        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
             Opinion on Remand from the Supreme Court of Tennessee

         STATE OF TENNESSEE v. VANESSA RENNEE PINEGAR

                  Appeal from the Circuit Court for Warren County
                      No. F-14256 Larry B. Stanley, Jr., Judge
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                 No. M2015-02403-CCA-R3-CD – Filed May 16, 2017
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The defendant, Vanessa Rennee Pinegar, appealed her convictions of one count of
facilitation of delivery of 0.5 or more grams of cocaine within a drug-free school zone
and two counts of attempted delivery of 0.5 or more grams of cocaine within a drug-free
school zone, challenging the denial of her motion to sever the trial of the defendants,
certain evidentiary rulings, the jury instructions, the sufficiency of the evidence, and her
effective nine-year sentence. This Court affirmed the convictions and sentence. The
defendant filed an application for permission to appeal to our Supreme Court. The
Tennessee Supreme Court granted the application and remanded the case to this Court for
reconsideration of sentencing in light of State v. Gibson, 506 S.W.3d 450 (Tenn. 2016).
Upon reconsideration, we vacate the defendant’s enhanced sentences under the Drug-
Free School Zone Act and remand the matter to the trial court for further proceedings
consistent with this opinion. In all other respects, the judgments of the trial court are
affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
                     Part, Reversed in Part; Case Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.
and ROBERT H. MONTGOMERY, JR., J., joined.

John P. Partin, District Public Defender; Ricky L. Stacy, Assistant Public Defender, for
the appellant, Vanessa Renee Pinegar.

Herbert H. Slatery III, Attorney General and Reporter; Andrew Craig Coulam, Assistant
Attorney General; Lisa Zavogiannis, District Attorney General; and Justin Walling,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                OPINION ON REMAND

        This Court’s prior opinion contains a detailed recitation of the facts of this case,
and there is no need to reiterate them in this opinion. State of Tennessee v. Vanessa
Renee Pinegar, No. M2015-02403-CCA-R3-CD, 2016 WL 6312036, at *1-3 (Tenn.
Crim. App. Oct. 28, 2016). In our prior opinion, we affirmed the defendant’s convictions
for facilitation of delivery of 0.5 or more grams of cocaine within a drug-free school zone
and attempted delivery of 0.5 or more grams of cocaine within a drug-free school zone.
Id. at *7-16. We further affirmed the trial court’s imposition of an effective sentence of
nine years with a mandatory eight years in confinement. Id. at *17. Pursuant to Rule 11
of the Tennessee Rules of Appellate Procedure, the defendant subsequently filed an
application for permission to appeal to the Tennessee Supreme Court asserting, in part,
the trial court erred when classifying the defendant’s convictions for facilitation of
delivery and attempted delivery of 0.5 or more grams of cocaine within a drug-free
school zone as Class B felonies requiring 100 percent service of the minimum sentence.
In support of this argument, the defendant relied on State v. Gibson, 503 S.W.3d 450
(Tenn. 2016), a Tennessee Supreme Court opinion issued subsequent to our prior opinion
in this case wherein the Supreme Court held the increased felony classification under the
Drug-Free School Zone Act does not apply to a conviction for facilitation, abrogating
State v. Charles Lincoln Faulkner, No. E2006-02094-CCA-R3-CD, 2008 WL 2242531
(Tenn. Crim. App. June 2, 2008). Our Supreme Court accepted the application and
remanded the case back to the Court of Criminal Appeals for reconsideration of the
sentences for all counts in light of Gibson.

       In Gibson, our Supreme Court considered whether the Drug-Free School Zone
Act, Tennessee Code Annotated section 39-17-432, applies when a defendant is
convicted of facilitation of an offense listed in Tennessee Code Annotated section 39-17-
417. In doing so, it looked at the plain language of the Act, first noting its stated intent
was to “‘create drug-free zones for the purpose of providing vulnerable persons in this
state an environment in which they can learn, play and enjoy themselves without the
distractions and dangers that are incident to the occurrence of illegal drug activities[,]’”
so “[t]he legislature determined that the ‘enhanced and mandatory minimum sentences’
required by the Act are necessary ‘to serve as a deterrent to such unacceptable conduct.’”
Tenn. Code Ann. § 39-17-432(a). With respect to the enhanced sentence, the Act then
provides:

       (b)(1) A violation of § 39-17-417, or a conspiracy to violate the section,
       that occurs on the grounds or facilities of any school within one thousand
       feet (1,000’) of the real property that comprises a public or private
       elementary school . . . shall be punished one (1) classification higher than
       is provided in § 39-17-417(b) – (i) for such violation. . . .
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      (c) Notwithstanding any other 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 the defendant’s
      appropriate range of sentence. Any sentence reduction credits the
      defendant may be eligible for or earn shall not operate to permit or allow
      the release of the defendant prior to full service of the minimum sentence.

Tenn. Code Ann. § 39-17-432(b)(1), (c).

