04/13/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs November 16, 2016 STATE OF TENNESSEE v. RONALD TURNER Appeal from the Criminal Court for Knox County No. 105636 Steven Wayne Sword, Judge ___________________________________ No. E2016-00790-CCA-R3-CD ___________________________________ Defendant, Ronald Turner, appeals his convictions stemming from various drug and firearm offenses. He challenges the sufficiency of the evidence and argues that the criminal gang enhancement of some of his offenses pursuant to Tennessee Code Annotated section 40-35-121(b) was unconstitutional in light of State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016). Upon review, we determine that the evidence is sufficient to support Defendant’s convictions. However, because Defendant is entitled to retroactive application of the holding in Bonds, we vacate the sentences of the underlying convictions to which the enhancement was applied and remand those convictions for resentencing. Additionally, we conclude that the trial court committed plain error by improperly applying the Drug-Free School Zone Act and remand for resentencing on this basis. We also remand for correction of clerical errors. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed in Part, Affirmed in Part, and Remanded TIMOTHY L. EASTER, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined. J. Liddell Kirk (on appeal) and Michael A. Graves (at trial), Knoxville, Tennessee, for the appellant, Ronald Turner. Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General, Senior Counsel; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Procedural History and Factual Summary Defendant was indicted with one count of possession with intent to deliver more than .5 grams of cocaine within a drug-free zone (DFZ), one count of possession with intent to sell more than .5 grams of cocaine within a DFZ, two counts of possession of a firearm during the commission of a dangerous felony, one count of theft of property valued over $500, and one count of unlawful possession of a weapon. The indictment also included three separate counts for the criminal gang enhancement based on both drug charges and the unlawful possession of a weapon charge. Defendant proceeded to a bifurcated trial, during which the following facts were adduced. Officer Thomas Turner of the Knoxville Police Department testified that, on January 3, 2015, he observed a silver Ford Crown Victoria turning onto Fern Street. Officer Turner began following the vehicle and observed it reach a speed of forty miles per hour on two different occasions while driving on streets with a speed limit of twenty- five miles per hour. Officer Turner initiated a traffic stop and approached the driver of the vehicle. The driver of the vehicle produced his driver’s license. Officer Turner explained the reason for stopping the vehicle and requested that the driver roll down the rear windows of the car because they were darkly tinted. The driver complied with this request, which revealed Defendant sitting in the driver’s side back seat. Officer Turner opened the door and asked Defendant to exit the vehicle. Defendant complied. Officer Turner then placed Defendant’s hands behind his back and applied handcuffs.^[1] Officer Turner’s backup, Officer Pickens,2 observed the handle of a firearm protruding from the waistband of Defendant’s pants, and he confiscated the firearm, which was a Kel-Tec nine-millimeter semiautomatic handgun. The firearm was loaded with fourteen rounds in the magazine and one round in the chamber. As Officer Turner prepared to put Defendant in the back of his patrol car, Officer Turner searched Defendant’s person, discovering a cigarette pack in the right pocket of Defendant’s pants. The cigarette pack contained several cigarettes and “two separate, small clear plastic baggies” containing numerous small rocks of crack cocaine. Officer Turner’s portable field scale weighed one of the baggies at 1.5 grams and the other at 1.0 grams.

Based on Officer Turner’s training and experience, the amount of cocaine in the baggies exceeded the amount typically carried by a drug user and was consistent with the amounts carried for sale by drug dealers. Defendant’s possession of a firearm and lack of possession of drug paraphernalia were also indicative of Defendant’s possession of the cocaine with the intent to sell rather than for personal consumption. Officer Terry Pate of the Knoxville Police Department, who was certified by the trial court as an expert in narcotics investigations without objection, also testified that, based on his training and experience, the nature and amount of cocaine in Defendant’s possession, in addition to Defendant’s possession of a firearm but no possession of drug paraphernalia, indicated that Defendant intended to sell the cocaine.

