IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1999 SESSION
October 28, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, * C.C.A. # 01C01-9811-CC-00467
Appellant, * MONTGOMERY COUNTY
VS. * Honorable John H. Gasaway, III, Judge
DERRICK JENKINS, * (Sale of Controlled Substance--
Cocaine)
Appellee. *
FOR THE APPELLANT: FOR THE APPELLEE:
FRANK JASPER RUNYON, III PAUL G. SUMMERS
301 Main Street Attorney General & Reporter
Clarksville, TN 37040
KIM R. HELPER
Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
JOHN WESLEY CARNEY, JR.
District Attorney General
HELEN OWSLEY YOUNG
Assistant District Attorney
204 Franklin Street , Suite 200
Clarksville, TN 37040-3420
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Derrick Jenkins, appeals a certified question of law. He
pled guilty to two sales of over 0.5 grams of Schedule II controlled substance,
cocaine. The Montgomery County Circuit Court sentenced him to two concurrent
15 year sentences. The defendant asserts that the Drug-Free School Zone Act,
by which the trial court raised the classification for the offenses from Class B to
Class A felony offenses, is unconstitutional. We disagree and AFFIRM the trial
court’s judgment.
BACKGROUND
The defendant was indicted by the Montgomery County Grand Jury for ten
counts involving the sale or delivery of over 0.5 grams of cocaine, occurring over
five different days in early 1997. The defendant was indicted for one count of
delivery and for one count of sale on each of the five days. Further, the
defendant was indicted for one count of delivery and for one count of sale of over
26 grams of cocaine occurring on a specific date in July 1997. The indictments
alleged that all the offenses occurred within 1,000 feet of a school zone, as
defined by the School Zone Act.
The defendant faces higher penalties and mandatory minimum sentences
of incarceration under the School Zone Act. His motion to dismiss the twelve
indictments asserted that the School Zone Act is unconstitutional. The trial court
denied the motion, and the defendant subsequently pled guilty to two counts
constituting Class A felonies under the statute. As part of his plea agreement,
the defendant reserved appeal on a certified question of law:
Whether Tenn. Code Ann. § 39-17-432 is unconstitutional as it:
(a) is vague, overbroad and does not put a person of
reasonable intelligence on notice as to how to measure the
distance between the offense locale and the school
property;
(b) is violative of due process;
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(c) is violative of the equal protection clause of the Fourteenth
Amendment of the United States Constitution;
(d) is violative of Article I Section 8 of the Tennessee
Constitution;
(e) is not a valid exercise of the police power;
(f) is violative of Article 1 Section 13 of the Tennessee
Constitution.
(g) is violative of the Eighth Amendment of the United States
Constitution.
ANALYSIS
The pertinent provisions of the Drug-Free School Zone Act follow:
(a) It is the intent of this section to create Drug-Free School Zones
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 mandatory
minimum sentences required by this section for drug offenses
occurring in a Drug-Free School Zone are necessary to serve
as a deterrent to such unacceptable conduct.
(b) A violation of § 39-17-417, or a conspiracy to violate such
section, that occurs on the grounds or facilities of any school or
within 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 court to the contrary, a defendant sentenced for
a violation of subsection (b) shall be required to serve at least
the minimum sentence for such defendant’s appropriate range
of sentence. Any sentence reduction credits such defendant
may be eligible for or earn shall not operate to permit or allow
the release of such defendant prior to full service of such
minimum sentence.
(d) Notwithstanding the sentence imposed by the court, the
provisions of title 40, chapter 35, part 5, relative to release
eligibility status and parole, shall not apply to or authorize the
release of a defendant sentenced for a violation of subsection
(b) prior to service of the entire minimum sentence for such
defendant’s appropriate range of sentence.
(e) Nothing in the provisions of title 41, chapter 1, part 5 shall give
either the governor or the board of probation and parole the
authority to release or cause the release of a defendant
sentenced for a violation of subsection (b) prior to service of the
entire minimum sentence for such defendant’s appropriate
sentence.
Tenn. Code Ann. § 39-17-432.
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The defendant appeals a certified question of law under Tennessee Rule
of Criminal Procedure 37(b)(2)(i):
An appeal lies from any order or judgment in a criminal proceeding
where the law provides for such appeal, and from any judgment of
conviction: . . . (2) Upon a plea of guilty or nolo contendere if: (i)
Defendant entered into a plea agreement under Rule 11(e) but
explicitly reserved with the consent of the state and of the court the
right to appeal a certified question of law that is dispositive of the
case.
Certified Question
The trial court’s order comprises (1) a statement of the certified question,
sufficient to “clearly identify the scope and the limits of the legal issue reserved”;
(2) consent to the appeal from the trial judge and from the state; and (3) accord
from the trial judge the state on the dispositive nature of the question. State v.
