                                                                                         08/20/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 30, 2019

                  STATE OF TENNESSEE v. MIMI BARRETT

                Appeal from the Criminal Court for Sullivan County
                    No. S66030 James F. Goodwin, Jr., Judge
                     ___________________________________

                           No. E2018-01643-CCA-R3-CD
                       ___________________________________


Mimi Barrett, Defendant, pled guilty to three counts of sale of a Schedule III controlled
substance within a drug-free zone (counts one, three, and five), three counts of delivery
of a Schedule III controlled substance within a drug-free zone (counts two, four, and six),
and one count of maintaining a dwelling where a controlled substance was kept or sold
(count seven). The trial court ordered Defendant to serve concurrent sentences of two
years in the Tennessee Department of Correction for each conviction. On appeal,
Defendant argues that the trial court erred by ordering her to serve her sentence in the
Tennessee Department of Correction because the trial court incorrectly determined that
her convictions under the Drug-Free School Zone Act (“DFSZ Act”) made her ineligible
for community corrections. After a thorough review of the facts and applicable case law,
we conclude that the trial court properly denied community corrections on the ground
that Defendant was convicted under the Drug-Free School Zone Act. We affirm the
judgments of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.

William Kennedy, Blountville, Tennessee, for the appellant, Mimi Barrett.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Peter Filetti,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                      OPINION
                          Factual and Procedural Background

       On January 27, 2016, the Sullivan County Grand Jury indicted Defendant and Co-
defendant, Robert Diggs, with three counts of sale of a Schedule III controlled substance
within a drug-free zone (counts one, three, and five), three counts of delivery of a
Schedule III controlled substance within a drug-free zone (counts two, four, and six), and
one count of maintaining a dwelling where a controlled substance was kept or sold (count
seven).

       On February 2, 2018, Defendant entered an open guilty plea to all seven counts of
the indictment with Defendant applying for judicial diversion. Under the terms of the
plea agreement, count two merged with count one, count four merged with count three,
and count six merged with count five. The trial court accepted Defendant’s guilty plea
and scheduled a sentencing hearing.

        On August 24, 2018, the trial court held a sentencing hearing. Defendant testified
that she lived with Co-defendant Diggs and his minor son. She explained that she
received disability payments for a mental disability from PTSD and anxiety. Defendant
testified that she regretted her actions that were the basis of the current offenses and that
she was “really scared” about the prospect of receiving a sentence of confinement. She
stated that, if the trial court ordered her to serve her sentence on community corrections,
she would be able to complete the requirements of the program.

       On cross-examination, Defendant agreed that she received judicial diversion for a
theft conviction in 2013. She also agreed that she violated the terms of her probation for
that conviction, and the trial court revoked her diversion. Defendant asserted that she
completed other sentencing requirements for her previous theft conviction. She agreed
that she was still serving a probated sentence for the prior theft conviction. The trial
court deferred from announcing its ruling until a later hearing.

       On August 31, 2018, the trial court addressed the factors set out in State v.
Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App. 1998), and concluded that
in Defendant’s case, the factors supported the denial of judicial diversion. The trial court
also addressed whether Defendant was eligible to serve her sentence on community
corrections:

             Now, we turn to community corrections and there’s no doubt that the
       2009 case of State v. Johnson says that if a person is eligible under 40-36-
       106(a) which means that basically it’s a person who without this option
       would be incarcerated in a correctional institution; (b) persons who are
                                            -2-
convicted of property related or drug and alcohol related felony offenses or
other felony offenses not involving crimes against a person, persons who
are convicted of nonviolent felonies, persons convicted of felony offenses
for the use or possession of a weapon was not involved and persons who do
not demonstrate a past or present pattern of behavior indicating violence,
persons who do not demonstrate a pattern of committing violence, then they
would be an eligible person for community corrections under 40-36-106(a),
and the Johnson case stands for the proposition that you do not have to be
eligible for probation in order to qualify for community corrections under
that subpart of that statute. They do say that to come in under special
needs, which is 40-36-106(c) that you must first be eligible for regular
probation, so that’s what the Johnson case stands for.

