and
reporting. The Hay House is one of only two Community
Corrections programs in the State that house convicted
felons that are committed to the program in lieu of
incarceration. The felony offenders committed to the
program are restricted in their movements in the
community. To leave the program for community
activities such as employment, the offender must first
have staff verification of the activity. After verification,
the offender must sign out, be transported by program
transportation and then sign in after being returned to the
program. A 24 hour furlough may be obtained by an
offender only after certain criteria are met including a
minimum continuous stay at the facility prior to applying.
Although not incarcerated per se, the convicted felons
housed there are given jail credit for the time they are in
the program.

(Emphasis added).

The state points out that the Hay House provides full-time custodial

supervision to felony offenders who are restricted in their movements, must have

staff verification of outside activities, must sign in and out, and must use official

transportation. Convicted felons in the Hay House receive jail credit. For all these

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reasons, the state submits that this facility, due to its uniqueness, falls within the

definition of a penal institution, "where prisoners are quartered or under custodial

supervision...." Tenn. Code Ann. § 39-16-201 (emphasis added). The state argues

that the term followed by the disjunctive and "under custodial supervision" broadens

the application of the statute.

In State v. Bentley, 938 S.W.2d 706 (Tenn. Crim. App. 1996), a panel

of this court ruled that the defendant had not committed the offense of escape from

a penal institution by leaving a community correction office after being informed that

he would have to return to jail immediately due to his removal from the program.

Tenn. Code Ann. § 39-16-605. The underlying rationale for the decision was that a

community corrections office did not qualify as a penal institution. The court made

the interpretation from the language of Tenn. Code Ann. § 39-16-601, which

prohibits an escape from a penal institution. That legislation includes a definition of

the term penal institution:

Any institution or facility used to house or detain a person
... [c]onvicted of a crime; ... [a]djudicated delinquent by a
juvenile court; or ... [w]ho is in direct or indirect custody
after a lawful arrest.

Tenn. Code Ann. § 39-16-601(4)(A)-(C).

In Bentley, Judge John H. Peay wrote the following for the court in its

conclusion that there was a significant difference between a placement in

community corrections and a sentence to a custodial facility:

For purposes of the escape statute, T.C.A. § 39-16-601
defines "penal institution" as "any institution used to
house or detain a person: (A) [c]onvicted of a crime; or
(B) [w]ho is in direct or indirect custody after a lawful
arrest." T.C.A. § 39-16-601(4) (1991) (emphasis added).
Community Corrections, however, is an alternative to
incarceration and is noncustodial in nature. See T.C.A.
40-36-102(5) (1990); T.C.A. § 40-36-104(4) (1990);

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 T.C.A. § 40-36-106(e)(1) (1990). Community Corrections
Programs "involve close supervision but ... do not involve
housing of the offender in a jail, workhouse or community
facility." T.C.A. § 40-36-302(a)(1) (1990). From our
review of the plain language of the statutory provisions at
issue, we conclude that Community Corrections does not
qualify as a "penal institution" for the purposes of the
escape statute. Moreover, we find no evidence that the
legislature, in enacting the Community Corrections Act of
1985 and the Criminal Sentencing Reform Act of 1989,
intended to include a violation of the conditions of a
Community Corrections sentence in the criminal offense
of escape from a penal institution. Accordingly, from a
review of the entire record, we find that ... the petitioner
was serving a Community Corrections sentence and his
departure from the Community Corrections office did not
meet the statutory requirements of the criminal offense of
escape from a penal institution.

Bentley, 938 S.W.2d at 710.

The trial court here distinguished this case from the holding in Bentley

because of "[the] residential status [of the Hay House]." It concluded that the

Bentley ruling was specifically limited to the escape statute and that the 24 hour per

day, seven days per week supervision at the Hay House was more like a custodial

facility than other community corrections facilities. The trial court reasoned that the

introduction of a controlled substance to the Hay House would present all of the

dangers incident to the same conduct in a prison.

The core question, of course, is whether the term "penal institution," as

provided by the applicable statute, should be construed to include community

correction facilities such as the Hay House. It should be noted that the 1994

amendment to the statute substituted the word "penal" for "state, county or

municipal" institution.

