A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPE L LEE

Victoria L. Bailey Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 49S02

- 0908

- CR

- 379 W ALKER W HATLEY , Appellant (Defendant below)
,

v.

S TATE OF I NDIANA , Appellee (Plaintiff belo w)

.

_________________________________ Appeal from the Marion County Superior Court, No. 49G20

- 0803

- FD

- 64067

The Honorable Michael Jensen, Judge

_________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A02

- 0809

- CR

- 808

_________________________________

June 8 , 2010
Sullivan, Justice.

The Legislature has declared that i f a person commits c ertain drug offenses w ithin 1,000
feet of a “ youth program center, ” the penal consequences are enhanced

. Defendant Walker
What ley committed such an offense within 1,000 feet of a church with an active youth program. The church constituted a “youth program center” for purposes of the enhancement.2 Background

The facts m ost favorable to the conviction indicate that in March, 200 8, Whatley was a rrested at his home on a warrant issued in an unrelated case. During a search incident to arrest, the arresting officer discovered a bag containing 3.2459 grams of cocaine in Whatley‟s pocket. In relevant part, the State charged Whatley w ith possession of cocaine as a C lass A felony. Po ssession of cocaine is ordinarily a Class C felony, but possession of three grams or more of c ocaine within 1
, 000 feet of a youth program center elevates the offense to a Class A felony. Ind. Code § 35

- 48

- 4

- 6. Whatley‟s home, where the arrest occurred, was located appro x imately 795
f eet from Robinson Community Church (“RCC”). Whether RCC qualifies as a “youth program center” for the purpose of triggering the elevation to a Class A felony is the central is sue of this

a p peal.

T h e jury found that the enhancement was supported by the evi dence and the court se ntenced Whatley to a term of 35 years. 1 Whatley appealed and the Court of Appeals r e versed his

1 The full text of the statute Whatley was convicted under is as follows:
(a) A person who, without a valid prescription or order of a practitioner acting in the course of the practitioner‟ s professional practice, knowingl y or intentionally possesses cocaine (pure or adulterated) or a narcotic drug (pure or adulterated) classified in sch edule I or II, commits possession of cocaine or a narcotic drug, a Class D felony, except as pr o vided in subsection (b).
(b) The offense i s: (1) a Class C felony if: (A) the amount of the drug involved (pure or adulterated) weighs three (3) grams or more; or (B) the person was also in possession of a firearm (as defined in IC 35

- 47

- 1

- 5); (2) a Class B felony if the person in possession of the cocaine or narcotic drug possesses less than three (3) grams of pure or adulterated cocaine or a narcotic drug: (A) on a school bus; or (B) in, on, or within one thousand (1,000) feet of: (i) school property; (ii) a public park; (iii) a family ho using complex; or (iv) a youth program center; and (3) a Class A felony if the person possesses the cocaine or narcotic drug in an amount (pure or adult e rated) weighing at least three (3) grams:3

conviction on the grounds that RCC did not qualify as a “youth progra m center.” The Court of Appeals found that RCC‟s hosting of various programs for children did not change its status as a church; thus
, removing it from the ambit of the statute‟s intended cove rage for purposes of the

sentence enhancement. W hatley v. State , 906 N.E.2d 259 (Ind. Ct. App. 2009). The Court of Appeals remanded the case with instruction s to enter the conviction as a C lass C felony and se ntence Whatley acco r dingly.

The State sought, and we granted, transfer. Ind. Appellate Rul e 58(A).

Discussion

I

Whatley first co ntends that his conviction for C lass A felony possession of cocaine, grounded on his possession being within 1,000 feet of a youth program center, should be r eversed because the criminal statute and the statute defi ning a youth program center are unconst itutionally vague as applied to him. He asserts that there was nothing about RCC that would put a person of ordinary intelligence on notice that it was a youth program center. 2 Specifically,
Wha t ley argues that RCC bears no objective indicia signaling its designation as a protected area; therefore, the statute is unconstitutional as applied to him because there was no way for him to know that he was within the proscribed distance of an “unmarked youth program center. ” (A ppellant‟s Br. 7.) Relying on Indiana case law, Whatley insists that due process demands a bright

-

(A) on a school bus; or (B) in, on, or within one thousan d (1,000) feet of: (i) school property; (ii) a public park; (iii) a family housing complex; or (iv) a youth program center.
I.C. § 35

- 48

- 4

- 6.