        In State v. Dycus the Tennessee Supreme Court from October ----
well, in a January 23rd, 2015 opinion in determining whether or not the
mandatory minimum service requirement of the drug-free school zone act
rendered offenses under the act ineligible for judicial diversion. Well, that
was the question and on page ---- well, I’m going to say page 9 of the
Lex[i]s printout of that case which would have been page 925 of the actual
reported opinion. The Supreme Court, who was it, Chief Justice Jeffrey
Bivins authored the opinion, says on page 925, “With the mandatory
minimum service provision of the drug-free school zone act the general
assembly has declared specifically and [unambiguously] that defendants
being sentenced for committing drug offenses in a school zone shall serve
the entire minimum term of years in the defendant’s sentencing range.[”] . .
. “Accordingly we have held that defendants sentenced under the act to the
minimum term in their sentencing range will serve literally 100% of their
sentences without the benefit of parole or sentence reduction credits.
Likewise a defendant sentenced under the act required to serve the entire
term of the applicable minimum sentence clearly would be ineligible for
alternative sentences in lieu of confinement such as probation or
community corrections.” And under the community corrections the statutes
listed are 40-36-106 and 40-36-104(c). Then they distinguish judicial
diversion because ---- when you boil it all down it’s because there’s no ----
because the statute says sentenced under this act and in diversion cases
you’re not sentenced. So you wouldn’t be sentenced under the act but
that’s how they ultimately arrive at their conclusion that diversion cases are
still applicable in the drug-free school zone act counts, so Dycus appears to
conflict with counsel. The holding in Johnson is what it says. What I just



                                    -3-
        read in Dycus is obviously (inaudible)1 because they weren’t actually
        addressing whether someone was eligible for community corrections with
        regard to the drug-free school zone act. However, that (inaudible) is a
        Tennessee Supreme Court opinion. This Court finds that because
        [Defendant] is being sentenced under the Tennessee drug-free school zone
        act that she would not be eligible for probation or community corrections.

       The trial court stated that it reviewed the presentence report and the evidence
introduced at the sentencing hearings. The trial court ordered Defendant to serve a
sentence of two years each for counts one, three, five, and seven, noting that counts two,
four, and six had merged. The trial court ordered the sentences to run concurrently with
each other. Lastly, the trial court denied community corrections and ordered Defendant
to serve her sentence in the Tennessee Department of Correction. Thus, Defendant
received a total effective sentence of two years to serve in the Tennessee Department of
Correction.

        Defendant now timely appeals the trial court’s decision.2

                                               Analysis

       On appeal, Defendant contends that the trial court incorrectly applied dictum from
State v. Dycus, 456 S.W.3d 918, 925 (Tenn. 2015), and abused its discretion by denying
Defendant’s request to receive community corrections. Defendant notes that the DFSZ
Act was enacted after the community corrections statute was enacted. Thus, Defendant
asserts that the Tennessee General Assembly would have included in the plain language
of the DFSZ Act that individuals convicted under the Act are not eligible for community
corrections if the legislature had intended the two statutes to be interpreted in that
manner. The State responds that the Tennessee Supreme Court has interpreted the DFSZ
Act as requiring mandatory incarceration in Dycus, 456 S.W.3d at 925, and Davis v.
State, 313 S.W.3d 751, 764 (Tenn. 2010). Additionally, the State argues that the phrase
“to serve” in section 39-17-432(c) “implicitly” means that defendants convicted of
violating the DFSZ Act are not eligible for community corrections.

      When the record clearly establishes that the trial court imposed a sentence within
the appropriate range after a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of

        1
         Defendant asserts that the inaudible word was “dictum[.]”
        2
        Defendant’s notice of appeal was filed prematurely, but pursuant to Tennessee Rule of Appellate
Procedure 4(d) we will treat it as filed after the judgments were entered. See State v. Jason Peter Meeks,
No. M2011-01134-CCA-R3-CD, 2012 WL 3085563, at *1 n.1 (Tenn. Crim. App. July 31, 2012), no
perm. app. filed.
                                                  -4-
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). To facilitate meaningful appellate review, the trial court must state on
the record the factors it considered and the reasons for imposing the sentence chosen.
Tenn. Code Ann. § 40-35-210(e) (2018); Bise, 380 S.W.3d at 706. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401 (2018), Sentencing Comm’n Cmts.

       The intent of the Community Corrections Act was to “[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) (2018). Eligible offenders under the
Community Corrections Act include: “[p]ersons who, without this option, would be
incarcerated in a correctional institution”; “[p]ersons who are convicted of property-
related, or drug- or alcohol-related felony offenses or other felony offenses not involving
crimes against the person as provided in title 39, chapter 13, parts 1-5”; “[p]ersons who
are convicted of nonviolent felony offenses”; “[p]ersons who are convicted of felony
offenses in which the use or possession of a weapon was not involved”; “[p]ersons who
do not demonstrate a present or past pattern of behavior indicating violence”; and
“[p]ersons who do not demonstrate a pattern of committing violent offenses.” Id. § 40-
36-106(a)(1)(A)-(F) (2018).

