STATE OF TENNESSEE v. DOUGLAS E. LINVILLE
No. W2019-02180-SC-R11-CD
IN THE SUPREME COURT OF TENNESSEE
June 1, 2022
November 3, 2021 Session
Appeal by Permission from the Court of Criminal Appeals
Circuit Court for Hardin County
No. 18-CR-145 Charles C. McGinley, Judge
Tenn. R. App. P. 11 Appeal by Permission;
Judgment of the Court of Criminal Appeals Reversed in Part;
Remanded to the Circuit Court
JEFFREY S. BIVINS, J., delivered the opinion of the Court, in which ROGER A. PAGE, C.J., and SHARON G. LEE and HOLLY KIRBY, JJ., joined.
Kendall Stivers Jones (on appeal), Franklin, Tennessee; and Matthew C. Edwards (at trial), Bolivar, Tennessee, for the appellant, Douglas E. Linville.
Herbert H. Slatery III, Attorney General and Reporter; Andree Blumstein, Solicitor General; Katharine K. Decker, Senior Assistant Attorney General; Matthew F. Stowe, District Attorney General; and Vance W. Dennis and Jennifer Hedge, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
In this appeal, we must interpret statutory provisions that govern sentencing for certain drug offenses that occur within what are commonly known as drug-free zones. More than twenty-five years ago, our General Assembly took steps to provide students with a learning environment free from dangers associated with drug activity. See Act of May 26, 1995, ch. 515, 1995 Tenn. Pub. Acts 918-19 (“the 1995 Act“). To that end, the legislature delineated an area around elementary, middle and secondary schools—referred to as drug-free school zones—in which the commission of certain drug offenses would merit heightened criminal penalties. The penalties included: (1) the offense would be punished as if it were one classification higher than it ordinarily would be, and (2) the offender would be required to serve in full at least the minimum sentence within the appropriate range of punishment prior to release. Act of May 26, 1995, ch. 515, § 1, 1995 Tenn. Pub. Acts 918-19.
Ten years later, in 2005, the General Assembly amended the drug-free school zones statute to expand the list of protected places beyond schools to areas around a “preschool, child care agency, or public library, recreational center or park.” Act of May 19, 2005, ch. 295, § 2, 2005 Tenn. Pub. Acts 670 (“the 2005 Act“). The question presented in this appeal is whether the General Assembly intended for one, both, or neither of the original two penalty provisions to apply when the drug-free zone relates to the protected places added in 2005.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 4, 2018, law enforcement officers searched a Hardin County home pursuant to a warrant. There were five individuals in the home at the time, including Douglas E. Linville (“the Defendant“). The search yielded various controlled substances and drug paraphernalia. Trial testimony established that the home was located within 1,000 feet of the Savannah City Park.
At the conclusion of trial, the jury convicted the Defendant of five drug offenses. Three of the convictions were for possessing various controlled substances, with the intent to deliver, in a drug-free zone.3 See
For sentencing, the Defendant qualified as a Range III Persistent Offender. The methamphetamine and hydrocodone convictions in counts one and two, respectively, were Class C felonies.
Sentencing for the Xanax conviction in count three reflects some confusion. At the sentencing hearing, the parties mistakenly informed the trial court that the offense was a Class C felony. Thus, at the sentencing hearing, the trial court imposed the same twelve-year sentence for the Xanax conviction as for the methamphetamine and hydrocodone convictions. In fact, however, the Xanax offense was a Class D felony.
The judgments for all three convictions reflected that the offense occurred in a drug-free zone. Each of the judgments also identified a mandatory minimum sentence length associated with the offense, ten years for counts one and two, and eight years for count three.
On direct appeal, the Defendant attacked the sufficiency of the evidence and raised an evidentiary issue. In his brief before the Court of Criminal Appeals, the Defendant specifically noted that he was “not raising an issue as to sentencing in this appeal.” In two footnotes, however, the Defendant pointed out the confusion surrounding his sentence for the Xanax offense in count three. The Defendant suggested that the Court of Criminal Appeals remand to the trial court for correction of a clerical error.