2 Whatley does not asser t a defense under Indiana Code section 35

- 48

- 4

- 16 that he was only briefly wit hin 1
, 000 feet of a “youth program center” and that there was no person under the age of eighteen in or within 1,000 feet of the center. See Griffin v. State , 925 N.E.2d 344 (Ind. 2010).4

line rule for what structures will trigger the sentence enhancement when the protected area is a youth pr o gram center.

The phrase “youth program cent er” is defined by statute as “(1) A building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs or services for persons less than eighteen (18) years of age [;] (2) [t] he real property on which a
buil ding or structure described in subdivision (1) is located.” I.C. § 35

- 41

- 1

- 29.

Relyin g on our decision in Walker v. State , 668 N.E.2d 243 (Ind. 1996), t he Court of A ppeals rejected Whatley‟s vagueness claim on grounds that the law does not require kno wledge of presence within a school

- zone in order to tri gger the sentence enhancement. In Walker , w e held
that presence in a school

- zone was a strict

- liability element

. Id. at 244

- 45. While the Court of
A p peals correctly notes that Walker established tha t drug offenders need not be aware of their

presence within a protected area, Whatley‟s vagueness claim can not be disposed of on this ground alone.

Walker addressed whether the school

- zone elevation in the dea ling in cocaine statute, I ndiana Code sectio n 35

- 48

- 4

- 1(b)(3), required proof of any mens rea to obtain an enhanced se ntence. But the need for proof of mens rea

– the precise issue addressed and answered in Walker

– is not the same as the constitutional requirement against vagueness. For a statute to avoid co nstitutional infirmity on vagueness grounds, it must provide the person of ordinary intelligence with notice of what conduct is prohibited. 3

In Polk v. State , 683 N.E.2d 567 (Ind. 1997)
, we addressed the defendant‟s argument that
an earlier version of the school

- zone statute was unconstitutionally vague as applied to him. 4 Polk argued that the statute did not reasonably inform average people that they would be subject to enhanced penalties for possessing drugs while stopped for a traffic vio lation in a protected

3 This is a separate question from whether the State provided enough evid ence that this particular location qualified under the definitional statute as a “youth program center” which will be addressed in Part II, infra

.

4 The specific version of the statute at issue in Polk and Walker was the 1995 version of Chapter 4 that

was in effect at the time the crimes took place in those cases.5

area. Addressing his vagueness claim, we held that “[t]he school

- zone enhancement, far from being unconstitutionally vague, quite clearly communicates to drug offenders a bright[

- ]line rule as to what conduct is proscribed. Thus a f ederal constitutional challenge on this ground is meri tless.” Id. at 572 (citing Kolender v. Lawson
, 461 U.S. 352, 357 (1983))

. 5

Whatley‟s vagueness claim focuses on the statute‟s requirement that programs or services be provided on a “regular” basis. W hile it is true that “regular” is susceptible to numerous mea nings, the Constitution does not demand a statute free of ambiguities, but instead one that will put a person of ordinary intelligence on notice or provide objective criteria for determining whet her one is within a pr o tected area. See State v. Winot , 9 88 A.2d 188, 194 (Conn. 2010) (“ Because perfect precision is n eit her possible nor required

. . . the [vagueness] doctrine does not mandate the invalidation of all impre cisely drafted statutes. Simp ly put, [w]hile some ambiguous statutes are the result of poor draftsmanship, it is apparent that in many instances the uncertainty is mer ely attributable to a desire not to nullify the purpose of the legislation by the use of specific terms
which would af

ford loopholes through which man y could escape.” (citations and internal quot ation marks omitted)).