In matters of statutory construction the role of this court is to ascertain

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and give effect to the intent of the legislature. State v. Williams, 623 S.W.2d 121,

124 (Tenn. Crim. App. 1981). A basic principle of due process is that an enactment

whose prohibitions are not sufficiently defined is void for vagueness. State v.

Lakatos, 900 S.W.2d 699, 701 (Tenn. Crim. App. 1994). Generally, the language of

a penal statute must be clear and concise to give adequate warning so that

individuals might avoid the forbidden conduct. State v. Boyd, 925 S.W.2d 237, 242-

43 (Tenn. Crim. App. 1995). Yet, legislative enactments must be interpreted in their

natural and ordinary sense without a forced construction to either limit or expand

their meaning. State v. Thomas, 635 S.W.2d 114, 116 (Tenn. 1982). Courts must

construe statutes as a whole and in conjunction with their surrounding parts; the

interpretation should be consistent with their legislative purpose. State v. Turner,

913 S.W.2d 158, 160 (Tenn. 1995). The meaning of a statute is to be determined

not from specific words in a single sentence or section but from the act in its entirety

in light of the general purpose of the legislation; any interpretations should express

the intent and purpose of the legislation. Loftin v. Langsdon, 813 S.W.2d 475, 478-

79 (Tenn. App. 1991); National Gas Distrib., Inc. v. State, 804 S.W.2d 66, 67 (Tenn.

1991).

The 1989 Act requires that each of the criminal statutes be fairly

interpreted. Strict construction is no longer required in ascertaining the meaning

and application of a penal statute:

Construction of criminal code.--The provisions of this
title shall be construed according to the fair import of their
terms, including reference to judicial decisions and
common law interpretations, to promote justice, and
effect the objectives of the criminal code.

Tenn. Code Ann. § 39-11-104.

The Community Corrections Act of 1985, which must be read pari

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materia with the 1989 Act, has a specific mission:

Purposes of chapter.--The purposes of this chapter are
to:
(1) Establish a policy within the state to punish
selected, nonviolent felony offenders in front-end
community based alternatives to incarceration, thereby
reserving secure confinement facilities for violent felony
offenders; and
(2) Establish a mechanism whereby state funds are
granted to local governments and qualified private
agencies to develop a range of front-end community
based punishments and services for eligible offenders
under this chapter.

Tenn. Code Ann. § 40-36-103.

To be eligible for community corrections under Tenn. Code Ann. § 40-

36-106(c), a defendant must first be eligible for probation under Tenn. Code Ann. §

40-35-303. State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989). The

goal of the Act is to provide a means of punishment as an alternative to

incarceration. Those who qualify under the Act are "selected, nonviolent offenders."

Tenn. Code Ann. § 40-36-103. The "front-end community based alternative," as

provided by statute, was designed to provide "a degree of flexibility" consistent with

societal aims not previously available under the more traditional methods of

correction. See State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990).

The traditional rules of interpretation, the applicable case law, and the objectives of

the 1985 Community Corrections Act lead us to the conclusion that the defendant in this case was not

housed in a "penal institution where prisoners are quartered or [otherw under custodial
ise]

supervision...." Tenn. Code Ann. § 39-16-201(a)(1). There is a historical distinction between a

prisoner incarcerated in a penal institution and a nonviolent offender deemed suitable for a community-

based alternative sentence. The risk of harmto the public for a violation of the statute is, in our view,

greater for a penal institution, which is primarily reserved, according to statute, for "felons committing

the most severe offenses," those with "criminal histories evincing a clear disregard for the laws and

8
morals of society," and "fail[ed] ... past efforts at rehabilitation...." Tenn. Code Ann. § 40-35-102(5).

