### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE September 7, 2000 S ession
STATE OF TENNESSEE v. KENYETT A FIELDS
Appeal By Permissio

n from the Court o

f 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 defend ant’s co nviction of the Class C felony of facilitationof an illegal drug transaction withi

n 200 yards of a sc

hool overcomes the

presumption in favor of alternative se

ntencing so as to jus

tif y a se ntence of confinement. The trial court and the Courtof Criminal Appea

ls found confineme

nt necessary to a

void depreciating the

seriousness

of the offense. We conclude that the evidence presented is insufficient to overcome t he presump tion of alternative sentencing. Therefore, we reverse the judgment of the Court o f 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

W ILLIAM M. B ARKER , J., delivered the opinion of the court, in w hich E. R ILEY ANDERSON , C.J., A DOLPHO A. B IRCH , J R ., and J ANICE M. H OLDER , JJ., joined. F RANK F

. D ROW OTA , III, J., not participating. Greg W. Eichelma

n, Morristown, Ten

nessee, for the a

ppellant, Kenyet

ta Fields.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Ma

rk E. Davidson, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee.1 The Drug-Free School Zone Act enhances c

riminal pena

lties for drug of

fe nses viol

ating Tennes see Code Annotated sec

tion 39-17-417 t

hat occur wit

hin one thousa

nd feet of s chool propert y. -2- 

### OPINION

OnNovember

12, 1996, defendant Kenyetta Fields participated in the sale of cr ack cocaine to undercover TBI agent Mike Hannon. At 5:12 p.m., Hannon and a c onfidential informant parked their car be hind a Hyundai E

xcel containing F

ields and his passe

nger, James Henr

y Davis. Da

vis 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 a nd got back into the front passenger seat. Hannon testified that he obse rved 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 t

o get change . Davis and Fields entered into an even more ex tensive 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 th

e 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 nea

r a school. Spe cif ica lly, he testified that the transaction occurred near “George Clem” school, which wa s, “as the
crow flies, less than 200 yards” from where the transaction occurred. However, agent Ward did not elaborate on whether the scho

ol is a preschool, eleme

ntary, middl

e, or high school

, vocational scho

ol,
or an alternative learning facility. Nor does the record indicate whether, at 5:12 p.m., the school was open, whether it was vis

ible from the location of

the drug transa

ction, or whether

children were w

ithin the vicinity. And

finally, the

re is no evidence

that t he area surrou

nding the school w

as frequently sub jec t to dru g-re lat ed ac tiv ity.

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, t he State had previously filed with the court a notice of intentto seek an

increas ed 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 no t use the Act t o “sentence the defendant in a higher class of fe lony 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.

Inaddition, although t

he trial jud ge found that Fields was entitled to the presumption of alternative sentencing, see Tenn. Code Ann. § 40-35-102 (1997), he nevertheless determined that the2 Fields’s prio r crimina l h istory i nc ludes: t

wo convictions

of unlawfull

y carrying or

possessi ng a weapon, and two convictions of drivi ng without a license.

3 The Court als o found that the $50,000 fine exceeded the maximum allowable fine for Class C fe lonies as set forth in Tennessee Code Annota ted sect ion 40-35-111(b) (3) (1997). Thus, the Cour t 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).
-3- presumption had been overcome and that confinement was a more appropriat e sentence. His ration

ale was based on the prior recor

d and the circumst

ances of this off

ense, the fact th

at it involved crack cocaine, the need to deter, and the fact that the d efendant has a h istory according

to him of use of crack cocaine, or the use of cocai ne at le ast, [and] the fa

ct that his employment record doesn’t appear to be good from this record. Consequently, Fields, a Range I of fender convicte

d of a Class C

felony, was subject to a sentencing range of three to six years, but, applying the enhancement factors, the trial court sente

nced him to

four years and six months in the Te nnessee De partment of Correction. He was also fined $50,000 as recommended by the jury.

The Courtof Criminal Appea ls affirmed the e

nhancement of Fie

lds’s sentence ba

sed on his pre-sentence report listing his pr evious misdemeano

r convictions. 2 However, the court rejected the
use of the Drug-Free School Zone Act as an en hance ment 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 whichmay 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.” Relyi ng on the Tennesse

e legislature’s d

esire to curtail drug-related offenses within a school zone as evidenced by the Dr ug-Free School Zone Act, the court determined that Fields’s activity was “especially reprehensible, ” th ereby warrant ing total incarce

ration. From this determination, Kenyetta Fields requested, and wegranted, 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 rev i ew 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 given4 The A ct states, in pertin ent part, that
(a) [i]t

is the intent of this sect ion to create Drug-Free School Zon es fo r th e purpose of providing a

ll st udent s in this state an environment in which they can learn without the dist ractions and dangers t

hat are i ncident t o the occurre

nce of drug activity in or around s chool faci liti es. The enhanc ed and man datory minimum sentences required by this s ection 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 violati

on of § 39-17-417, or a conspiracy to violat e such sect

ion, that occurs on the grou nds or fac ilities of any sch ool or w ithin one thousand fe et (1,000' ) of the real property t

hat comprise s a public

or privat

e elementary school, middl e school

or secondary sc

hool shall

be punished one ( 1) class ificat ion higher than is provided in § 39-17-417(b) -(i) f or such viol

ation.
(c) Notwithst

anding any other provi sion of law or the sentence imposed by the cou rt to the contra ry, a defen dant sente nced fo r a vio lation of s ubsection ( 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 reduct ion credits s

uch defend ant may be eligible for or earn sh all not ope rate to permit or al low the rel

ease of such defendant

prior to full ser

vice of such minimum sentence.