Special Agent Mollie Stanfill, a forensic scientist for the Tennessee Bureau of Investigation, performed a chemical analysis on the substance in the plastic baggies and confirmed the presence of .87 grams of cocaine base. Lisa Knight of the Tennessee Department of Safety and Homeland Security testified that Defendant had never applied for or been issued a handgun carry permit.

Officer Turner confirmed that the route taken by the Crown Victoria along Fern Street passed in front of Fair Garden Preschool. Donna Roach, office manager and administrative technician for KUB Geographic Information Systems, confirmed that a computer model calculated the location indicated by Officer Turner to be within 1000 feet of Fair Garden Preschool.

Defendant testified that his brother had been murdered the night before he was arrested. Prior to the arrest, Defendant was at his cousin’s house. Someone who was with Defendant’s brother when he was killed gave Defendant his brother’s belongings, which included the handgun. Several packs of cigarettes were on top of a coffee table. Before leaving his cousin’s house, Defendant walked over to the table and picked up a pack of Newport cigarettes. Defendant shook the pack and took it with him because it “felt the fullest.”

Defendant left his cousin’s house with some people to go to the store to get a drink. On the way, Defendant pulled a cigarette from the pack, and one of the bags of cocaine fell out. Defendant then asked the driver to take him back to his cousin’s house because he “didn’t want to have somebody else’s belongings.” On the way back, they passed Officer Turner, with whom Defendant was previously familiar, and Officer Turner stopped the vehicle.

Defendant testified that he knew he had the gun in his possession, but he did not know that the cocaine was in the pack of cigarettes. Because Defendant did not know that there were drugs in the pack of cigarettes, Defendant was unaware that he was possessing drugs in a DFZ. Defendant took the gun with him because one of the rules of his cousin’s house was “no guns.”

Defendant was convicted as charged on all of the underlying offenses, except for the charge of theft, of which Defendant was acquitted.^[3] After the jury returned verdicts on the underlying offenses, the court then proceeded to the second phase of the bifurcated trial on the criminal gang enhancement charges. The State presented proof that Defendant was a member of a criminal street gang known as the Vice Lords. After hearing all of the proof, Defendant was convicted of the criminal gang enhancements for all three of the underlying offenses.

After a sentencing hearing, Defendant received an effective sentence of nineteen years. The trial court sentenced Defendant to fifteen years for possession of cocaine with intent to deliver and merged into it the conviction for possession of cocaine with intent to sell. The trial court sentenced Defendant to four years for possession of a firearm during the commission of a dangerous felony and merged into it the other conviction for the same offense. Pursuant to statute, the sentence for possession of a firearm during the commission of a dangerous felony was mandatorily consecutive to the sentence for possession of cocaine with intent to deliver. The trial court sentenced Defendant to one year for the unlawful possession of a firearm conviction and ran it concurrently with the sentence for possession with intent to deliver.

After the sentencing hearing, the trial court entered the judgments for the substantive offenses on January 12, 2016, and the judgments were filed on January 13, 2016. Defendant filed a motion for new trial on February 16, 2016. The trial court held a hearing on the motion for new trial on March 3, 2016, and denied the motion. The written order denying the motion was entered the following day. Defendant filed a notice of appeal on March 31, 2016.

Analysis

Defendant argues that the evidence was insufficient to support his convictions for possession of a controlled substance with intent to sell or deliver4 and that his criminal gang enhancements are unconstitutional. The State argues that Defendant’s notice of appeal was untimely and that there was sufficient evidence to support his convictions. The State further argues that Defendant has waived his challenge to the criminal gang enhancements by failing to raise a pre-trial challenge to the constitutionality of the criminal gang enhancement statute and by failing to properly present that issue for appellate consideration in a timely filed motion for new trial.

A. Sufficiency of the Evidence

As an initial matter, we must determine whether Defendant has waived his challenge to the sufficiency of the evidence by filing an untimely notice of appeal. Tennessee Rule of Appellate Procedure 4(a) requires that a notice of appeal be filed within thirty days after the date of entry of the judgment. In the event of a timely motion for new trial, Tennessee Rule of Appellate Procedure 4(c) authorizes the filing of a notice of appeal within thirty days of the entry of the order denying the motion.

