State v. HolmesState v. Holmes
Defendant, Jeffery Mark Holmes, was charged with distribution of cocaine, a Schedule II controlled dangerous substance, in a drug free zone in violation of
FACTS
Because there was no trial, the record does not provide factual information about the offense. At the time of the plea, however, the prosecutor and defense attorney stipulated that a factual basis existed for the charge and the trial court accepted the stipulation. The bill of information indicates that the offense took place in Tammany Trace, a recreational park in St. Tammany Parish.
In his sole assignment of error, defendant contends that the statute under which he was charged,
The State argues that the language of the statute is not vague and that the legislature clearly intended to include parks and recreational areas not “identified with or adjacent to schools.” In support of its argument, the State notes that the statute does not limit the definition of school property to school playgrounds; rather, it includes “any building or area owned by the state or a political subdivision that is used as a playground or recreational facility” and “all parks and recreational areas administered by the office of state parks.”
Initially, we note that in his motion to quash, defendant does not specifically state that he is challenging the constitutionality of the statute. Rather, he contends that the bill of information fails to charge him with an offense punishable under a valid statute. His specific argument is that Tammany Trace, while a recreation park area, is clearly not property used for school purposes by any school.
Generally, in order to preserve an alleged error for consideration on appeal, the Louisiana Code of Criminal Procedure requires that an objection be made to the irregularity at the time of its occurrence.
A. (1) Any person who violates a felony provision of
R.S. 40:966 throughR.S. 40:970 of the Uniform Controlled Dangerous Substances Law while on any property used for school purposes by any school, within one thousand feet of any such property, or while on a school bus, shall, upon conviction, be punished in accordance with Subsection E.(2) Any person who violates a felony provision of
R.S. 40:966(A) ,967(A) ,968(A) ,969(A) , or970(A) while on property used as a drug treatment facility or within one thousand feet of any such property, when included within an area marked as a drug free zone pursuant toR.S. 40:1058.10 shall, upon conviction, be punished in accordance with Subsection E.(3)(a) Any person who violates a felony provision of
R.S. 40:966 throughR.S. 40:970 of the Uniform Controlled Dangerous Substances Law while on any religious building property, public housing authority property, or within one thousand feet of any such property, if the area is posted as a drug-free zone, shall, upon conviction, be punished in accordance with Subsection E of this Section.(b) In order for the provisions of this Section to apply to religious buildings or to public housing authority property, the building must be posted as a drug-free zone as provided herein. The design and posting of the signs shall be at the discretion of the entity that owns or has authority over the religious building or public housing authority property. In order to post the area as a drug-free zone, the signs shall be located in a visible manner on or near each religious building or public housing authority property indicating that such area is a drug-free zone, that such zone extends for a distance of one thousand feet, and
that a felony violation of the Uniform Controlled Dangerous Substances Law will subject the offender to severe penalties under law. B. Lack of knowledge that the prohibited act occurred on or within one thousand feet of school or drug treatment facility property shall not be a defense.
C. For purposes of this Section:
(1) “School” means any public or private elementary, secondary, vocational-technical school, or any public or private college or university in Louisiana.
(2) “School property” means all property used for school purposes, including but not limited to school playgrounds, as well as any building or area owned by the state or by a political subdivision and used or operated as a playground or recreational facility and all parks and recreational areas administered by the office of state parks.
(3) “Drug treatment facility” means all property used for diagnostic, treatment, and rehabilitative services to patients and their families with problems related to alcohol, drug, or substance abuse.
(4) “Religious building property” means property on which is located any church, synagogue, mosque, or other building, structure, or place used for religious worship or other religious purpose.
(5) “Public housing authority property” means all property owned or operated by a public housing authority or agency created by state law or by any ordinance enacted by a local governing authority.
D. A violation of this Section within one thousand feet of school property, a drug treatment facility, religious building property, or public housing authority property shall not include an act which occurs entirely within a private residence wherein no person seventeen years of age or under was present.
Statutes are presumed to be valid and must be upheld as constitutional whenever possible. A statute is unconstitutionally vague if a person of ordinary intelligence is not capable of discerning it‘s meaning and conforming his conduct thereto. A penal statute must give adequate notice that certain contemplated conduct is proscribed and punishable by law and must provide adequate standards for those charged with determining the guilt or innocence of an accused. In interpreting criminal statutes,
In State v. Brown, 94-1290, p. 5 (La.1/17/95), 648 So.2d 872, 875, the defendants argued that
The challenged statute is clearly and readily understandable, gives adequate notice of what conduct is proscribed and provides adequate standards for determining guilt or innocence of the accused. Any reasonable person can understand the statute proscribes possessing and trafficking controlled dangerous substances while within 1,000 feet of school property ....
State v. Brown, 94-1290 at pp. 5-6, 648 So.2d at 876 (quoting State v. Brown, 606 So.2d 586, 588 (La.App. 5th Cir. 1992), writ denied, 92-2945 (La.1/28/94), 630 So.2d 786).
In regard to the purpose of the statute, the Louisiana Supreme Court stated, in State v. Brown, 94-1290 at pp. 6-7, 648 So.2d at 876, that “[i]t is clear that the state‘s objective is to protect children from the dangers of drugs by creating a `drug free zone’ in areas where children frequent.” See also State v. Williams, 98-0952, p. 3 (La.App. 1st Cir.2/19/99), 729 So.2d 1080, 1081.
In State v. Magee, 2000-2816 (La.App. 1st Cir. 10/10/01), 809 So.2d 452, the defendant argued on appeal that the State failed to prove that the park buildings near where he allegedly sold cocaine met the legal definition of “drug free zones” as provided in
A review of the wording of
When the language of the statute is read in conjunction with a review of the history of the amendments to the statute, it is clear that the legislature intended to encompass areas such as public parks and recreational areas that are not within school boundaries. We recognize that the legislature could have drafted the statute more artfully by using a separate subsection to address public playgrounds, parks, and recreational facilities and areas, as it did with drug treatment facilities, religious building property, and public housing authority property. Nevertheless, we conclude that the statute is not vague. It is sufficiently clear and unambiguous to inform a person that violators are exposed to enhanced penalties when they engage in prohibited conduct involving controlled dangerous substances in parks or recreational areas. Accordingly, the trial court did not err in denying the motion to quash.
ERROR PATENT
We note the existence of a patent sentencing error.
CONVICTION AND SENTENCE AFFIRMED.