Often a prison is specially designed to accommodate violent criminals. Nonviolent offenders are

afforded the opportunity at least for an alternative sentence dedicated to rehabilitation. Generally,

there is a lesser degree of supervision. Furthermore, the analogy between an escape froma penal

institution, as defined in Bentley, and taking a controlled substance into a penal institution is easily

drawn. For this court to adopt different definitions of the term"penal institution" for sim statutes
ilar

would hardly serve the doctrine of stare decisis. As to this defendant, the state obviously could seek a

violation of the terms of the community corrections agreem and ask for the imposition of the original
ent

sentence. Despite this ruling, this remedy appears to rem viable; but, because the defendant has
ain

presented a meritorious claim, this court m grant relief from the conviction.
ust

II

Next, the defendant complains that the trial court should have granted

probation, intensive probation, or split confinement rather than sentence the

defendant to the Department of Correction. The defendant argues that he has

changed his life by maintaining employment and remaining drug-free since the

incident at the Hay House. Although we have reversed the conviction, we will

nonetheless address the sentencing issue.

When there is a challenge to the length, range, or manner of service of a sentence, it

is the duty of this court to conduct a de novo review with a presumption that the determinations made

by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon

the affirmative showing in the record that the trial court considered the sentencing principles and all

relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones, 883

S.W 597 (Tenn. 1994). "If the trial court applies inappropriate factors or otherw fails to follow the
.2d ise

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1989 Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123

(Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the

defendant to show the impropriety of the sentence.

Our review requires an analysis of (1) the evidence, if any, received at the trial and

sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of

counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any

mitigating or enhancing factors; (6) any statements m by the defendant in his own behalf; and (7)
ade

the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

State v. Sm 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in this case dem
ith, onstrates

that the trial court made adequate findings of fact.

Among the factors applicable to probation consideration are the

circumstances of the offense; the defendant's criminal record, social history and

present condition; the deterrent effect upon the defendant; and the best interests of

the defendant and the public. State v. Grear, 568 S.W.2d 285 (Tenn.1978). The

nature and circumstances of the offenses may often be so egregious as to preclude

the grant of probation. See State v. Poe, 614 S.W.2d 403 (Tenn. Crim. App. 1981).

A lack of candor may also militate against a grant of probation. State v. Bunch, 646

S.W.2d 158 (Tenn. 1983).

As previously indicated, the purpose of the Community Corrections Act

of 1985 was to provide an alternative means of punishment for "selected, nonviolent

felony offenders in front-end community based alternatives to incarceration." Tenn.

Code Ann. § 40-36-103. Even in cases where the defendant meets the minimum

requirements of the Community Corrections Act of 1985, however, the defendant is

not necessarily entitled to be sentenced under the Act as a matter of law or right.

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State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.1987). The following offenders

are eligible for Community Corrections:

(1) Persons who, without this option, would be
incarcerated in a correctional institution;

(2) Persons who are convicted of property-related, or
drug/alcohol-related felony offenses or other felony
offenses not involving crimes against the person as
provided in title 39, chapter 2 [repealed], parts 1-3 and
5-7 or title 39, chapter 13, parts 1-5;

(3) Persons who are convicted of nonviolent felony
offenses;

(4) Persons who are convicted of felony offenses in
which the use or possession of a weapon was not
involved;

(5) Persons who do not demonstrate a present or past
pattern of behavior indicating violence;

(6) Persons who do not demonstrate a pattern of
committing violent offenses; and

Tenn. Code Ann. § 40-36-106(a) (emphasis added).

This crime qualifies as a Class C felony with a Range I sentence of

three to six years. Tenn. Code Ann. § 40-35-112(a)(3). Two enhancement factors

were applied: (1) that the defendant had a previous history of criminal convictions;

and (2) that the defendant committed the crime while on a form of release into the

community. Tenn. Code Ann. § 40-35-114(1) & (13)(E). Because the defendant

obtained a graduate equivalent diploma, had maintained employment, and had not

failed any drug screens, the trial court recognized some mitigation. Yet the

sentence of four years was based upon the enhancement factors outweighing the

mitigation factors.

In our view, the trial court imposed an appropriate sentence. The

defendant brazenly violated the most important condition of his rehabilitation plan.

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Had the statute applied to the defendant, we would have upheld the ruling.

As stated, the conviction is reversed. The cause is dismissed at the

cost of the state.

________________________________
Gary R. Wade, Presiding Judge

CONCUR:

_____________________________
David H. Welles, Judge

_____________________________
Joe G. Riley, Judge

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