         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 12, 2008 Session

            STATE OF TENNESSEE v. MARIO ANDRE McELRATH

                        Appeal from the Circuit Court for Obion County
                          No. C06-54    William B. Acree, Jr., Judge



                      No. W2008-00947-CCA-R3-CD - Filed May 6, 2009


The defendant, Mario Andre McElrath, was convicted of the attempted sale of .5 grams or more of
cocaine within one thousand feet of a school zone. On direct appeal, this court found plain error in
the trial court’s imposition of a ten-year, Range I sentence for a Class B felony and remanded for
resentencing for a Class C felony. State v. Mario Andre McElrath, No. W2006-02621-CCA-R3-CD,
2007 WL 4245723 (Tenn. Crim. App. Dec. 3, 2007). On resentencing, the trial court imposed a
sentence of four years for a Class C felony for a violation of the Drug Free School Zone Act
(DFSZA). In this appeal as of right, the defendant argues that the exemption from increased
incarceration provided in Tennessee Code Annotated section 39-17-432(b)(3) should apply to the
release eligibility provision of section -432(c). Following our review, we conclude that the
exemption does not apply to the release eligibility provision and affirm the judgment of the trial
court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ALAN E. GLENN , JJ., joined.

James T. Powell, Union City, Tennessee, attorney for appellant, Mario Andre McElrath.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney
General, attorneys for appellee, State of Tennessee.

                                              OPINION

        In the defendant’s initial appeal, this court found plain error in the trial court’s increase of
the defendant’s sentencing range to a Class B felony. Tennessee Code Annotated section 39-17-
432(b)(1) provides, in pertinent part, that:

       [a] violation of §39-17-417 . . . that occurs . . . within one thousand feet (1,000') of
       the real property that comprises a public or private elementary school, middle school,
       secondary school, preschool, child care agency, or public library, recreation center
       or park shall be punished one (1) classification higher than is provided in § 39-17-
       417 (b) - (i) for such violation.

Tenn. Code Ann. § 39-17-432(b)(1). However, section -432(b)(3) provides exemption from this
increased sentencing range provision under certain circumstances and states,

               A person convicted of violating this subsection (b), who is within the
               prohibited zone of a preschool, childcare center, public library,
               recreational center or park shall not be subject to additional
               incarceration as a result of this subsection (b) but shall be subject to
               the additional fines imposed by this section.

Tenn. Code Ann. § 39-17-432(b)(3) (emphasis added). The evidence presented at trial showed that
the offense occurred within one thousand feet of a preschool and day care center. McElrath, 2007
WL 4245723, at *1. Thus, the defendant was exempted from the increased range of sentence
provided by section -432(b)(1), but still subject to an increased fine pursuant to section -432(b)(2).
Accordingly, at resentencing the trial court imposed a sentence of four years and sentenced the
defendant for a Class C felony offense. At the hearing, the defendant contended that he should not
be subject to the release eligibility provision of the DFSZA – arguing that the exemption from
increased range should apply likewise to release eligibility. The trial court disagreed and stated,

               I don’t think it is my responsibility anyway to designate in the record
               as to how much of the sentence you are going to have to serve. I’m
               simply sentencing you for a Class C felony, as a Range I offender, to
               four years under the [Drug Free] School Zone Act, the school zone
               being a daycare center.

       On appeal, the defendant maintains that he should be exempt from the release eligibility
provision found at Tennessee Code Annotated section 39-17-432(c) which provides that “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 State contends that the exemption
found in section -432(b)(3) is not applicable to section -432(c). As noted by this court in its first
opinion regarding this case,

              Issues of statutory construction are questions of law to be reviewed de novo
       by an appellate court, which is to ‘effectuate legislative intent’:

               Courts are restricted to the natural and ordinary meaning of the
               language used by the legislature in the statute, unless an ambiguity
               exists which requires further inquiry to ascertain legislative intent.
               The language employed must be considered in the context of the
               entire statute, and the component parts of a statute should be
               construed, if possible, consistently and reasonably.


                                                 -2-
McElrath, 2007 WL 4245723, at *4 (citing State v. Goodman, 90 S.W.3d 557, 563-64 (Tenn. 2002)
(citations omitted)). The defendant stands convicted of a violation of the DFSZA. Apparent from
a plain reading of the statute is the legislative intent to exempt from an increased range of sentence
those offenders committing acts at locations other than a traditional school setting yet still frequented
by children. However, a plain reading of the statute does not reveal any legislative intent to exempt
those same offenders from the minimum release eligibility requirement of section -432(c). The
exemption in -432(b)(3) speaks only to “additional incarceration as a result of this subsection (b).”
The only incarceration referred to in subsection (b) is sentencing class; release eligibility is not
addressed in subsection (b). As an offender convicted of a violation of the DFSZA, the defendant
is subject to the provisions of -432(c). Therefore, we conclude that the defendant shall be required
to serve one hundred percent of the minimum sentence for his range, to wit: three years for a Class
C felony as a Range I offender, before becoming eligible for release. The judgment of the trial court
is affirmed.

                                           CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.


                                                        ___________________________________
                                                        D. KELLY THOMAS, JR., JUDGE




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