                                                                                        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.

       1
          Although no evidence was presented regarding the basis for Defendant’s initial arrest, in oral
argument, the prosecutor indicated that Officer Turner was aware of outstanding warrants for Defendant’s
arrest. Defendant does not challenge his initial arrest.
       2
           Officer Pickens’s first name is not in the record.
                                                       -2-
       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
                                           -3-
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


        3
          Given Defendant’s acquittal of that charge, we have omitted from this opinion the facts relevant
to that charge.
        4
            Defendant does not challenge the sufficiency of the evidence for his other convictions.
                                                     -4-
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);
                                           -5-
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
                                              -6-
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.
       5
           After Bonds was filed, the General Assembly amended Section 40-35-121(b).
       6
         These convictions were also enhanced to Class A felonies pursuant to the Drug-Free School
Zone Act. See T.C.A. § 39-17-432(b).
                                               -7-
       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).



        7
          In William Jermaine Stripling, the court noted sua sponte that the appellant had failed to raise
his constitutional challenge prior to trial but chose not to deem the issue waived because the State had not
argued that it should be waived. 2016 WL 3462134, at *5. Because our decision in Bonds had not yet
been published, the court then went on to engage in an independent consideration of the constitutionality
of the criminal gang enhancement statute and likewise concluded that it violated the protections of
substantive due process. Id. at *7-8. Accordingly, the court was not presented with the issue of
retroactive application of Bonds.
        8
          A different retroactivity analysis applies to cases in which the judgments have already become
final and a defendant raises a collateral challenge. See generally Bush, 428 S.W.3d 1.
                                                     -8-
        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

        9
            Gomez I was summarily vacated and remanded by the Supreme Court for further consideration
in light of new federal authority. See Gomez v. Tennessee, 549 U.S. 1190 (2007). On remand, our
supreme court signaled some doubt as to the continuing authority of Gomez I’s retroactivity holding when
it failed to affirm without reservation that aspect of Gomez I when presented with an opportunity to do so:

        Defendant Gomez and amicus curiae argue that plain error review is unnecessary and that
        we should grant plenary appellate review of the Defendants’ Sixth Amendment claims.
        Because we have determined that the Defendants are entitled to relief for plain error, we
        decline to readdress whether the Defendants properly preserved their Sixth Amendment
        claim for plenary review. Accordingly, consistent with our initial holding in Gomez I, we
        will apply plain error review to our reconsideration of the Defendants’ sentencing claims.

State v. Gomez (“Gomez II”), 239 S.W.3d 733, 737 (Tenn. 2007).
        10
          Although these opinions appear to be inconsistent, we note that it is possible that Cecil actually
engaged in a straightforward application of the rule in Gomez I because it is unclear whether the issue was
properly preserved in the trial court. See Cecil, 409 S.W.3d at 604 n.5 (noting that the defendant raised
the issue of “whether the evidence was sufficient to support his convictions of simple assault and false
imprisonment” in his motion for new trial); State v. Cecil, No. M2011-01210-CCA-R3-CD, 2012 WL
2674521, at *5 n.2 (Tenn. Crim. App. July 6, 2012) (noting that the defendant’s sufficiency of the
evidence challenge was predicated upon authority overruled by White), rev’d, 409 S.W.3d 599.
                                                    -9-
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,

        11
           We note that it would be particularly confounding not to apply plenary review to all cases in
the appellate pipeline given this Court’s recent decision in Ronnie Lamont Harshaw v. State, No. E2015-
00900-CCA-R3-PC, 2017 WL 1103048, at *12 (Tenn. Crim. App. Mar. 24, 2017), that Bonds is also
retroactively applicable to cases through collateral attack.
        12
           Although the dissent in Christopher Minor points out that our supreme court in Meadows did
“not explicitly reject[] the analysis in Teague for cases on direct review,” 2017 WL 63478, at *9 (citing
Meadows, 849 S.W.2d at 755), we think it worth mention that Teague’s analysis for cases on direct
review was based upon Griffith, see Teague, 489 U.S. at 304-05 (quoting Griffith, 479 U.S. at 322-24,
328), and in Gomez I, our supreme court provided the following explanation of Griffith:

        Having thus reviewed its factual and procedural background, we conclude that Griffith
        does not mandate plenary retroactive application of new rules to pending direct review
        cases without regard to whether the claim of error has been properly preserved. Instead,
                                                 - 10 -
the untimeliness of Defendant’s motion for new trial is immaterial because he was neither
required to properly raise this issue nor properly present it on appeal.