There are likely hypothetical scenario s in which the definition of “youth program center” would be unconstitutionally vague, but vagueness challenges are challenges that statutes are u nconstitutional as

- applied, not on their faces. See Evangelatos v. Superior Court , 753 P.2d 585, 592 (Cal. 1988 ) (“Many, probably most, statutes are ambiguous in some respects and instances

5 The Court of Appeals has upheld the current version of the school

- zone statute against a vagueness claim. See Manigault v. State , 881 N.E.2d 679, 687

- 88 (Ind. Ct. App. 2008) (applying the p enalty e nhancement where there was a high density of protected locations in a particular area). And as best as we are able to determine, there is unbroken authority from other jurisdictions as well. See, e.g. , People v. Townsend , 62 Cal. App. 4th 1390 (1 998) (concluding that a school

- zone statute that was ambiguous and susceptible to more than one reasonable i n terpretation, was not impermissibly vague because it did not invite arbitrary and discriminatory e n forcement by those who administer the statute); State v. Brown , 648 So.2d 872 (La. 1995) (statute was not unconstitutionally vague as it was readily understandable, gave adequate notice of what conduct was proscribed, and provided adequate sta n dards for determining guilt or innocence of the accused); Fl uellen v. State , 104 S.W.3d 152 (Tex. App. 2003) (penalty enhancement st atute was not unconstitutionally vague despite d e fendant‟s lack of knowledge that he was in a proscribed area); State v. Davis , 970 P.2d 336 (Wash. Ct. App. 1999) (penalty enhancement statute was not unconst itutionally vague despite defendant‟s lack of knowledge that he was in a proscribed area). We have found no authority to the contrary and Whatley cites none in o p position.6

invariably arise under which the a pplication of sta tutory language may be unclear. So long as a statute does not threaten to infringe on the exercise of First Amendment or other constitutional rights, however, such ambiguities, even if numerous, do not justify the invalidation of a statut e on its face.”); accord Alcalde v. State , 74 P.3d 1253, 1260

- 61 (Wyo. 2003). Here, Whatley could have objectively discovered RCC‟s status as a youth program ce n ter by observing young people entering and exiting the building on a regular ba sis

– in fact, his residence faced RCC‟s entrance

. Whatley could have contacted RCC to inquire whether programs were offered for youth on a regular basis. And under Walker
, it is of no import here that Whatley was unaware of the exi stence of a youth program center. It is, therefore, not dispositive that RCC did not have a sign indicating it was a youth program center, or that Whatley did not realize that RCC regularly pr ovided services and programs to young peopl e; an objective observer could dis cern that the activ itie s occurring at RCC qualified it as a youth progra m center by observing children entering and exiting the building on a regular basis or by contacting RCC to determine whether it offered pr ograms to young people on a regular b a sis. The statute is not vague as applied to these facts.

II

Whatley contends that his C lass A felony conviction is not supported by sufficient ev idence. Specifically, Whatley argues that because the State failed to prove that RCC qualifies as a youth program center under Indiana C ode section 35

- 41

- 1

- 29
, his se n tence should be reduced
to a C lass C felony.

Relying on principles of zoning law, the Court of Appeals held that the principal chara cter and use of a structure “is not changed by some ancillary or accessory use.” Whatley
, 906 N.E.2d at 262. Applying these principles to RCC, the Court of Appeals found it significant that

ev idence at trial revealed that all of the youth program services and events were esse n tially faith
based. Thus, it held that RCC‟s principal identity or purpose was as a church; it was not co nverted into a youth program center by reason of its inc i dental and auxiliary faith

- based activities for young people.7

We disa gree with our colleagues and find that neither the religious content of the pr ograms offer ed by RCC nor the other uses of the buil d ing are relevant to whether RCC meets the statutory definition of a “youth program center.” The statute neither explicitly nor implicitly places any limitation on the content of the programs o f fered or the purposes for whic h children are present. T he only relevant characteristic of the programs and services offered by RCC were whether they were programs provided on a regular basis for persons less than eig h teen years of

age.