-4- 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 A nn. § 40-3 5- 401(d)(1997)).

Indetermining an appropriate sentence, the appellate court must consider the following: (1) anyevidence 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 b y 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 con cerning 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 c andidat e for alternative sentencing.” Te nn. Code Ann. § 40-3 5-102(6). Howev er, this presu

mp tion 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 circum stance 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; moreov

er, the State cite

s 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.”-5-

To invok e 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 onl

y of facilitation o

f 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 rec ord t hat 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 ne

cessary to invoke the School Zo

ne Act, he would not have been given proper notice that he was being charged under this en hance ment statute. Cf. State v. Hudson , 562 S.W.2d 416, 419 (Tenn. 1978) (holding that Tennes see C ode 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 punishmentand “the form of the indictment . . . should have been in compliance with the construction of [section] 30-4914.”)

Inthe alternative, a defendant is presumed to be a favorable candida te for alter

native sentencing if, under Ten

ne ssee 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 crite

ria of section 40-35-102(5). Therefore, to be eligible for alternative sentencing, the defendant must not have com mitted the “m ost severe offense,” nor have a criminal history evincing either “a clear disregard for the laws and morals of society,” or “fa

ilure at past eff

orts 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 in

dicate any faile

d 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.” Guid

ance as to what c

onstitutes evidenc

e 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 histor

y of criminal cond

uct; (B) Confinement

is necessary to avoid depreciating t he s eriousness of the offense or confinement

is especially suite

d to provide an ef

fective deterr

ence toothers likely to commit similar offenses; or (C) Measures less re

strictive than con

finement have fr

equently or rece

ntly been applied unsuccessfully to

the defendant.

Inthis case, neither

the trial court nor the Court of Criminal Appeals discussed whether subsections -103(1)(A) and (C) apply to deny Fields the pres umption of alternative sentencing. Accordingly, after conducting our own de novo review of the record, we conclude that Fields’s criminal record does not-6-

indicate a “long history” of crimina l conduct, and is therefore insufficient to support a sentence of incarceration

under Tennessee Code Annotated section 40-35-103(1)(A). Moreover, t here is no evidence that the defenda

nt lacks the potent

ial for rehabili

tatio n, 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 inthis case is whether the proximity of the drug transac

tion to a school, standing alone, warrant

s a sentence of total confinement under section 40-35-103(1)(B).

The trial court, apply

ing both prongs of su

bsection (B), con

cluded that “con

finement is necessary inorder to avoid depreciating the seriousness of the offense . . . [and because] the need to deter . . . is import ant 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, i

t determined that t

he record did not

su pport incarcer ation based on the need to deter.
First, we reverse the de c ision 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 excessiv e or exaggerated

d egr ee,’ 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 o f 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 fromthe location of the

drug transaction

. Simila r ly, 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. Contrar

y to the State’s argument, the mere existence of the Drug-Free Schoo

l Zone Act, withoutmore, cannot ele

vatethe 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 dec

ision to incarcer

ate a defendan

t based on a need f

or 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 s tate as a whole, and (2) incarceration of the defendant may rationally ser

ve as a deterre

nt to others similarl

y situated and like

ly to commit similar crime

s.
Id. at 10 . We then su

ggested 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:5 Because no evidence has been presented indicat ing a need to det

er, we need not

decide whether

incarcer ation of the defenda nt will rationally serve as a deterre nt to others likely to com mit similar crimes.
-7- (1) Whether other inciden ts of the charged offense are increasingly present in the community, jurisdic

tion, or in the state

as a whole; (2) [w]hether the d

efendant’s cri

me was the result o

f intentional,

knowing, or reck

less conduct or was otherwi se m otivated by a desire to profit or gain from the criminal behavior; (3) [w]hether the defendant’s crime and co nvic tion have receiv

ed substantial publ

icity beyond that norma

lly expected in the

typical case; (4) [w]hether

th e defendant was

a member of a cr

iminal enterprise

, or substantially encouraged or a

ssisted others in ac

hieving the crimina

l objective; (5) [w]hether the defendant haspreviously engag ed in criminal con

duct of the same typ e as the offense in question, irrespective of whether such conduct resul ted i n previous arrest

s 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 u pon an y 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 jud ge: “We have a terrific problem of crack cocaine here in Gr eene County. The docket reflects it when you submit a copy of the docket for proof inthe case. It’s just a significant problem in this community.” The trial court’ s observation and general refer

ence tothe 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 pr oof of the need to deter similar crimes in the “community, ju ris di ction, 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 dete

rrence 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 dete rr able crime, whic

h this Court sought to eliminate in Hooper

. CONCLUSION

For the foregoing reasons, we h old that the recor d lacks any evide

nce indicating tha

t this offense was espe cially rep rehensible or offensive. We conclude that the testimony by the State’s witness as to the close proxim ity 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 a lternative-8-

sentencing. This Court fi n ds the evidence in the record insufficient to justify a sentence of incarcerat ion base d 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 rever se the judgmentof the Court of Criminal Appeals denying alternative sen tencing to the def

endant, 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