       Defendant challenges the validity of his criminal gang enhancement pursuant to
Tennessee Code Annotated section 40-35-121(b). As stated above, in Bonds, we held
that Section 40-35-121(b) was facially unconstitutional because it violated principles of
substantive due process. 502 S.W.3d at 157-58. Because three of Defendant’s
convictions were enhanced pursuant to an unconstitutional statute, he is entitled to relief.
Therefore, the criminal gang enhancement applied to Defendant’s convictions of
possession of cocaine with intent to sell or deliver and his conviction of unlawful
possession of a weapon are vacated, and the case is remanded for new sentencing on
those convictions in accordance with this opinion.

       Furthermore, we note that the outcome would be the same even if we were to
follow the plain error approach of Gomez I. When a defendant fails to properly preserve
and present an issue, this Court may review the issue for plain error. 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 raised in the motion for a new trial or assigned as error on appeal.”); State v. Gomez
(“Gomez II”), 239 S.W.3d 733, 737 (Tenn. 2007); Gomez I, 163 S.W.3d at 645, 651; see
also Gerald Lamont Byars, 2017 WL 758517, at *15; Christopher Minor, 2017 WL
634781, at *8. Plain error relief is available only if the defendant satisfies all five
requirements:

        (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 accused did not waive the issue for
        tactical reasons; and (5) consideration of the error is “necessary to do
        substantial justice.”

Gomez II, 239 S.W.3d at 737 (internal quotation omitted).




        Griffith simply overruled precedent which had precluded retroactive application of new
        rules to pending direct review cases. Where, as here, a new rule is announced while a
        criminal case is pending on direct review, Griffith mandates plenary application of the
        new rule only if the issue to which the new rule relates has been timely raised and
        properly preserved. A criminal defendant who has failed to properly preserve the
        relevant issue is limited to seeking relief via plain error review.

163 S.W.3d at 644-45 (footnote omitted). Thus, it appears that neither Teague nor Griffith is controlling
on this issue, and we base our decision on Cecil.
                                                  - 11 -
       All five requirements for plain error relief are satisfied in this case. First, the
record clearly establishes that Defendant was convicted of two counts of possession of a
controlled substance with intent to sell or deliver and one count of unlawful possession of
a firearm. The record also clearly establishes that all three of these convictions were
enhanced pursuant to Section 40-35-121(b).

       As to the second requirement, “[w]hether an error is ‘plain’ or ‘obvious’ is
determined by reference to the law existing as of the time of appellate consideration.”
Gomez I, 163 S.W.3d at 646, 653-54 (citing Johnson v. United States, 520 U.S. 461, 468
(1997)). Thus, even though neither the trial court nor the parties had the guidance of our
decision in Bonds, we are bound by that published decision in this direct appeal.13
Accordingly, Defendant’s criminal gang enhancement under Section 40-35-121(b)
violates a clear and unequivocal rule of law as pronounced in Bonds, which held that
Section 40-35-121(b) is facially unconstitutional under the Due Process Clause of the
Fourteenth Amendment. 502 S.W.3d at 157-58. Similarly, a substantial right of the
accused was adversely affected when three of Defendant’s convictions were enhanced by
an unconstitutional statute in violation of the requirements of substantive due process.

