Hardy v. StateHardy v. State
ON RETURN TO REMAND
This cause was remanded with instructions that the trial court determine the applicability of the enhancement provision of the one-mile “school yard” statute previously found in
Since it is clear that Hardy was properly sentenced under
We now address Hardy‘s remaining two arguments.
I
Hardy argues that
A
Hardy first alleges that
“Because the statute does not proscribe activities that are legally protected and does not involve any legally cognizable ‘suspect’ class, ‘the classification must be upheld if “any state of facts rationally justifying it is demonstrated to or perceived by the court.” ’ United States v. Holland, 810 F.2d 1215, 1219 (D.C. Cir.), cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854 (1987). The legislature of Alabama ‘wanted to lessen the risk that drugs would be readily available to school children. It is surely rational to achieve that goal by increasing penalties for those who sell drugs near schools.’ United States v. Agilar, 779 F.2d 123, 125 (2d Cir. 1985), cert. denied, 475 U.S. 1068, 106 S.Ct. 1385, 89 L.Ed.2d 609 (1986). The enhanced punishment provision of [
§ 13A-12-250 ], providing for an additional penalty of five years’ imprisonment, with no probation, for the unlawful sale of a controlled substance ‘if the situs of such unlawful sale was on the campus or within a one-mile radius of the campus boundaries of any public or private school, college, university, or other educational institution in this state’ is rationally related to the purposes of the statute. Such a ‘schoolyard’ statute does not violate principles of equal protection. Holland, 810 F.2d at 1219, and cases cited therein.”
As part of his equal protection argument, Hardy maintains that the statute does not treat similarly situated persons in a like manner because a defendant who sells a controlled substance beyond the protected schoolyard area, even one who sells to minors,1 is not subjected to an enhanced punishment while a defendant who sells a controlled substance within the protected schoolyard area is subjected to enhanced punishment. This argument is obviously flawed.
“The general rule is that ‘[e]qual protection of the laws is not denied by a statute prescribing the punishment to be inflicted on a person convicted of crime, unless it prescribes different punishments for the same acts committed under the same circumstances by persons in like situations.’ 16A C.J.S. Constitutional Law, Section 564. ‘[T]he legislature may, without violating the equal protection clause, establish different punishments . . . or it may provide a special punishment for a special class of offenders.’ Section 564.”
State v. Spurlock, 393 So.2d 1052, 1057 (Ala.Cr.App. 1981). It is clearly permissible “for a state to impose a more severe penalty for a particular type of crime than the penalty which is imposed with respect to the general category of crimes to which the special crime is related or of which it is a subcategory.” State v. Clark, 632 P.2d 841, 843 (Utah 1981).
There is no equal protection violation in the fact that the legislature has chosen to punish the subclass of persons who sell drugs within the protected schoolyard area more severely than the general class of drug traffickers.
“All defendants state-wide who distribute a controlled substance [within the specified distance] of a public school are governed by this statute and susceptible to its enhanced penalties. Defendant cannot argue that he is treated any differently than any other similarly situated individual who deals drugs within the proscribed location.”
State v. Moore, 782 P.2d 497, 503 (Utah 1989) (addressing a similar equal protection argument advanced against Utah‘s schoolyard enhancement statute). Cf. State v. Brown, 227 N.J. Super. 429, 436, 547 A.2d 743, 747 (1988) (finding no merit to defendant‘s claim that the New Jersey statute creating a separate offense with harsher penalties for schoolyard drug sales violated
B
Hardy‘s argument that
The Double Jeopardy Clause of the Fifth Amendment protects against multiple trials for the same offense and “against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).
“In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy — protection against cumulative punishments — is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, United States v. Wiltberger, 5 Wheat. 76, 93, 5 L.Ed. 37 (1820), the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent, see Missouri v. Hunter, 459 U.S. 359, 366-368, 103 S.Ct. 673, 678-679, 74 L.Ed.2d 535 (1983).”
Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2540-41, 81 L.Ed.2d 425 (1984) (footnote omitted). In reviewing a sentence which is alleged to be impermissibly multiple, a court must “determin[e] what punishments the Legislative Branch has authorized.” Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980).
This case does not involve multiple trials for the same offense. Nor does it concern the situation where a defendant was charged with more than one offense arising out of the same transaction, convicted of those offenses, and given separate sentences for each offense, triggering an analysis under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Hardy was convicted on a plea of guilty of one offense, the sale of a controlled substance. For this offense, he was sentenced to seven years’ imprisonment. Of this sentence, two years’ imprisonment, for which probation was granted, was imposed pursuant to §§
Section
Various sentencing enhancement statutes, most notably habitual offender or recidivist statutes, “have been sustained in [the United States Supreme] Court on several occasions against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities.” Spencer v. Texas, 385 U.S. 554, 560, 87 S.Ct. 648, 651, 17 L.Ed.2d 606 (1967). See also United States ex rel. Robinson v. Chrans, 660 F. Supp. 241, 245
“The sentence as a . . . habitual criminal is not to be viewed as either a new jeopardy or additional penalty for earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.”
Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948) (emphasis added). Accord United States v. Thomas, 895 F.2d 1198, 1201 (8th Cir. 1990) (reviewing sentence imposed under recidivist portions of Federal Sentencing Guidelines); Johnson v. State, 398 So.2d 393, 399 (Ala.Cr.App. 1981) (Alabama habitual offender statute does not violate double jeopardy principles).
Section
Contrary to his assertions, Hardy was not punished twice for the same offense. Section
II
Hardy contends that the State must allege a violation of
The judgment of the circuit court is affirmed.
OPINION EXTENDED;
AFFIRMED.
All Judges concur.