Here, the notice of appeal was filed within thirty days of the entry of the order denying the motion for new trial. Normally, this would render the notice of appeal timely, but in this case, the motion for new trial was not timely. Tennessee Rule of Criminal Procedure 33(b) requires that a motion for new trial be filed “within thirty days of the date the order of sentence is entered.” Where a motion for new trial is not filed within the prescribed thirty-day time period, the judgment becomes final, and the trial court loses jurisdiction to consider a subsequent late-filed motion for new trial. State v. Lowe-Kelley, 380 S.W.3d 30, 34 (Tenn. 2012). Because Defendant’s motion for new trial was not timely filed, it was a nullity, State v. Boxley, 76 S.W.3d 381, 389 (Tenn. Crim. App. 2001), thereby rendering the notice of appeal also untimely because it was not filed within thirty days of entry of the judgments.

However, “in all criminal cases, the ‘notice of appeal’ document is not jurisdictional, and the filing of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a). “In determining whether waiver is appropriate, this [C]ourt will consider the nature of the issues presented for review, the reasons for and the length of the delay in seeking relief, and any other relevant factors presented in the particular case.” State v. Rockwell, 280 S.W.3d 212, 214 (internal quotation omitted). Under the circumstances of this case, we choose to waive the requirement of a timely filing of the notice of appeal and proceed to consider whether there was sufficient evidence to support Defendant’s convictions for possession of cocaine with intent to sell or deliver.

When a defendant challenges the sufficiency of the evidence, this Court is obliged to review that claim according to certain well-settled principles. A guilty verdict removes the presumption of innocence and replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The relevant question the reviewing court must answer is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom.” State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from re-weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the weight and value to be given to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

“It is an offense for a defendant to knowingly . . . [p]ossess a controlled substance with intent to . . . deliver or sell the controlled substance.” T.C.A. § 39-17-417(a)(4). Cocaine is a Schedule II controlled substance. T.C.A. § 39-17-408(b)(4). When the foregoing offense is committed within 1000 feet of a preschool, it “shall be punished one classification higher,” T.C.A. § 39-17-432(b)(1), and the offender “shall be required to serve at least the minimum sentence for the defendant’s appropriate range of sentence,” T.C.A. § 39-17-432(c). However, a violation “within the prohibited zone of a preschool . . . shall not be subject to additional incarceration . . . but shall be subject to the additional fines imposed by this section.” T.C.A. § 39-17-432(b)(3).

Defendant argues that the evidence presented at trial established that he neither knowingly possessed the cocaine nor intended to deliver or sell it. Defendant further argues that the evidence is insufficient to prove that he knew he was in a DFZ while committing the offenses. We disagree. Defendant’s argument is predicated upon his testimony at trial that he did not know the cocaine was inside the pack of cigarettes when he left his cousin’s house and that, after discovering the cocaine, he was en route to return it at the time he was arrested. However, the jury was free to reject Defendant’s testimony, and here, they did so. On appeal, we consider all of the evidence in the light most favorable to the State.

The State’s evidence established that Officer Turner, during a search incident to arrest, discovered a pack of cigarettes containing over .5 grams of crack cocaine in the pocket of Defendant’s pants. Officers Turner and Pate testified that, based on their training and experience, Defendant’s possession of the cocaine was inconsistent with the usual practices of an ordinary drug user and more consistent with the practices of a drug dealer. The officers reached this conclusion because: (1) the amount of cocaine was larger than that usually possessed at one time by a drug user; (2) the cocaine was packaged in a manner convenient for sale and distribution—small, individual rocks wrapped in plastic baggies; (3) there was no drug paraphernalia to facilitate consumption of the cocaine; and (4) Defendant was also carrying a handgun. This evidence is sufficient for a rational jury to find beyond a reasonable doubt that Defendant knowingly possessed the cocaine and intended to either deliver or sell it.