        As to the fourth requirement, it seems beyond question that Defendant did not
waive this issue for tactical reasons because there is no conceivable benefit from not
doing so. Lastly, we conclude that relief is necessary to do substantial justice under the
facts of this case. As Defendant points out in his appellate brief, the facts of this case
stand in stark contrast to those presented in Bonds. The underlying criminal activity in
Bonds was a gang “beating out” that nearly killed the victim. Unfortunately, the criminal
gang enhancements of the defendants in Bonds were invalidated despite the glaring fact
that the underlying offenses in that case were perpetrated during the furtherance of
criminal gang activity. See Bonds, 502 S.W.3d at 161. Such were the facts in
Christopher Minor as well were one victim was murdered and another beaten so a gang
member could “prove himself to the gang.” 2017 WL 634781, at *1. Here, however, as
in William Jermaine Stripling and Gerald Lamont Byars, no evidence was presented that
the underlying criminal offenses were perpetrated in connection with Defendant’s gang
affiliation. While this Court has no desire to propagate undue leniency for criminal gang
activity, the facts presented in this case reveal one of the primary flaws posed by a
criminal gang enhancement statute that lacks a requirement of a nexus between the
underlying criminal offense and the defendant’s gang affiliation—an offender’s
punishment is increased based on his connection to other individuals rather than on
individualized consideration of the nature of the crime or the offender’s personal
characteristics. Id. at 157-58.
       13
          On this point, we disagree with the majority’s analysis in Christopher Minor, which concluded
that a clear and unequivocal rule of law was not breached because “the criminal gang offenses
enhancement statute was in full effect at the time of the defendant’s convictions and sentencing.” 2017
WL 634781, at *9.
                                                  - 12 -
       After careful consideration of the law and the record, we conclude that Defendant
has shown that he is entitled to relief from his criminal gang enhancement because it was
imposed pursuant to an unconstitutional statutory provision.

                        C. Drug-Free School Zone Enhancement

       Although not raised by either party, we take note of another issue of plain error
regarding the Drug-Free School Zone enhancements for counts one and two. The
indictment charges Defendant with possession of more than one-half (.5) grams of
cocaine with intent to sell and deliver within 1000 feet of a preschool. Pursuant to
Tennessee Code Annotated section 39-17-432(b)(3), committing the charged offenses
within 1000 feet of a preschool results only in an increased fine—it does not authorize
“additional incarceration.” See State v. Mario Andre McElrath, No. W2006-02621-CCA-
R3-CD, 2007 WL 4245723, at *5 (Tenn. Crim. App. Dec. 3, 2007) (concluding under
plain error review “that although the defendant’s fine [was] within the range set by the
[Drug-Free School Zone Act], his period of incarceration cannot be increased by its
application because it exempts from its coverage, for incarceration purposes, preschools
and day care centers”). In this case, the trial court ordered the minimum sentence for a
Class A felony—fifteen years. T.C.A. § 40-35-112(a)(1). However, without the criminal
gang enhancement, the trial court should have considered Defendant’s sentence based on
the Class B felony range of “not less than eight (8) nor more than twelve (12) years.”
T.C.A. § 40-35-112(a)(2). We are convinced that all of the factors for plain error relief
described above are satisfied. See Gomez II, 239 S.W.3d at 737.

       Because this case involved a preschool, Defendant gets the advantage of not being
subject to additional incarceration that normally comes with a Drug-Free School Zone
enhancement. T.C.A. § 39-17-432(b)(3). He maintains the Class B felony classification
range for incarceration purposes. He still suffers the requirement of serving at least the
minimum sentence for his appropriate range as well as not being eligible for any sentence
reduction credits prior to full service of the minimum sentence. T.C.A. § 39-17-432(c)-
(d). Additionally, Defendant is subject to a fine of not less than $2000, T.C.A. § 39-17-
428(b)(9), and not more than $100,000, T.C.A. § 39-17-417(c)(1). Further, Defendant
shall be subject to an additional fine of not more than $60,000. T.C.A. § 39-17-
432(b)(2)(D), (b)(3).