Preston, 759 S.W.2d 647, 650 (Tenn. 1988); see also Tenn. R. Crim. P. 37,
advisory comm’n cmts [1997]. Further, this Court agrees that the certified
question regarding per se constitutionality of the School Zone Act is dispositive.
This appeal is properly before this Court.
Due process
The defendant asserts that the School Zone Act is unconstitutionally
vague and violative of due process because it lacks an explicit mens rea
requirement. The state responds that the Act requires no mens rea component
because it merely enhances punishment for certain violations of the Tennessee
Drug Control Act, see Tenn. Code Ann. § 39-17-401, et seq., and is not a
separate offense statute. Both the defendant’s and the state’s briefs
characterize the Act as an enhancement of the Drug Control Act. Generally, the
courts are charged with upholding the constitutionality of statutes where
possible. See State v. Joyner, 759 S.W.2d 422 (Tenn. Crim. App. 1987). In this
case, we do not decide whether the General Assembly intended the School Zone
Act to be a separate offense or an enhancement of punishment for violations of
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the Drug Control Act. Such determination is unnecessary for our analysis; we
uphold the constitutionality of the School Zone Act.
Assuming arguendo that the state legislature intended the Act to be an
enhancement statute, we concur with the state’s argument that such
enhancement statutes do not require explicit mens rea language. See John J.
Villaneuva v. Carlton, No. 03C01-9611-CR-00425 (Tenn. Crim. App. filed Oct. 3,
1997, at Knoxville)(The repealed habitual offender act, an analogous
enhancement provision, was not invalid for lack of a mens rea requirement.).
Conversely, if the legislature intended this act as a separate offense
statute, the absence of a specific mens rea requirement does not itself establish
a constitutional violation. Instead, by Tennessee statute, a criminal statute
lacking a specific mens rea impliedly requires at least a showing of recklessness
for a valid conviction. See Tenn. Code Ann. § 39-11-301(c). Therefore, even if
the School Zone Act is read as an offense statute, it is not constitutionally
deficient in its lack of an explicit mens rea requirement but rather is presumed to
require a showing of recklessness.1
The defendant also argues that the “misconduct” on behalf of the states’
agents violated his due process rights. Specifically, he complains that the
officers impermissibly lured him into the school zone so that the resultant
penalties would be greater. As we interpret defendant’s certified question as
attacking only the facial constitutionality of the School Zone Act and not its
constitutionality as applied, we find that this issue falls outside the scope of
appeal. Further, we note that without any factual record, we, even if so inclined,
could not review this claim.
1
W e do not m ake a d eterm ination of the defend ant’s m ens rea in the instan t conviction s.
Such a determination is not within the scope of the certified question. Further, this court is without
any factua l basis to m ake su ch dete rmina tions.
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The defendant also asserts that the School Zone Act violates due process
because it is unconstitutionally vague. He argues that a person of reasonable
intelligence could not determine how to measure the distance between the
transaction locale and the school property, should they wish to distinguish a
violation of the Drug Control Act from a violation of the School Zone Act. We
disagree with the defendant’s conclusion. The statute puts a person on notice:
If an offender commits certain violations of the Drug Control Act within 1,000 feet
of the school or of the school grounds, the offender faces harsher penalties. We
conclude that the reasonable reader would measure the enhanced penalty
region from the perimeter of the grounds of a school, consistent with the statute’s
clear and unambiguous language, and not from some central point within the
property. We concede that the defendant correctly states that a pedestrian,
intending to violate the Drug Control Act but not the School Zone Act, would face
some difficulty in measuring a location at least 1,001 feet from a school’s
property. However, that difficulty does not constitute a due process violation.
Equal Protection Clause
The defendant asserts that the School Zone Act violates equal protection2
because (1) the state agents lured the defendant to the locale; (2) the statute is
redundant; (3) the statute is under-inclusive; and (4) the statute is over-inclusive.
The assertion regarding the state agents’ conduct is outside the scope of
this review. We do, however, respond to the defendant’s argument that the
agents orchestrated the sales and deliveries to occur “late at night, earlier in the
morning or when school was closed for the year, and thus no children were
present,” because that argument calls into question the intent and purpose of the
School Zone Act. These considerations are pertinent for further analysis
2
The Fourteenth Amendment to the United States Constitution and both Article I, § 8
and Article XI, § 8 of the Tennessee Constitution provide for equal protection under the law.
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regarding the defendant’s equal protection claim. The record contains no
evidence regarding the presence or absence of children in relation to the instant
drug transactions, but we disagree with the defendant’s suggestion that the
statute should be, as a constitutional matter, enforced only when children are
actually attending school during the regular school year. Children frequent
school grounds outside the traditional classroom hours. Playgrounds and
basketball courts provide year-round entertainment for children. Schools
facilities host various after-school clubs and activities. Further, many schools
conduct summer classes. Accordingly, the instruments of transactions and
subsequent use, such as needles and other paraphernalia, likely to be left at the
school grounds present hazards and distractions to students at all times. The
General Assembly articulated its intent to prescribe harsher penalties for drug
offenses in the vicinity of schools, deterring these “distractions and dangers . . .
incident to the occurrence of drug activity.” Tenn. Code Ann. § 39-17-432(a).
