         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                            FILED
                          AT KNOXVILLE
                                                           October 18, 1999

                         JUNE 1999 SESSION                Cecil Crowson, Jr.
                                                         Appellate Court Clerk




STATE OF TENNESSEE,         *    C.C.A. # 03C01-9808-CR-00284

            Appellee,       *    KNOX COUNTY

VS.                         *    Honorable Mary Beth Leibowitz, Judge

JEFFREY B. LINDEMEYER,      *    (Selling Drugs In School Zone)

            Appellant.      *



FOR THE APPELLANT:               FOR THE APPELLEE:

ROBERT A. COLE                   PAUL G. SUMMERS
Attorney At Law                  Attorney General & Reporter
3715 Powers Street
Knoxville, TN 37918              TODD R. KELLEY
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 2nd Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493

                                 RANDALL EUGENE NICHOLS
                                 District Attorney General

                                 C. LEON FRANKS
                                 Assistant District Attorney
                                 P. O. Box 1468
                                 Knoxville, TN 37901-1468




OPINION FILED: _______________



AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                            OPINION

        The defendant, Jeffrey B. Lindemeyer, pleaded guilty to selling within a

school zone a Schedule IV controlled substance and between 0.5 of an ounce

and ten pounds of a Schedule VI controlled substance. The defendant was

sentenced as a Range I offender. The Schedule IV violation constituted a Class

C felony, and the Schedule VI violation constituted a Class D felony.1 Although

the defendant met the minimum eligibility requirements for Community

Corrections, the trial court determined that the Drug-Free School Zone Act

(School Zone Act) required incarceration for at least the minimum sentence and

therefore imposed a three-year sentence for the Class C offense and a two-year

sentence for the Class D offense, to be served concurrently for an effective

sentence of three years in the Department of Correction. The defendant appeals,

asserting that the School Zone Act does not preclude Community Corrections, in

lieu of incarceration, for the mandatory minimum sentence. We AFFIRM the trial

court’s sentence.



                                         BACKGROUND

        The defendant pleaded guilty to two felony violations of the Tennessee

Drug Control Act. Both offenses occurred within a “school zone” as defined by

the School Zone Act. The defendant met the minimum eligibility requirements

for a Community Corrections sentence, and the trial court would have imposed

such sentence but for the School Zone Act.



                                             ANALYSIS

        Since no located case addresses the School Zone Act in any context, this

appeal presents a case of first impression. The facts are not in dispute.




         1
           The S chedu le IV violation w ould usu ally constitute a Class D felony; the Sc hedule V I, a
Class E felony; the Sc hedule IV violation, a Cla ss D fe lony. See Tenn. Code Ann. § 39-17-
417(g)(1), (e)(2). However, the School Zone Act raises a violation of Tennessee Code Annotated
§ 39-17 -417, by on e grade . See Tenn. Code A nn. § 39-17-432(b).

                                                  -2-
        The defendant asserts that the School Zone Act did not bar his receiving

a Community Corrections sentence and maintains that the CCA, enacted in

1985, required the trial court to consider such sentencing:

        An offender who meets all of the following minimum criteria shall be
        considered eligible for punishment in the community under the
        provisions of [the CCA] . . . : Notwithstanding any other provision of
        law to the contrary, the court is authorized to sentence an eligible
        defendant as defined in this section to any appropriate community-
        based alternative to incarceration provided in accordance with the
        terms of this chapter; and under such additional terms and
        conditions as the court may prescribe, in lieu of incarceration in a
        state penal institution or local jail or workhouse.


Tenn. Code Ann. § 40-36-106(a), (e)(1) (emphasis added).



            The trial court, however, concluded that the School Zone Act required

incarceration for at least the minimum sentence within the range for the offenses.

The School Zone Act, enacted in 1995, establishes “the grounds or facilities of

any school or within one thousand feet (1,000') of the real property that

comprises a public or private elementary school, middle school or secondary

school . . . ” as a drug-free zone. Tenn. Code Ann. § 39-17-432(b). The statute

then raises the felony offense grade for violations of Tennessee Code Annotated

§ 39-17-4172 by one step. See Tenn. Code Ann. § 39-17-432(b). Interpretation

of subsequent language is the crux of this dispute:

        Notwithstanding any other provision of 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 such defendant’s appropriate range of
        sentence.


Tenn. Code Ann. § 39-17-432(c) (emphasis added).



        The defendant proposes that mandatory service of a minimum sentence

does not necessarily entail incarceration for that term but may include


        2
           That statute establishes the felony grades for man ufacture, delivery, or sale of a
controlled substance and for possession of a controlled substance with intent to sell, deliver, or
manufacture.

                                                 -3-
Community Corrections, especially since the CCA requires consideration of such

alternative sentencing if a defendant meets the minimum eligibility criteria.

He also notes that the School Zone Act specifically prohibits release eligibility

status or parole, see Tenn. Code Ann. § 39-17-432(d), or action by either the

governor’s office or by the board of probation and parole, see Tenn. Code Ann. §

39-17-432(e), from prematurely releasing a defendant from serving the minimum

sentence. The defendant contrasts these explicitly articulated proscriptions

against the absence of any similar language addressing the CCA.



