Session October 9, 2014.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Affirmed in Part and Reversed in Part; Judgments of the Circuit Court Reinstated. Appeal by Permission from the Court of Criminal Appeals Circuit Court for Montgomery County. Nos. 41100550, 41101052, 41200440, & 412200479. John H. Gasaway, III, Judge.
Robert E. Cooper, Jr., Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; Rachel E. Willis, Senior Counsel; Michelle Consiglio-Young, Assistant Attorney General; John Wesley Carney, Jr., District Attorney General; and Kimberly Lund, Assistant District Attorney General, for the appellant, State of Tennessee.
Roger E. Nell, District Public Defender, and Charles S. Bloodworth, Sr., Assistant Public Defender, Clarksville, Tennessee, for the appellee, Shanice L. Dycus.
JEFFREY S. BIVINS, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and CORNELIA A. CLARK, GARY R. WADE, and HOLLY KIRBY, JJ., joined.
JEFFREY S. BIVINS, JUSTICE
We granted review in this case to determine whether the mandatory minimum service requirement of Tennessee Code Annotated section 39-17-432(c) (2010) (the " Drug-Free School Zone Act" ) renders offenses under that act ineligible for judicial diversion. After a thorough review of the record and the applicable law, we hold that the mandatory minimum service requirement of the Drug-Free School Zone Act does not render offenses under that act ineligible for judicial diversion. Although the trial court failed to adequately address the appropriate factors on the record, based on our own de novo review, we hold that the record demonstrates that the trial court properly denied the Defendant's request to be placed on judicial diversion.
Accordingly, we reinstate the trial court's judgments.
Facts and Procedural Background
Shanice L. Dycus (" the Defendant" ) pleaded guilty to one count of possession of marijuana in excess of .5 ounces with intent to sell or deliver within 1,000 feet of a school zone, four counts of simple possession of marijuana, two counts of evading arrest, two counts of possession of drug paraphernalia, and three counts of criminal trespass. The plea agreements left the Defendant's sentence to be determined by the trial court. The State's summary of the facts at the plea agreement hearing revealed the following:
On November 19, 2010, a police officer on patrol in the Lincoln Homes housing projects in Clarksville noticed the Defendant behaving suspiciously. The Defendant was then under a criminal trespass order from the Clarksville Housing Authority to stay away from the Lincoln Homes housing projects. When the officer attempted to question the Defendant, she fled, pulling several objects from her pockets and discarding them onto the ground. The objects later were discovered to be five small bags of marijuana. Upon the Defendant's arrest, the officer discovered $2,000 in cash in the Defendant's jacket pocket, as well as a cell phone containing several messages related to the sale of marijuana. The Defendant was charged with simple possession of marijuana, criminal trespass, and evading arrest.
On March 18, 2011, two officers again noticed the Defendant trespassing in the Lincoln Homes complex. When they apprehended her, the officers recovered a small bag of marijuana that the Defendant attempted to discard. The Defendant was charged with simple possession of marijuana and criminal trespass.
On April 21, 2011, an officer stopped the Defendant's vehicle for speeding. The Defendant consented to a search of her vehicle, and the officer discovered three bags of marijuana. The marijuana later was weighed and was determined to weigh approximately three ounces. The location at which the Defendant was stopped was within 1,000 feet of the property of Kenwood Elementary School, Kenwood Middle School, and Kenwood High School. The Defendant was charged with possession of marijuana in excess of .5 ounces with intent to sell or deliver within 1,000 feet of a school zone and possession of drug paraphernalia.
On September 13, 2011, the Defendant again was spotted trespassing on a Clarksville Housing Authority property. The Defendant attempted to run from the officers and eventually was apprehended. The officers conducted a search incident to the Defendant's arrest and discovered a set of digital scales and a small amount of marijuana on the Defendant's person. The Defendant was charged with simple possession of marijuana, possession of drug paraphernalia, evading arrest, and criminal trespass.
Finally, on May 1, 2012, an officer witnessed the Defendant fail to stop at a stop sign. As a result of that encounter, the officer discovered a small bag of marijuana in the back seat of the Defendant's car.
As a result of the Defendant's subsequent guilty plea, a sentencing hearing was held on July 31, 2012. The presentence report was admitted into evidence. The Defendant testified that she was twenty years old at the time of the sentencing hearing and eighteen years old at the time
of the first arrest in the instant case. The Defendant testified that she had graduated from high school and already had begun attending college classes online by the time of the hearing. She confirmed that she had no prior convictions. She also confirmed that she was asking the trial court to place her on judicial diversion.
The trial court questioned whether the offense of possession with intent to sell or deliver within 1,000 feet of a school zone pursuant to section 39-17-432(b) of the Drug-Free School Zone Act was eligible for judicial diversion in light of the mandatory minimum service requirement of section 39-17-432(c). See Tenn. Code Ann. § 39-17-432(c) (" [A] defendant sentenced for a violation of subsection (b) shall be required to serve at least the minimum sentence for the defendant's appropriate range of sentence." ). The trial court continued the hearing in order to allow investigation into whether the Defendant was eligible for judicial diversion. On August 2, 2012, the trial court resumed the sentencing hearing. A judicial diversion eligibility form indicating that the Defendant was eligible for diversion was entered into the record. Following further discussion on the question of eligibility for diversion, the trial court again ordered that the case be continued in order to obtain an opinion from the Tennessee Attorney General regarding the question of the Defendant's eligibility for diversion in light of section 39-17-432(c).
The sentencing hearing resumed again on September 6, 2012. Defense counsel reported that the Tennessee Attorney General declined to offer an opinion at the current stage in the Defendant's case. Therefore, the trial court proceeded to sentencing. The trial court reasoned that offenses under the Drug-Free School Zone Act are not included in the list of offenses for which judicial diversion specifically is prohibited. See Tenn. Code Ann. § 40-35-313(a)(1)(B) (2010). The trial court further noted that " nowhere in the school zone sentence does it refer to . . . a term of diversion or that diversion is prohibited for an offense committed within a school zone." Based on that reasoning, the trial court concluded that the Defendant was eligible for judicial diversion. As a result, the trial court proceeded to consider whether the Defendant was a good candidate for judicial diversion.
The Defendant again testified. The Defendant stated that she no longer sold drugs and that she previously only sold marijuana because she was " [h]anging around the wrong people." She was living with her mother at the time of sentencing. She stated that she had not been arrested or charged with any new crimes since the last offense in the instant case. She was pursuing a college degree in business management. In response to questioning by the trial court, the Defendant stated that she had attempted to get a job but had been unsuccessful.
In considering whether to grant judicial diversion, the trial court first noted that the Defendant was " a very young person" when she committed the offenses in question. However, the trial court found that the Defendant showed a " complete disrespect for the law and lack of understanding of the wrongfulness of [her] actions" when she continued to commit drug related offenses even after multiple arrests and court appearances. Based on these findings, the trial court reasoned that there was a low likelihood that the Defendant would be rehabilitated by judicial diversion. The trial court stated that it was not convinced that the Defendant was remorseful and characterized ...