# FILED
October 28, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF C RIMINAL A PPEALS OF TENN ESSEE AT NA SHVILLE SEPTEMBER 1999 SESSION

STATE OF TENN ESSEE, * 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 RUNYO N, III PAUL G. SUMMERS 301 Main Street Attorney General & Repor ter Clarksville, TN 37040 KIM R. HELPER Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243 JOHN WESLEY CARNEY, JR. District Attorney General HELEN OWSLEY YOUNG Assistant District A

ttorney 204 Franklin Street , Suit e 200 Clarksville, TN 37040-3420

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIA MS, Judge-2- 

### OPINI ON The defendant, Derrick Jenkins, appeals a certif ied question of law. He pled guilty to tw

o sales of over 0.5 grams of Schedule II controlled substanc e, cocaine. The Montgomery C ounty Circuit Court

sentenced him to two concur rent 15 year sentences. The defendant asse rts that the Drug-Fr ee School Zone Act, by which the trial

court raised the classi

fication for the offenses from Class B to Class A felony offenses, is uncon stitutional. We disagree and AFFIRM the trial court’s judgment.

BACKGROUND The defendant was indicted by t he 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 o ne 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 occurri ng on a specific date in July 1997. The indictments alleged that all the offenses occu rred within 1,000 feet of a scho ol zone, as defined by the School Zone Act.
The defendant faces higher penalties and mand atory minimum sentences of incar ceration under the School Zo ne Act. His motion t o dismiss the twelve indictments asserted that the School Zone Act is unconstitu tional. The trial court denied the motion, and the defendant subseq uently pled guilty to two counts constituting Class A felonies under the statute. As par t of his plea agreement, the def endant r eserved a ppeal on a certifi ed questi on of law: Whether Tenn. Code Ann. § 39-17-432 is unconstituti onal as it: (a) is vag ue, ove rbroad a nd does n ot put a person of reasonable intelligence on notice as to how to measur e the distance between the offense locale and th e school property; (b) is violative of due process;-3- (c) is violative of the eq ual protection clause of the Four teenth Amendment of the United States Constitut ion; (d) is violative of Art

icle I Section 8 of the Tennessee Constitution; (e) is not a valid exercise of the police power; (f) is violative of Art

icle 1 Section 13 of the Tennessee Constitution. (g) is violative of the Eighth Amendment of the United States Constitution.

ANAL YSIS The pert inent pro visions of the Drug-Fr ee Schoo l 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 s chool fa cilities. The enha nced and mandato ry minimum sentences required by this section for drug offense s occurring in a Drug-Free School Zone are neces sary to serve as a deterrent to such unaccepta ble 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 shal l be punished one (1) class ification higher than is provi ded in § 39-17-417(b)-(I) for such violation. (c) Notwithstanding

any other provisi on of law or the sentence imposed by the court to the c ontrary, a defendant sentenced for a violation of subsection ( b) shall be required t o serve at least the minimum sentence for such defendant’s appr opriate range of sentence. Any sentence reduct ion credits such defendant may be elig ible for or earn sh all not op erate to permit or allow the release of such defendant prior t o full service of such minimum sentence. (d) Notwithstanding

the sentence imposed by the cour t, the provisions of title 40, c

hapter 35, part 5, relativ e to release eligibility st

atus and parole, shall not apply to or authorize the release of a defendant sentenced for a vi olation of subsection (b) prior to serv

ice of the entire minimum sentence for such defendant’s appropriate range of sent ence. (e) Nothing in the prov

isions 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 subs ection (b) prior to ser

vice of the entire minimum sentence for such defendant’ s appropriate sentence. Tenn. Code Ann. § 39-17-432.-4- The defendant appeals a certifie d 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 prov

ides 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 agre ement under Rule 11(e) but explicitly res

erved with the consent

of the state and of the court the right to appeal a certifie d question of law that is dispositive of the case. Certified Question The trial court’s order comprises (1) a statement of the c ertified 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 stat e on the dispositive natur e 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 Cour t agrees that the certified question regarding per se constitutionality of the School Zone Act is dispos itive. This appeal is properly before this Court.