      Thus, on remand, Defendant must be sentenced as a standard offender within the
Class B range of eight to twelve years, and the first eight years must be served at 100%.
For purposes of completion of the Uniform Judgment Document, as required by
Tennessee Code Annotated section 40-35-209(e) and Tennessee Supreme Court Rule 17,
Defendant’s indicted and convicted classification in counts one and two shall be listed as
Class B felonies, with the notation that the offenses occurred “in DFZ-Preschool.” His
                                          - 13 -
offender status should be indicated as “standard” while his release eligibility shall be
“Standard / Drug Free Zone.” Finally, to be in accordance with article VI, section 14 of
the Tennessee Constitution, the trial court in this case is limited to a maximum fine of
$30,000 as imposed by the jury at Defendant’s trial.14 Thus, the trial court may impose a
total fine anywhere between $2000 and $30,000.

       We understand that this attention to detail may seem a bit like obtrusive meddling
on the part of this Court. However, through no fault of the trial courts, such scrutiny has
become necessary because statutory modifications made without regard to the Tennessee
Criminal Sentencing Reform Act of 1989 have produced, and will continue to cause,
incongruent sentencing snares for the foreseeable future. As the State has previously
pointed out, the Drug-Free School Zone statute is “poorly worded.” See State v. Devon
Wiggins, No. W2007-01734-CCA-R3-CD, 2009 WL 1362323, at *9 (Tenn. Crim. App.
May 15, 2009), perm. app. denied (Tenn. Dec. 21, 2009). The sentencing process gets
very dicey when a trial court and this Court, as both courts must, attempt to reconcile the
Drug-Free School Zone Act with Tennessee Code Annotated sections 39-17-417, -428;
40-35-110 to -112, -118; and 40-35-209, just to name a few.

                                           D. Clerical Errors

        Furthermore, we must remand for entry of corrected judgments to rectify clerical
errors. See Tenn. R. Crim. P. 36. The first count of the indictment is for possession of
more than .5 grams of cocaine with intent to deliver, and the second count of the
indictment is for possession of more than .5 grams of cocaine with intent to sell. As
entered, the judgment form for count one identifies the offense as possession with intent
to sell while the judgment form for count two does not specify whether the offense is for
manufacturing, delivering, selling, or possessing. On remand, the judgments should
reflect that count one is for possession with intent to deliver and that count two is for
possession with intent to sell. Additionally, both judgment forms should reflect that
count two was merged into count one. See State v. Berry, 503 S.W.3d 360 (Tenn. 2015)
(order).

        Also, the judgment form for count one identifies the offense as occurring within
1000 feet of a daycare. However, the indictment states that the offense occurred within
1000 feet of a preschool, and the proof at trial likewise indicated that the vehicle in which
Defendant was riding drove by Fair Garden Preschool. On remand, the indicted offense
name and the conviction offense name on the judgment form for count one should reflect
that the offense occurred within 1000 feet of a preschool, not a daycare.



       14
            The trial judge reduced this amount to $3000 at Defendant’s sentencing hearing.
                                                    - 14 -
        Finally, the judgment form for count two does not state that the indicted offense
occurred within 1000 feet of a drug-free school zone. Moreover, the judgment form for
count two incorrectly identifies the controlled substance as methamphetamine. The
indictment states that the offense was possession of more than .5 grams of cocaine with
intent to sell within 1000 feet of a preschool. On remand, the indicted offense name and
the conviction offense name should reflect the proximity to the preschool and the
possession of cocaine, not methamphetamine.

                                      Conclusion

       Based on the foregoing reasons, the criminal gang enhancement applied to
Defendant’s convictions of possession of cocaine with intent to sell or deliver and his
conviction of unlawful possession of a weapon are vacated, and the case is remanded for
new sentencing on those convictions in accordance with this opinion. Additionally,
Defendant’s convictions of possession of cocaine with intent to sell or deliver as
enhanced by the Drug-Free School Zone Act are remanded for resentencing in
accordance with this opinion. We also remand those judgments for correction of clerical
errors regarding the names of the offenses. Defendant’s conviction and sentence for the
unlawful possession of a firearm during the commission of a dangerous felony remain
unaffected by our decision.


                                                   ________________________________
                                                   TIMOTHY L. EASTER, JUDGE




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