       The Supreme Court found this language to be clear and unambiguous and that
“[b]y its very wording, the statute applies only to a violation of, or a conspiracy to
violate, Tennessee Code Annotated section 39-17-417.” Gibson, 506 S.W.3d at 456.
Applying the basic principles of statutory construction, the Supreme Court held that the
trial court erred when applying the Act to increase the felony classification of the
defendant’s facilitation conviction, stating:

      Facilitation is not an enumerated offense that falls within the ambit of the
      Drug–Free School Zone Act. See [State v.] Fields, 40 S.W.3d at 439-40[,
      (Tenn. 2001)]. We are not free to alter, amend, or depart from the words of
      the statute. Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803
      (Tenn. 2000). The courts “must be circumspect about adding words to a
      statute that the General Assembly did not place there.” Coleman v. State,
      341 S.W.3d 221, 241 (Tenn. 2011). We cannot add facilitation to the list of
      offenses subject to sentencing under the Act and extend its scope beyond
      the clear intent of the General Assembly. Therefore, we hold that the trial
      court erred in applying the Act to increase the felony classification of Mr.
      Gibson’s facilitation conviction.

Id.

      The Court went on to explain:

      The Court of Criminal Appeals, in holding that the Act applies to a
      conviction for facilitation, relied on its decision in State v. Faulkner, [No.
      E2006-02094-CCA-R3-CD,] 2008 WL 2242531, at *16 [(Tenn. Crim. App.
      June 2, 2008)], where the defendant was charged with selling and
      delivering a controlled substance within 1000 feet of a school. The Court
      of Criminal Appeals ruled that the trial court did not err in instructing the
      jury on the lesser-included offenses of attempt and facilitation. Faulkner is
      factually distinguishable and not dispositive of the issues in this case.
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       However, the dicta in Faulkner, stating that the Act applies to the offense
       of facilitation, is inaccurate.

Id. at 456-57. When noting Faulkner to be factually distinguishable from Gibson, our
Supreme Court included a footnote clarifying that “[t]he issue of whether the Drug-Free
School Zone Act applies to a conviction for attempt of any of the offenses proscribed by
Tennessee Code Annotated section 39-17-417 is not presented in this case.” Id. at 457
n.3.

        Here, the jury found the defendant guilty of one count of facilitation of possession
with intent to deliver 0.5 grams or more of cocaine within a drug-free school zone and
two counts of attempt to deliver 0.5 grams or more of cocaine within a drug-free school
zone. At the sentencing hearing, the trial court merged the attempted delivery
convictions because they arose out of the same transaction and found the defendant was
to be sentenced as a Range I standard offender. Both facilitation of possession with
intent to deliver 0.5 grams or more of cocaine and attempt to deliver 0.5 grams or more of
cocaine are Class C felonies. Tenn. Code Ann. § 39-17-417(c)(1); Tenn. Code Ann. §
39-11-403(b); Tenn. Code Ann. § 39-12-107(a). Because these felonies occurred in a
drug-free school zone, the trial court enhanced the convictions to Class B felonies and
imposed a within range concurrent sentence of nine years for both, with a mandatory
minimum period of incarceration of eight years. See Tenn. Code Ann. § 40-35-112(a);
Tenn. Code Ann. § 39-17-432(c).

       Pursuant to Gibson, the Drug-Free School Zone Act does not apply to the
defendant’s facilitation conviction. Gibson, 506 S.W.3d at 458. Accordingly, the trial
court erred when classifying the defendant’s facilitation conviction as a Class B felony
and requiring 100 percent service of the minimum sentence. Id. We vacate the sentence
imposed for the defendant’s conviction of facilitation and remand the case for
resentencing as a Class C felony.

        Based on the Supreme Court’s rationale in Gibson, we are constrained to find
Gibson also excludes the defendant’s criminal attempt to deliver convictions from the
reach of the Drug-Free School Zone Act. Our Supreme Court found the Act’s language
to be clear and unambiguous, so it could not expand the clear intent of the Act to include
facilitation. Id. at 457. While Gibson did not address whether the Act applies to
convictions for attempt, attempt is also not an enumerated offense included by the
legislature in the Act. Id. Therefore, applying the same analysis used by our Supreme
Court in Gibson, attempt also does not fall within the reach of the Act’s enhanced
sentencing mandates. Accordingly, the trial court erred when classifying the defendant’s
attempt to deliver conviction as a Class B felony and requiring 100 percent service of the

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minimum sentence. Id. We vacate the sentence imposed for the defendant’s conviction
of attempt to deliver and remand the case for resentencing as a Class C felony.


                                       Conclusion

      Upon reconsideration of this case in light of Gibson, we vacate the sentences
imposed for facilitation of delivery of 0.5 grams of cocaine or more in a drug-free school
zone and attempted delivery of 0.5 grams or more of cocaine in a drug-free school zone.
This matter is remanded to the trial court for proceedings consistent with this opinion.


                                             ____________________________________
                                            J. ROSS DYER, JUDGE




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