Due process The defendant asserts that the Scho ol Zone Act is unconstitutionally vague and violativ

e of due process because it lack s an explicit mens rea requirement. The state respond s that the Act requires no mens rea component because it merely enhances p unishment for certain viol ations of the Tennessee Drug Control Act, see Tenn. Code Ann. § 39-17-401, et seq ., and is not a separat e offense s

tatute. Both the

defendant

’s and the state ’s brie

fs 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 (Te nn. Crim. App. 1987). In this case, we do not decide w hether the General Assembly intended the School Zone Act to be a separate offense or an enhancement of punishment for violations of1 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 determinati on is not within t he scope of the cer tifi ed question. Further, this court is without any factua l basis to m ake su ch dete rmina tions. -5- the Drug Co ntrol Act . Such det erminat ion is unn ecessary f or our ana lysis; we uphold the constitutionality of the School Zone Act.
Assuming arguendo that the s tate legislature intended the Act to be an enhancement statute, we concur with the state’s argument that such enhancement statutes do not requir e explicit mens rea lang uage. 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 viola

tion. Instead, by Tennessee st atute, a criminal statute lacking a specific mens rea impliedly requires at least a showing of recklessness for a valid convicti on. See Tenn. Code Ann. § 39-11-301(c). Therefore, even if the School Zone Act is read as an offense statut e, it is not constitutionally deficient in its lack of an ex plicit mens rea requir

ement but rather is presumed to require a showing of recklessness. 1
The defendant also argues that the “miscond uct” on behalf of the states’ agents violated his due process rights. Speci fically, he complains that the officers impermissibly l ured him into the school z one so that the resultant penalties would be gr

eater. As we interpre

t defendant’s certified question as attacking only the facial constitutionality of the School Zone Act and not its constitutionality as a pplied, we find that this i ssue falls outside the scope of appeal. Further, we note that without any factual r ecord, we, even if so i nclined, could not re

view thi s claim.2 The Fourteenth Amendment to the United Stat es Constitut

ion and both Ar

ticl e I, § 8 and Arti cle XI, § 8 of th e Tennessee Const itution pro vide f or equalprotect

ion under

the l aw. -6- The defendant also asserts that the Scho ol Zone Act violates due process because it is unconstitutionally vague. He argues that a person of reasonable intelligence could not det ermine how to measure the dis tance between the transaction locale and the sc hool property, should they wish to distingui sh a vi ol at io n of t he

Dr ug Co nt ro l A

ct fr om a v io lati on of

th e S ch oo l Zon e A

ct . We disagree with the defendant’ s conclusion. The statute puts a person on notice: If an offender commits certain viol ations of the Drug Control Act within 1,000 feet of the school or

of th e s ch oo l g ro un ds , t he of fe nd er fa ce s h ar

sh er pe na lt ie s. We conclude that the reasonable rea der would measure the enhanced penalty region from the perimeter of the grounds of a schoo l, consistent with the statute’s clear and unambiguous langua ge, and not from some central point within the property. We concede that the defendant correct ly states that a pedestri an, 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 fe et from a school’s property. Howev

er, that difficulty does not c onstitute a due process vi olation.
Equal Protection Clause The defendant asserts that the School Zo ne Act violates equal protection 2 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 i s outside the scope of this review. We do, howev er, respond to the defendant’s arg ument that the agents orchestrated the sal es and deliveries to oc cur “late at night, ear

lier in the morning or when school was closed for the year, and thus no children were present,” because that argu ment calls into question t he intent and purpose of the School Zone Act. These considerations are pertinent f or further analysis3 “A viol ation of this sect ion or a conspi racy to v iolat e this section where th e recipi ent or the int ended recipi ent of the con troll ed substance is un der eighte en (18) year s of age shall

be punished one (1)

classifi cation hi gher than prov ided in [preceding subsections of th e Drug Control Act].” -7- regarding the defendant’s eq ual protection claim. The rec ord contains no evidence regarding

the presence or absence of chil dren in relation to the ins tant drug transactions, but w e disagree with the defendant ’s suggestion that the statute should be, as a constitutional matter, enf orced only when children are actually attending sc

hool during the regular

school year. Childr

en frequent school grounds outside the traditional classroom hour s. 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. Acc ordingly, the instr