The evidence produced at trial showed that RCC regularly held the following youth pr o grams:

(1) “Amani (sic) church services” several Sundays out of the month, targeted for young people age 5

- 11, to “teach them the purpose of worship and why we worship the way we do”;
(2) “Boys to Men” and “Girls to Women” programs which are mentoring pr o grams “so that the kids have positive role models”;
(3) A Girl Scout troop made up of girls who are members of the church and a few from the community, meeting twice a month;
(4) “Wednesday Bible Circle” for teens, youth and children broken into age appropriate classes “so that they might learn the Bible and the principles ther e in”;
(5) “Family Fun Night” every Friday from 6 p .m. to 9 p.m. where parents and children meet together at church to “get them to find positive ways to interact one with another. Give children opportunities to see how other kids react and interact with their parents. And give all of them positive role models”; and
(6) Monday night Teen Choir (ages 13

- 18) and W ednesday night Children's Choir (age 5

- 12).

( Tr. at 30

- 33.)

Whatley himself , “in the interest of candor, . . . concede[s] that the Robinson Community Church does offer activities for children[ and] [t]his was clearly esta b lished at trial and cannot reasonably be disputed.” (App ellant‟s Resp. in Opp ‟n to Transfer 5 .) In light of these facts, a8

jury could properly find that RCC was a “ youth program center ” because it provided a building or structure that on a regular basis offered recreational, social, or other programs or service s for persons less t han 18 years of age.

III

Because we find that the statute is constitutional as applied to Whatley and that his co nviction was supported by sufficient evidence, we turn to his final contention that his 35

- year se ntence is inappropriate in light of the n ature of the o f fense and his character. Pursuant to Ind iana Appellate Rule 7(B) , an appellate court “may revise a sentence auth o rized by statute if, after due

co nsideration of the trial court‟ s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offend er.” The defendant bears the burden of persuading us that his sentence meets the inappropriateness standard of review. A nglemyer v. State
, 868 N.E.2d 482, 494 (Ind . 2007), clarified on reh‟g
, 875 N.E.2d 218

. “[R]egarding the nature of the offense, the advisory sentence is the star t ing point the Legislature has selected as an appropriate sentence for the crime committed.” Id. In this case, “[a] person who commits a Class A felony shall be imprisoned for a fixed term of between twenty (20) and fifty (50) years, with the a d visory sentence being thirty (30) years.” I.C. § 35

- 50

- 2

- 4.

Regarding the nature of his offense, Whatley ar gues that he was at home when he was a rrested pursuant to an unrelated warrant, he surrendered without incident, and that he was found in possession of a quantity of cocaine only . 2459 grams above the statutory threshold of 3.0 grams of c o caine for a C lass A felony. Regarding his character, Whatley contends that the trial court noted only three adult convictions: one misdemeanor charge for possession of marijuana, a
C lass C felony co n viction for cocaine possession, and a revocation of probation.

The record indicates that at the time of Whatley‟s arrest, he w as in possession of a small plastic baggie in his pocket; the baggie contained sixteen smaller baggies “which contained a substance . . . [later confirmed] to be crack cocaine” totaling over three grams. (Tr. at 40

- 41, 85

- 86, 88

- 89, 92

- 93; State‟s Ex. 1, 5 .) Beyond this, Whatley‟s possession occurred within 1,000
feet of a statutorily protected area

– a youth program center. The trial court also found that9

Whatley had prior conviction s for possession of cocaine, a C lass C felony, and possession of m arijua na, a C lass A misdemeanor. In both ca s es he had received the opportunity for probation,
and in both cas es, his probation had been revoked and pre viously suspended sentences had been
ordered e x ecuted.