The Court of Criminal Appeals affirmed the Defendant‘s convictions. State v. Linville, No. W2019-02180-CCA-R3-CD, 2021 WL 4476681 (Tenn. Crim. App. Mar. 12, 2021), perm. app. granted, (Tenn. Aug. 5, 2021). With respect to the clerical-error issue identified by the Defendant, the Court of Criminal Appeals agreed that “[t]he judgment form should be corrected to reflect that the Defendant was convicted of possessing a Schedule IV substance.” Id. at *5. However, citing Tennessee Code Annotated section 39-17-432(b)(1), the court also went on to state:
Second, the judgment form reflects that the Defendant was convicted of a Class D felony in count three, when he was punished one class higher by the trial court under the drug-free zone statute according to the transcript[.] See T[enn]. C[ode] A[nn]. § 39-17-432(b)(1) (2019) (“A violation of § 39-17-417” occurring “within one thousand feet (1,000‘) of the real property that comprises . . . a park shall be punished one (1) classification higher than is provided in § 39-17-417(b)–(i) for such violation“). Accordingly, the judgment form should be corrected to reflect that the Defendant was convicted of a Class C felony.
Id. (omission in original).5 The intermediate appellate court did not note the fact
The Defendant sought permission to appeal to this Court. With respect to sentencing, the Defendant identified the issue in his application as: “Whether the Court of Criminal Appeals erred in its statutory interpretation of Tennessee Code Annotated section 39-17-432(b) when it found that a defendant is subject to sentencing at one classification higher than is provided for in section 39-17-417(b)–(i) when the drug-free school zone is created by a park.” We granted the Defendant‘s application solely with respect to the sentencing issue, and the order granting permission to appeal recites the Defendant‘s statement of the issue nearly verbatim. In his brief before this Court, however, the Defendant complains of his sentence in two respects. The Defendant argues that because the drug-free zone in this case was related to a public park, his Xanax offense was not subject to the one-class enhancement ordered by the Court of Criminal Appeals. The Defendant also argues that because the drug-free zone was related to a public park, he was not subject to the requirement “to serve at least the minimum sentence for the defendant‘s appropriate range of sentence” prior to release.
Based on our review of the relevant statutory provisions, we hold that the Court of Criminal Appeals erred by concluding that the Defendant‘s Xanax conviction was subject to a one-class enhancement. We also hold that, with respect to the three offenses that were subject to the drug-free zone statute, the Defendant is required to serve in full at least the minimum sentence for the appropriate range prior to release, even though the drug-free zone related to a public park.
II. ANALYSIS
Pursuant to Tennessee Code Annotated section 39-17-417, it is a criminal offense to knowingly:
- Manufacture a controlled substance;
- Deliver a controlled substance;
- Sell a controlled substance; or
- Possess a controlled substance with intent to manufacture, deliver or sell the controlled substance.
A. The Drug-Free Zone Statute
As previously mentioned, the General Assembly enacted the predecessor of the drug-free zone statute that applies to the Defendant‘s offenses in 1995. With passage of the 1995 Act, the General Assembly announced its intent “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 sentence provision appeared at section 39-17-432(b). The 1995 Act provided that “[a] violation of [section] 39-17-417, or a conspiracy to violate such section, that occurs [in a Drug-Free School Zone] shall be punished one (1) classification higher than is provided in [section] 39-17-417(b)–(i) for such violation.”
The mandatory minimum sentencing provisions appeared at sections 39-17-432(c) to -432(e). Subsection (c) provided:
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.
Such was the state of Tennessee law for a decade. In 2005, however, the General Assembly amended the statute. Act of May 19, 2005, ch. 295, 2005 Tenn. Pub. Acts. 670-72. The driving force behind the 2005 Act was a desire to expand the drug-free school zone to include the area around a “preschool, child care agency, or public library, recreational center or park.” Act of May 19, 2005, ch. 295, § 2, 2005 Tenn. Pub. Acts. 670. As such, the 2005 Act amended subsection (a) of Tennessee Code
The only other changes associated with the 2005 Act—indeed, the most significant changes—occurred in subsection (b) of Tennessee Code Annotated section 39-17-432. Former subsection (b) was re-designated as (b)(1) and, consistent with the nomenclature change in subsection (a), amended simply to reflect that “[a] violation of [section] 39-17-417, or a conspiracy to violate the section, that occurs [in a drug-free zone] shall be punished one (1) classification higher than is provided in [section] 39-17-417(b)–(i) for such violation.”
A person convicted of violating this subsection (b) who is within the prohibited zone of a preschool, childcare center, public library, recreational center or park, shall not be subject to additional incarceration as a result of
this subsection (b) but shall be subject to the additional fines imposed by this section.