Next, the defendant argues that the School Zone Act is impermissibly
redundant with other restrictions against sales to minors. See Tenn. Code Ann.
§ 39-17-417(k).3 This argument is incorrect. Unlike other restrictions, the
legislative intent here is not simply the removal of children from drug sales and
use but rather the removal of drug sales and use from schools and school
children. We do not find this goal, when compared with the prior restrictions of
the Drug Control Act, unconstitutionally redundant.
The defendant also argues that the School Zone Act is under-inclusive to
the extent that it does not address playgrounds, parks, or other areas outside
school grounds frequented by children. This defect, the defendant argues,
renders the statute violative of equal protection. Standards of constitutional law
3
“A violation of this section or a conspiracy to violate this section where the recipient or
the intended recipient of the controlled substance is under eighteen (18) years of age shall be
punished one (1) classification higher than provided in [preceding subsections of the Drug Control
Act].”
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provide that legislation reasonably related to a legitimate goal, even legislation
that falls short of addressing all sources of the proscribed problem, passes
constitutional muster. See United States v. Holland, 810 F.2d 1215, 1218-19
(D.C. Cir. 1987)(addressing a similar argument against the federal schoolyard
statute.).
The defendant also argues that the School Zone Act is over-inclusive. He
questions, for instance, the applicability of the School Zone Act to drug
transactions consummated by adults in homes falling within the statutorily
prescribed area. Therefore, he argues, the statute proscribes behavior outside
its goals. Again, however, we conclude that despite whatever incongruence the
defendant perceives, the statute is plainly rationally related to the legitimate
governmental purpose. See id. Even in defendant’s proffered hypothetical, the
concerns motivating the School Free Zone Act remain, and any drug traffic within
school zones, even by adults within homes, presents the same dangers and
distractions. The habiting of the general area by users and dealers, the potential
for violence and weapons, the threat of paraphernalia, and the daily proximity of
children to the dealers are concerns reasonably and rationally addressed by the
Act.
Cruel and unusual punishment
The defendant further asserts that the School Zone Act violates
constitutional proscriptions against cruel and unusual punishment.4 He argues
that the Act allows for cruel and unusual punishment because it provides for a 15
year day-for-day prison sentence for each conviction, a sentence which in his
estimation is disproportionate. For argument, he compares this sentence to
4
These proscriptions are stated by the Eighth Amendment and apply to the states
throu gh th e Fo urtee nth A me ndm ent o f the U nited State s Co nstitu tion a nd ar e also foun d in Ar ticle
1 § 13 of the Tennessee Constitution.
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sentences for convictions of second degree murder, especially aggravated
kidnaping, and others.
We are not convinced by the defendant’s complaint or argument. As a
threshold matter, mandatory sentences for narcotics offenses are not per se
“cruel and unusual punishment.” State v. Hinsley, 627 S.W.2d 351, 355 (Tenn.
1982). As we review sentences and proportionality, our legislature receives
substantial judicial deference regarding its establishment of crimes and
punishments, and, excepting capital offense appeals, challenges against that
body’s authority are rarely successful. See State v. Harris, 844 S.W.2d 601, 602
(Tenn. 1982). On review, a finding of “gross disproportionality” between the
defendant’s offenses and his punishment is necessary for further scrutiny; we do
not find such disproportionality. See id. at 603.
The defendant also asserts that the Eighth Amendment’s prohibition
against cruel and unusual punishment is violated because the “statute does not
clearly address any evils that were not already addressed.” Our previous
discussion of the alleged redundancy of the School Zone Act in relation to the
Drug Control Act dispenses with this challenge.
The defendant next asserts that the statute imposes cruel and unusual
punishment because the School Zone Act is overly broad in affecting others than
those corrupting minors through narcotics offenses. We disagree. Again, the
defendant construes the intent and purpose of the School Zone Act too
restrictively. The School Zone Act seeks to deter transactions that impose the
discussed risks in the defined areas and not merely to punish those selling to
children. Those violators selling to only adults within the defined premises
nevertheless contribute to these risks.
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Finally, the defendant asserts that the statute was applied in a “capricious,
luring, and a deliberate attempt to entrap drug seller/delivers [sic] under the
umbrella statute.” Even if this argument fell within the defendant’s certified
question of law, this court would be unable to review this claim. The defendant
presents no supporting facts or argumentation.
CONCLUSION
We AFFIRM the trial court’s judgment.
_______________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
____________________________
JOHN H. PEAY, Judge
____________________________
DAVID H. WELLES, Judge
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