uments of transactions and subsequent use, such as needles and other paraphernalia, li kely to be left at the school grounds present haz ards and distractions to s tudents at all times. The General Assembly artic ulated its intent to prescr ibe harsher penalties for dr ug offenses in the vicinity of schools, deterring these “distractions and danger s . . . incident to the occurrence of drug activity.” Tenn. Code Ann. § 39-17-432(a).
Next, the defendant argues that the School Zone Act is imperm issibly redundant with other rest rictions against sal es to minors. See Tenn. Code Ann. § 39-17-417(k). 3 This argument is incorr ect. Unlike other restr

ictions, 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, wh en compared with the prior restrictions of the Drug Control Act, unconstitutionally redu ndant.
The defendant also argues that the School Zone Act is under-inclu sive to the extent that it does not addr ess playgrounds, park

s, or other areas outside school grounds frequented by children. This defect, the def endant argues, renders the statute viol ative of equal protection.Standards of constitutional l aw4 These proscriptions are st ated by the Eighth Amendment and apply to the st

ates 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 Consti tution

. -8- provide that legisl ation reasonably related to a legitimate goal, ev en legislation that falls short of addressing all sources of the proscri bed problem, passes constitutional muster. See United States v. Holl and , 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 Schoo l Zone Act is over-inclusive. He questions, for instance, the applicability of the School Zone Act to drug transactions consummated by adults in homes fa lling within the statutorily prescribed area. Therefore, he ar gues, the statute proscri bes behavior outside its goals. Again, how

ever, we conclude that

despite whatever inc

ongruence the defendant perceives, the statute is plainly rational ly related to the leg itimate governmental purpose. See id. Even in defendant’s proffered hyp othetical, the concerns motivating the School Free Zone Act remain, and any drug traffic within school zones, even by

adults within homes, pr esents the same dangers and distractions. The habiting of the general area by user s and dealers, the potential for violence and weapons, the threat of paraphernalia, and the daily proximity of children to the dealers ar e concerns reasonably and rationally addressed by the Act.
Cruel and unusual punishm ent The defendant further asserts that the Scho ol Zone Act violates constitutional proscri ptions against cruel and unusual punishment. 4 He argues that the Act allows for cr uel 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 disproporti onate. For argument, he compare s this sentence to-9- sentences for convictions of second degree murder, especia lly aggravate d kidnaping, and others.
We are not convinced by the defen dant’s complaint or argument. As a threshold matter, mandatory sentences for narcotics of fenses are not per se “cruel and unusual punishment.” State v. Hinsley , 627 S.W.2d 351, 355 (Tenn. 1982). As we revie

w sentences and proportion ality, our legisl ature receives substantial judicial deferenc e regarding its esta blishment of crimes and punishments, and, excepting capital offense appeals, challeng es against that body’s authority ar

e rarely successful. See State v. Harris , 844 S.W.2d 601, 602 (Tenn. 1982). On review, a finding of “gross dis proportionality” betw een the defendant’s offenses and his punishment is nec essary for further scruti ny; we do not find such disproportionality. See id. at 603.
The defendant also asserts that the Eig hth Amendment’s prohibition against cruel and unusual p unishment is violated becau se the “statute does not clearly address any

evils that were no

t already addressed.” Our previous discussion of the alleged r edundancy of the School Zone Act i n relation to the Drug Control Act dis penses with this chall enge.

The defendant next asserts that the s tatute imposes cruel and unusual punishment because the School Zone Ac t is overly broad in affecting others than those corrupting minors through narcotics offenses. We disagree. Again, the defendant construes the intent and purpo se of the School Zone Act too restrictively . The School Zone Act seeks to de ter transactions that impose the discussed risks in the defined areas and not merely to pun ish those selling to children. Those violator s selling to only adults within the defined pr emises nevertheless contribute to these risks.-10- 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 i f this argument fell withi n the defendant’s certified question of law, this c

ourt would be unable to rev iew this claim. The defendant presents no supporting facts or argumentation.

CONCLUSION We AFFIRM the trial court’s judg ment.

_______________________________ JOHN EVERETT W ILLIAMS, Judge

CONCUR:

____________________________ JOHN H. PEAY, Judge

____________________________ DAVID H. W ELLES, Judge