In addition to prior convictions, the record reveals that at the time of sentencing, Whatley faced pending charges in two sep arate cases. The first included two counts of dealing c o caine, a
C lass B felony, and two counts of p ossession of cocaine, one as a Class C felony and one as a
C lass D fel o ny. The se cond case included th ree counts of stalking, two as Class C felonies and
one as a C lass D felony, two counts of i nvasion of privacy, a C lass A misdemeanor, and two counts of criminal mischief, a C lass A misdemeanor. In light of the nature of Whatley‟s o f f ense and his character as reflected by his criminal history , we cannot say that a sentence five years in excess of the advisory term of 30 years is inappropriate

.

Conclusion

The opinion of the Court of Appeals is vacated. Whatley‟s conviction and senten ce is a ffirmed.

Shepard, C.J., and Dickson, J., concur.

Boehm, J., dissents with separate op inion in which Rucker, J., concurs

.1

Boehm, Justice, dissenting.
I respectfully dissent. Whatley was convicted of possession of 3.24 grams of cocaine. The penal ty for this crime was enhanced from a C felony carrying a maximum sentence of eight years to an A felony with a maximum penalty of fifty years due to the proximity of Whatley‟s home to Robinson Community Church. The statute here provides for this dramatic enhancement
of a se n tence if the possession occurs: (A) on a school bus; or (B) in, on, or within one thousand (1,000) feet of: (i) school property; (ii) a public park; (iii) a family housing complex; or (iv) a youth program center. Ind. Code § 35

- 48

- 4

- 6 . Notably, this short list does not include “church,” “place of worship” or other terms that might much more plainly include Robinson Community Church. Nor is there anything in this record indicating that the exterior of the Church revealed the nature or regular i ty of its youth programs. I agree with the majority that the statutory definition of “youth program center” as a structure “that on a regular basis provides . . . programs or services” for people under age eighteen turns only on the activities “pr ovided” by the structure. I.C. § 35

- 41

- 1

- 29. But in my view that definition must be confined to comply with basic principles of due process of law. Due process requires that a criminal statute give everyone reasonable notice of what is prohibited.
Heal thscript, Inc. v. State , 770 N.E.2d 810, 813 (Ind. 2002). It also requires notice of the consequences of violation so the facts warranting the enhanced penalty at issue here are equally subject to the requirement of fair notice. United States v. Batcheld er , 4 42 U

. S

. 11 4 , 123 (1979); Coleman v. Ryan , 196 F.3d 793, 797 (7th Cir. 1999) (“„[T]he notice requirements of the Due Process Clause‟ require that a criminal law „clearly define the conduct prohibited‟ as well as „the punishment authorized.‟ A statute is constitutionally defective if it „do[es] not state with sufficient clarity the consequences of violating a given criminal statute.‟” (quoting Batchelder
, 422 U.S. at 123)); United States v. Samaniego

- Rodriguez , 32 F.3d 242, 244 (7th Cir. 1994)2

(“The fa ir notice requirement of the Due Process Clause is satisfied if the criminal statute clearly defines the conduct prohibited and the punishments authorized.”). I agree with the majority that there are many buildings that are easily identified as housing “re gular . . . programs or services” for persons under age eighteen. But the statute under the majority‟s rationale here looks only to the activities conducted in the structure to determine whether it is a youth program center, and not to whether a casual ob server could readily discern that the structure provides those services. This reasoning would make a youth program center of every residence housing a Cub Scout weekly meeting. Any other building could become a “youth program center” regardless of its ap pearance or signage. I would confine the term as the legislature has written it to those structures identifiable from their appearance as likely to house youth programs. These would include Boys and Girls Clubs, YMCAs, YWCAs, sports facilities
and the li ke, but not structures principally identified with other activities, at least without some external signage or other clear indication that the structure houses regularly conducted youth

programs. The State makes no claim that the structure here was readily identifiable as a youth program center. Rather, the State argues that this enhancement applies irrespective of the appearance of the structure. Because I disagree, I believe the Court of Appeals correctly held
that the enhanced sentence should be set as ide.

Rucker, J., concurs.