Similarly, the State’s evidence showed that Defendant passed within 1000 feet of a preschool while in possession of the cocaine. Whether Defendant was aware that he was committing the drug offense while in this proximity to the preschool is immaterial because the DFZ enhancement does not contain a mens rea element. The State does not have to prove that Defendant knew that he was committing an offense within 1000 feet of a preschool. State v. Smith, 48 S.W.3d 159, 167 (Tenn. Crim. App. 2000). Accordingly, Defendant is not entitled to relief on this issue.

B. Criminal Gang Enhancement

Defendant argues that the criminal gang enhancement applied to some of his convictions pursuant to Tennessee Code Annotated section 40-35-121 should be vacated in light of this Court’s decision in State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016), holding that portions of the criminal gang enhancement scheme are facially unconstitutional. The State argues that Defendant has waived this issue by failing to raise it before trial and by failing to file a timely motion for new trial.

At the time of the offenses, Tennessee Code Annotated section 40-35-121(b) provided: “A criminal gang offense committed by a defendant who was a criminal gang member at the time of the offense shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed.”5 Possession of a controlled substance with intent to sell or deliver was an enumerated criminal gang offense, T.C.A. § 40-35-121(a)(3)(B)(xxv), as was unlawful possession of a weapon, T.C.A. § 40-35-121(a)(3)(B)(xxvi). Defendant’s indictment charged criminal gang enhancement for both of the drug offenses as well as the unlawful possession of a firearm charge.

During the second phase of the bifurcated trial, the jury made the requisite factual findings and applied the criminal gang enhancements as charged. As a result, Defendant’s Class B felony convictions for possession of cocaine with intent to sell or deliver were classified as Class A felonies6 while his Class A misdemeanor conviction for unlawful possession of a firearm was classified as a Class E felony.

As stated above, the judgments were entered on January 12, 2016, but Defendant did not file a motion for new trial until February 16, 2016. The motion for new trial alleged: “Defendant challenges the validity of the gang enhancement statute; other challenges of validity in other defendant[s’] cases are still pending on appeal.” That was the first time Defendant posed any question as to the validity of the criminal gang enhancement statute. Defendant filed a notice of appeal on March 31, 2016, and on April 7, 2016, this Court filed its opinion in Bonds, holding that the criminal gang enhancement statute violated constitutional substantive due process protections because it lacked a requirement that there be a nexus between the underlying criminal offense and a defendant’s affiliation with a criminal gang. 502 S.W.3d at 157. Thus, this case was in the pipeline when Bonds was decided.

Defendant contends that he should benefit from the ruling in Bonds. The State argues that Defendant waived the issue of the validity of his criminal gang enhancement because he did not file a pre-trial motion challenging the constitutionality of the statute and also because he failed to raise the issue in a timely motion for new trial. We agree with the State that Defendant was required to challenge the constitutionality of the criminal gang enhancement statute prior to trial through a motion to dismiss in order to have properly preserved this issue for appeal. See State v. William Jermaine Stripling, No. E2015-01554-CCA-R3-CD, 2016 WL 3462134, at *5 (Tenn. Crim. App. June 16, 2016) (citing State v. Rhoden, 739 S.W.2d 6, 10 (Tenn. Crim. App. 1987)) (considering whether a defendant’s failure to raise a constitutional challenge to the criminal gang enhancement statute before trial resulted in waiver of the issue and citing cases), no perm. app. filed.^[7] However, as a general rule, appellate court decisions involving the constitutionality of criminal rules and procedures are given limited retroactive application to cases already in the appellate process. Meadows v. State, 849 S.W.2d 748, 754 (Tenn. 1993) (citing State v. Robbins, 519 S.W.2d 799, 800 (Tenn. 1975)), overruled on other grounds by Bush v. State, 428 S.W.3d 1 (Tenn. 2014).8 Obviously, the scope of that rule includes cases such as this one that are pending review on direct appeal. See, e.g., State v. Cecil, 409 S.W.3d 599, 608 (Tenn. 2013).