The 2005 Act made no changes whatsoever to the mandatory minimum sentencing provisions of the existing statute. See
B. Applicability of One-Class Enhancement
Having set forth the history and applicable provisions of the drug-free zone statute, we turn to the first issue raised by the Defendant. Consistent with his application for permission to appeal to this Court, the Defendant argues that the Court of Criminal Appeals erred when it ordered that the judgment for the Xanax conviction in count three be corrected to reflect the offense as a Class C felony rather than a Class D felony. Looking to section 39-17-432(b)(1), the Court of Criminal Appeals reasoned that because the offense was committed in a drug-free zone—within 1,000 feet of the Savannah City Park—it should have been punished one classification higher than was otherwise provided for in section 39-17-417. State v. Linville, 2021 WL 4476681, at *5 (citing
The Defendant argues—and the State agrees—that the reasoning of the Court of Criminal Appeals misinterprets the language of section 39-17-432(b). We agree with the parties. Subsection (b) generally provides that a violation of section 39-17-417 that occurred in a drug-free zone “shall be punished one (1) classification higher than is provided in [section] 39-17-417(b)–(i) for such violation.”
The plain language of section 39-17-432(b)(3) is controlling as to this issue. We have determined that the General Assembly, through section 39-17-432(b)(3), chose not to impose the one-class enhancement set forth in subsection (b)(1) for violations of section 39-17-417 that occur in a drug-free zone when that zone relates to “a preschool, childcare center, public library, recreational center or park.”
C. Applicability of Mandatory Minimum Sentencing
The Defendant next argues that because the drug-free zone was related to a public park, he was not subject to the requirement “to serve at least the minimum sentence for the defendant‘s appropriate range of sentence” prior to release.
In response, the State first argues that the Defendant has waived consideration of this issue. The State points out that the Defendant, in his application for permission to appeal to this Court, framed the issue as “[w]hether the Court of Criminal Appeals erred in its statutory interpretation of Tennessee Code Annotated section 39-17-432(b) when it found that a defendant is subject to sentencing at one classification higher than is provided for in section 39-17-417(b)–(i) when the drug-free school zone is created by a park.” Moreover, the substance of the Defendant‘s application asserts that the drug-free zone
statute “does not enhance an offense by one classification if the drug-free zone is created by a park,” with no mention of any challenge to mandatory minimum sentencing. Clearly, although the application specifically challenges classification enhancement, it does not address mandatory minimum sentencing. The State further points out that the Defendant, in his brief before the Court of Criminal Appeals, specifically stated that he was “not raising an issue as to sentencing in this appeal” other than the clerical error with respect to the Xanax conviction in count three. However, the judgments for counts one through three reflected mandatory minimum sentencing, and thus the Defendant was free to challenge it before the Court of Criminal Appeals.
The State makes a compelling point. We have stated that “issues are properly raised on appeal to this Court when they have been raised and preserved at trial and, when appropriate, in the intermediate appellate courts and when they have been presented in the manner prescribed by [Rule 27 of the Tennessee Rules of Appellate Procedure].” Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (footnote omitted). Similarly, we have recognized that because our scope of review on appeal is typically limited to the issues raised in the application for permission to appeal, “[a] party who fails to adequately raise an issue in a Rule 11 application waives the issue.” TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 887 (Tenn. 2019). However, we note that the Defendant alternatively has requested that this Court address the issue as plain error. See, e.g., State v. Minor, 546 S.W.3d 59, 65 (Tenn. 2018) (recognizing that the plain error doctrine “affords appellate courts discretion to review unpreserved errors and grant relief when fairness and justice demand“); see also Tenn. R. App. P. 36(b) (“When necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not . . . assigned as error on appeal.“). Although we agree with the State that the Defendant‘s application for permission to appeal does not raise mandatory minimum sentencing sufficiently as an issue, we exercise our discretion to address the substance of the Defendant‘s argument under the plain error doctrine.
Under the plain error doctrine, the court must consider whether:
(1) the record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused was adversely affected; (4) the issue was
not waived for tactical reasons; and (5) consideration of the error is necessary to do substantial justice.