        The defendant’s appeal, predicated on an alleged conflict between the

Acts, presents an issue of statutory construction. Courts must construe statutes

as they find them, see Watts v. Putnam County, 525 S.W.2d 488, 494 (Tenn.

1975), and must grant their fullest possible effect, neither unduly restricting them

nor expanding them beyond intended scope. See Wilson v. Johnson County,

879 S.W.2d 807, 809 (Tenn. 1994). The “cardinal rule” of statutory construction

“is to ascertain and give effect to the intent and purpose of the Legislation [sic] in

relation to the subject matter of the legislation . . . ,” Rippeth v. Connelly, 447

S.W.2d 380, 381 (Tenn. Ct. App. 1969), and the intent and purpose of the

legislation is expressed by “the natural and ordinary meaning of the language

used, when read in the context of the entire act or statute, without any forced or

subtle construction to limit or expend [sic] the import of that language.” Oliver v.

King, 612 S.W.2d 152, 153 (Tenn. 1981). Therefore, when construing statutes

this Court has a “duty to reconcile inconsistent or repugnant provisions of a

statute to construe a statute so that no part will be inoperative [,] superfluous,

void or insignificant. Effect must be given to every word, phrase, clause and

sentence of the act in order to achieve the legislative intent . . . . “ Dingman v.

Harvell, 814 S.W.2d 362, 366 (Tenn. Ct. App. 1991).




                                          -4-
        We must also consider the Code’s specific instruction regarding criminal

statute interpretation:

        The provisions of this [Criminal Code] shall be construed
        according to the fair import of their terms . . . to promote justice,
        and effect the objectives of the criminal code.

Tenn. Code Ann. § 39-11-104.



        Further, courts must avoid constructions that conflict one statute against

another. See State ex rel. Metro. Gov’t v. Spicewood Creek Watershed Dist.,

848 S.W.2d 60, 62 (Tenn. 1993). If conflict exists, courts must “search for and

give the fullest possible effect to the legislative purpose underlying both

statutes.” Pacific Eastern Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 954

(Tenn. Ct. App. 1995). 3



        We begin by identifying the legislative intent of the Acts. The General

Assembly left no room for doubt regarding their goal:

        It is the intent of this section to create Drug-Free School Zones for
        the purpose of providing all students in this state an environment in
        which they can learn without the distraction and dangers that are
        incident to the occurrence of drug activity in or around school
        facilities. The enhanced and mandatory minimum sentences
        required by [the School Zone Act] for drug offenses occurring in a
        Drug-Free School Zone are necessary to serve as a deterrent to
        such unacceptable conduct. . . . A defendant [violating the statute]
        shall be required to serve at least the minimum sentence for such
        defendant’s appropriate range of sentence.”


Tenn. Code Ann. § 39-17-432(a), (c) (emphasis added).



        The CCA seeks to:




        3
            In some circumstances, courts of this state have resolved statutory conflicts with the
doctrine o f repeal by im plication in fav or of the m ore rece nt of the two statutes. See Pac ific
Eastern Corp., 902 S.W.2d at 946. The more recent statute must “cover [ ] the whole subject
matter of an earlier act,” and it must be “evident that [the more recent statute] was intended to be
a revision of, or substitute for, the earlier act,” such that the more recent, even absent express
languag e repea ling the prior a ct, acco mplish es just tha t effect. Melton v . State, 23 S.W.2d 662,
663 (T enn. 193 0). This d octrine is d isfavore d, see Pac ific 902 S.W.2d at 984, and we need not
apply it in this case.

                                                  -5-
       [e]stablish a policy within the state to punish selected, nonviolent
       felony offenders in front-end community based alternatives to
       incarceration, thereby reserving secure confinement facilities for
       violent felony offenders; . . .

Tenn. Code Ann. § 40-36-103(1). The CCA “shall be interpreted as minimum

state standards, guiding the determination of eligibility of offenders under this

chapter.” Tenn. Code Ann. § 40-36-106(d). Meeting the statutory minimum

eligibility criteria does not guarantee a Community Corrections sentence in lieu of

incarceration. See State v. Grigsby, 957 S.W.2d 541, 547 (Tenn. Crim. App.

1997); State v. Grandberry, 803 S.W.2d 706, 707 (Tenn. Crim. App. 1990). In

contrast, a defendant sentenced under the School Zone Act must serve the

minimum sentence for the offense despite any “sentence imposed by the court to

the contrary.” Tenn. Code Ann. § 39-17-432(c).



       To resolve the conflict, we focus on the legislative intent in requiring a

defendant “to serve at least the minimum for [his] appropriate range of

sentence”: Does this “service” equate to incarceration?