Previously, our supreme court has required an issue to be properly preserved at trial and presented on appeal to receive the benefit of a recently-decided appellate court ruling. State v. Gomez (“Gomez I”), 163 S.W.3d 632, 644 n.9 (Tenn. 2005) (noting that “this Court has regularly limited retroactive application of new rules to only those cases pending on direct review in which the issue has been timely raised and properly preserved” (citations omitted)), vacated on other grounds, 549 U.S. 1190 (2007).9 However, language in the supreme court’s most recent decision on this topic casts doubt onto the rule as stated in Gomez I. In Cecil, the court addressed the retroactive application of its decision in State v. White, 362 S.W.3d 559 (Tenn. 2012), to cases in the appellate process. 409 S.W.3d at 608. Without much ado, the court concluded, “Because this case was on direct appeal at the time White was decided, the issue has been preserved, and the Defendant is entitled to the benefit of our ruling.” Id. (citing Lease v. Tipton, 722 S.W.2d 379, 379 (Tenn. 1986) (per curiam)). As can be seen, the court’s language suggests that a case merely being in the appellate process at the time a new rule is announced is sufficient to preserve an issue regardless of whether the issue was properly raised in the trial court.^[10]

This Court has recently addressed the issue of retroactive application of Bonds in two cases. In State v. Christopher Minor, No. W2016-00348-CCA-R3-CD, 2017 WL 634781, at *8 (Tenn. Crim. App. Feb. 16, 2017), the majority determined that the issue was waived because it was raised for the first time on appeal. The majority then concluded that plain error relief was not warranted because a clear and unequivocal rule of law was not breached as our opinion in Bonds was not filed until after the appellant was sentenced. Id. at *9 (citing Gomez I, 163 S.W.3d at 648). One member of the panel dissented, arguing that retroactive application of Bonds was required, despite the appellant’s failure to properly raise the issue to the trial court, based upon Meadows, 849 S.W.2d at 754 (stating that “newly announced state constitutional rules will be given retroactive application to cases which are still in the trial or appellate process at the time such rules are announced, unless some compelling reason exists for not so doing”), and Teague v. Lane, 489 U.S. 288, 304 (1989) (stating that “the integrity of judicial review ‘requires the application of the new rule to all similar cases pending on direct review’” (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987))). Christopher Minor, 2017 WL 634781, at *9-10 (McMullen, J., dissenting). The dissent did not address our supreme court’s retroactivity analysis in Gomez I but pointed to Cecil as support for blanket application of Bonds to all cases in the appellate process. Id. at[*11] . In State v. Gerald Lamont Byars, No. W2016-00005-CCA-R3-CD, 2017 WL 758517, at[*15] -17 (Tenn. Crim. App. Feb. 27, 2017), the panel concluded that application of Bonds was warranted under Cecil’s “pipeline approach” or, alternatively, under the plain error doctrine.

Candidly, we are uncertain about the state of the controlling law at this point. Cecil is the most recent word from our supreme court on this subject, but it seems uncharacteristic that the court would have intentionally chosen a tacit departure from its exhaustive opinion in Gomez I without an explanation for the change of course. Nonetheless, we agree with the sentiment expressed by the dissent in Christopher Minor that it seems “nonsensical” not to apply Bonds retroactively to all cases pending on appeal, 2017 WL 634781, at[*11] , and we choose to follow the plenary review approach of Cecil.^[11] See also Gerald Lamont Byars, 2017 WL 758517, at[*17] (stating that, even without retroactive application of Bonds, “we fail to see how we would be constrained to uphold a statute that was ‘so obviously unconstitutional on its face as to obviate the necessity for any discussion.’” (quoting Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983))). Accordingly, Defendant is entitled to the benefit of our ruling in Bonds because his case was pending on direct appeal at the time Bonds was decided.^[12] As such,