       Simply because an offender meets the minimum requirements under the
Community Corrections Act “does not mean that he is entitled to be sentenced under the
Act as a matter of law or right.” State v. Ball, 973 S.W.2d 288, 294 (Tenn. Crim. App.
1998) (citing State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987)). Instead,
the Act’s criteria “shall be interpreted as minimum state standards, guiding the
determination of eligibility of offenders under this chapter.” Tenn. Code Ann. § 40-36-
106(d) (2018).

       An individual violates the DFSZ Act by knowingly selling or delivering a
controlled substance “within one thousand feet (1,000’) of the real property that
comprises a . . . recreational center or park[.]” Tenn. Code Ann. § 39-17-432(b)(1)
(2015).

              Notwithstanding any other law or the sentence imposed by the court
      to the contrary, a defendant sentenced for a violation of [the DFSZ Act]
      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.

                                           -5-
Tenn. Code Ann. § 39-17-432(c) (2015). In Davis, the Tennessee Supreme Court stated
that “defendants dealing drugs in school zones who are sentenced to the minimum term in
their sentencing range will serve literally 100% of their sentences.” 313 S.W.3d at 764.

       In Dycus, the supreme court considered “whether the mandatory minimum service
requirement of . . . []the [DFSZ Act] renders offenses under that act ineligible for judicial
diversion.” 456 S.W.3d at 920. The Tennessee Supreme Court stated that, similar to the
fact that defendants sentenced under the DFSZ Act do not receive sentence reduction
credits, “a defendant sentenced under the Act, required to serve the entire term of the
applicable minimum sentence, clearly would be ineligible for alternative sentences in lieu
of confinement such as probation[] . . . or community corrections[.]” Id. at 925. The
court then discussed the interaction between judicial diversion and the DFSZ Act and
held that “the mandatory minimum service provision of the Drug-Free School Zone Act
does not render offenses committed under the Act ineligible for judicial diversion.” Id. at
929.

        Turning to cases decided by this court that discuss the DFSZ Act as applied to
alternative sentencing, in State v. Jeffrey B. Lindemeyer, No. 03C01-9808-CR-00284,
1999 WL 826026, at *1 (Tenn. Crim. App. Oct. 18, 1999), perm. app. denied (Tenn. Apr.
17, 2000), this court affirmed the trial court’s determination that the defendant was not
eligible for community corrections because the DFSZ Act “required incarceration for at
least the minimum sentence[.]” Specifically, this court addressed the issue of whether the
phrase “to serve at least the minimum for [his] appropriate range of sentence” requires
mandatory incarceration. Id. at *3. This court stated:

               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.



                                            -6-
Id. at *4. This court concluded that “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.” Id.

       In State v. Charles Orlando Fields, the defendant argued that the trial court
imposed an excessive sentence by denying community corrections for his convictions of
“selling one-half gram or more of cocaine within one thousand feet of a school, a Class A
felony, and one count of distributing one-half gram or more of cocaine within one
thousand feet of a school, a Class A felony.” W2001-00124-CCA-R3-CD, 2002 WL
1558575, at *1 (Tenn. Crim. App. Jan. 2, 2002), perm. app. denied (Tenn. May 28,
2002). This court applied a presumption of correctness to the trial court’s sentencing
determination and affirmed the sentence because the trial court “imposed the sentence in
conformity with the sentencing laws.” Id. at *7.

       We rely on this court’s previous decision in Jeffrey B. Lindemeyer for instruction
in this case. We conclude that the trial court did not abuse its discretion by denying
community corrections on the grounds that Defendant had been convicted under the
DFSZ Act. Because previous panels of this court have concluded that a defendant
convicted of violating the DFSZ Act must serve the sentence in confinement, the trial
court properly applied precedent to Defendant’s case. Defendant is not entitled to relief
on this ground.

       Here, Defendant received a sentence of two years for each conviction. Selling or
delivering a Schedule III controlled substance is a Class D felony, see Tenn. Code Ann. §
39-17-417(d)(1) (2015), and a Range I sentence for a standard offender is between two
and four years. See Tenn. Code Ann. § 40-35-112(a)(4) (2018). Similarly, maintaining a
dwelling where a controlled substance was kept or sold is a Class D felony. See Tenn.
Code Ann. § 53-11-401 (2015). Because Defendant’s sentences were within the
appropriate range, the trial court’s sentencing determinations are entitled to a
presumption of reasonableness, and we will not reverse absent an abuse of discretion. As
we have previously concluded, the trial court did not err in denying community
corrections on the ground that Defendant was convicted under the DFSZ Act. Therefore,
the trial court did not abuse its discretion by ordering Defendant to serve her total
effective sentence of two years in confinement.

                                       Conclusion

      After reviewing the facts and applicable case law, we affirm the trial court’s denial
of community corrections.
                                                _________________________________
                                                ROBERT L. HOLLOWAY, JR., JUDGE
                                           -7-