       A detailed discussion of the Tennessee Criminal Reform Sentencing Act

of 1989 (Sentencing Act) is outside the scope of this opinion, but representative

language within that Act assists our analysis. Regarding the Sentencing Act’s

“appropriate range of sentence,” we note that “range,” a determination made by

the trial court based on a defendant’s prior record, subdivides the sentence for a

given offense into discrete parameters, each with an upper and a lower limit.

See Tenn. Code Ann. § 40-35-101, sentencing comm’n comments; see also

Tenn. Code Ann. § 40-35-112 (establishes ranges of sentences for the different

classes of felony offenses). For example, punishment for the defendant’s Class

C felony conviction must be not less than three years nor more than fifteen

years. See Tenn. Code Ann. § 40-35-111(b) (3). The defendant, a Range I

offender, receives a sentence not exceeding six years but not less than three

years for this conviction. See Tenn. Code Ann. § 40-35-112 (a) (3). Also, a trial

                                         -6-
court may find an defendant to be “especially mitigated” and reduce the

minimum Range I sentence by ten percent.4 See Tenn. Code Ann. § 40-35-109

(a), (b). Further, absent enhancing or mitigating factors, the presumptive

sentence for all but Class A felonies is “the minimum sentence in the range.”

See Tenn. Code Ann. § 40-35-210.



        In short, the Sentencing Act’s scheme establishes a “minimum sentence”

appropriate to the circumstances of a felony conviction. A defendant’s

subsequent service may include incarceration, probation, Community

Corrections, or split confinement. See Tenn. Code Ann. § 40-35-104.

Therefore, the School Zone Act requires more than mere service of the minimum

sentence by means including, but not limited to, incarceration: otherwise, the

statute is redundant.



        The General Assembly, however, clearly distinguished specific

defendants for punishment more extreme and certain than generally provided for

in the Sentencing Act. In fact, certain provisions distinguish the School Zone Act

from the Sentencing Act’s standard scheme, thereby precluding redundancy.

Two provisions prevent either (1) release eligibility status or parole or (2) action

by the governor’s office or the board of probation and parole from releasing a

defendant from incarceration before the expiration of the minimum sentence.

The defendant notes that the School Zone Act does not address the CCA in this

manner and argues that this silence implies that Community Corrections is a

viable alternative. The relevant inquiry becomes: Does the legislature’s omitting

reference to the CCA create a further subdivision of offenders?




        4
          The trial court may also reduce the release eligibility date by twenty percent, or reduce
both the m inimum senten ce and the releas e date by the stated pe rcentag es. See Tenn. Code
Ann. § 40-35-109(b).

                                                -7-
        The defendant’s argument requires an overly restrictive reading of the

School Zone Act. However, principles of statutory construction compel our

interpreting a statute “not from special words in the single sentence or section,

but from the statute taken as a whole and reviewing the legislation in light of its

general purposes.” Tidwell v. Servonmation-Willoughby Company, Inc., 483

S.W.2d 98, 100 (Tenn. 1972).



        Read as a whole, the fair import of the School Zone Act is a legislative

goal of deterrence through guarantee of minimum incarceration terms for the

qualifying offenses. After creating a distinct subdivision of offenders based on

specific illicit activity, the School Zone Act both raises the offense classification

by one grade, and thereby the minimum punishment range, and requires the trial

court’s imposing at least the minimum sentence. The School Zone Act then

retracts some discretion generally granted a trial court in sentencing matters: A

defendant must serve his minimum sentence “[n]otwithstanding any . . . .

sentence imposed by the court to the contrary.” Tenn. Code Ann. § 39-17-

432(c). We read the subsequent proscriptions against avoiding the minimum

sentence by the enumerated means as emphasizing the required service of a

mandatory incarceration, rather than as impliedly carving out an exception to the

rule by omission. The overall statute speaks for a mandatory incarceration.5



        In conclusion, we find that the General Assembly intended that the School

Zone Act achieve more than a “minimum sentence,” because the Code already

provides minimum sentences for felony offenses. A comprehensive reading of

this Act indicates that our legislature intended minimum terms of incarceration,

not minimum terms for incarceration. Absent specific language from either the

General Assembly or the Tennessee Supreme Court, we decline to create an

        5
          Since we find the statute to unambiguously require incarceration for a minimum
sentence, we need not apply the “general rule of statutory construction that ambiguity in criminal
statutes must be con strued in favor of the defendant.” State v. Blo uvett, 904 S.W.2d 111, 113
(Tenn. 1995).

                                                -8-
escape hatch for those defendants clearly qualifying for enhanced punishment

and sentencing. To hold otherwise would negate the General Assembly’s explicit

goal of increased deterrence and heightened protection for youths congregated

in school environments.



                                   CONCLUSION

       We AFFIRM the trial court’s sentence because we conclude that the

General Assembly intended that the language regarding service of the entire

minimum sentence for a conviction under the School Zone Act mandates

incarceration for at least that term.




                                         ________________________________
                                         JOHN EVERETT W ILLIAMS, Judge



CONCUR:




_________________________________
JOHN H. PEAY, Judge




_________________________________
DAVID G. HAYES, Judge




                                        -9-