State v. Vance, 596 S.W.3d 229, 254 (Tenn. 2020) (quoting Minor, 546 S.W.3d at 67). The defendant bears the burden of establishing all of these elements. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007). Consequently, the court need not consider all of the elements when it is clear from the record that at least one them cannot be satisfied. Id. Furthermore, to merit relief, “the plain error must be of such a great magnitude that it probably changed the outcome of the trial.” State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014) (quoting State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994)). Whether the elements of the plain error doctrine have been satisfied is a question of law. State v. Knowles, 470 S.W.3d 416, 423 (Tenn. 2015).
In this appeal, we need consider only the element of whether a clear and unequivocal rule of law was breached. That question presents an issue of statutory construction in this case. Statutory construction entails questions of law. State v. Welch, 595 S.W.3d 615, 621 (Tenn. 2020); State v. Smith, 436 S.W.3d 751, 761–62 (Tenn. 2014). The fundamental role of this Court when construing a statute is “to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute‘s coverage beyond its intended scope.” Welch, 595 S.W.3d at 621 (quoting State v. Howard, 504 S.W.3d 260, 269 (Tenn. 2016)). To that end, “we first look to the plain language of the statute to determine the legislature‘s intent.” Frazier v. State, 495 S.W.3d 246, 248 (Tenn. 2016). We give the statute‘s words their natural and ordinary meaning. Id. (citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010)). “When those words are clear and unambiguous, we need not consider other sources of information but must simply enforce the statute as written.” Id. at 249. “If the language is ambiguous, however, we look to the ‘broader statutory scheme, the history of the legislation, or other sources to discern its meaning.‘” Smith, 436 S.W.3d at 762 (quoting State v. Casper, 297 S.W.3d 676, 683 (Tenn. 2009)).
The Defendant‘s argument that he is not subject to mandatory minimum sentencing because the drug-free zone in his case was related to a public park focuses primarily on the language of section 39-17-432(b)(3):
A person convicted of violating this subsection (b), who is within the prohibited zone of a preschool, childcare center, public library, recreational center or park shall not be subject to additional incarceration as a result of this subsection (b) but shall be subject to the additional fines imposed by this section.
Construing “additional incarceration” in subsection (b)(3) as he does to include both one-class enhancement and mandatory minimum sentencing, the Defendant nonetheless recognizes that the drug-free zone statute addresses enhancement and mandatory minimum sentencing in different subsections. As a result, the Defendant attempts to bolster his construction of “additional incarceration” in subsection (b)(3) by arguing that the language of subsection (c)—particularly the use of “[n]otwithstanding any other law . . . a defendant sentenced for a violation of subsection (b)
sentence for the defendant‘s appropriate range of sentence,”
For its part, the State contends that the Defendant‘s argument neglects the complete statutory language of the key provision: “shall not be subject to additional incarceration as a result of this subsection (b).”
We conclude that the plain reading of the statutory language reflects that the General Assembly did not alter mandatory minimum sentencing for offenses committed in a drug-free zone by virtue of the 2005 Act. From its inception, the drug-free zone statute announced an intent to require both “enhanced and mandatory minimum sentences.”
Having determined that section 39-17-432(b)(3) does not exempt the Defendant from mandatory minimum sentencing, we conclude that the Defendant is not entitled to plain error relief because he has not demonstrated that a clear and unequivocal rule of law was breached.11 See, e.g., Vance, 596 S.W.3d at 254 (identifying the elements the defendant must prove to establish plain error). Accordingly, we affirm the judgments of the trial court that require mandatory minimum sentencing for counts one through three based on the drug-free zone statute.
D. Correction of Clerical Error
Like the Court of Criminal Appeals, we note that the judgment for the Defendant‘s Xanax conviction in count three contains a clerical error. The judgment identifies the “Conviction Offense Name” as “Poss. of Schedule III w/ Intent to Del in a Drug-Free Zone.” Xanax, however, is a Schedule IV controlled substance.
III. CONCLUSION
For the foregoing reasons, we hold that the Court of Criminal Appeals erred by concluding that the Defendant‘s conviction in count three was subject to a one-class enhancement due to application of the drug-free zone statute. We further hold that the trial court correctly ordered mandatory minimum sentencing for the offenses in counts one through three, all of which were subject to the drug-free zone statute. Accordingly, we reverse the decision of the Court of Criminal Appeals in part, affirm the judgments of the trial court, and remand for correction of the clerical error in the judgment for count three in accordance with this opinion.
Because the Defendant appears to be indigent, the costs of this appeal are taxed to the State.
JEFFREY S. BIVINS, JUSTICE