State of Tennessee v. Jeffrey Stanley Mitchell

01/09/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 20, 2016
STATE OF TENNESSEE v. JEFFREY STANLEY MITCHELL
Appeal from the Criminal Court for Knox County
Nos. 103163, 103177 Scott Green, Judge
No. E2016-00601-CCA-R3-CD
The defendant, Jeffrey Stanley Mitchell, appeals his Knox County Criminal Court jury
convictions of one count of facilitation of the possession with intent to sell more than 26
grams of cocaine within a drug-free school zone, one count of third offense simple
possession of marijuana, two counts of the facilitation of the sale of .5 grams or more of
cocaine within a drug-free school zone, and two counts of the sale of .5 grams or more of
cocaine within a drug free school zone, arguing that the evidence was insufficient to
support his convictions. Because our supreme court has determined that the provisions of
the Drug-Free School Zone Act do not apply to convictions of facilitation, the sentences
imposed for the defendant’s convictions of facilitation must be reversed and the case
remanded for resentencing on those counts. The judgments of the trial court are affirmed
in all other respects.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed
and Remanded in Part
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.
Alexander Brown, Knoxville, Tennessee, for the appellant, Jeffrey Stanley Mitchell.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and Sean McDermott,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant’s convictions in case number 103177 relate to the sale of
cocaine to confidential informant Laquinton Pettway on four occasions at the defendant’s
Woodbine Avenue address in Knoxville. The convictions in case number 103163 relate
to the execution of a search warrant at the Woodbine Avenue residence on September 12,
2013.
At trial, Mr. Pettway testified that he began working as a confidential
informant with Knoxville Police Department (“KPD”) Officer Adam Broome after
Officer Broome arrested Mr. Pettway for selling cocaine. Mr. Pettway agreed to work as
an informant in exchange for leniency in relation to his charges of violating his probation
and selling cocaine.
On August 7, 2013, Officer Broome searched Mr. Pettway’s person and his
vehicle and then provided Mr. Pettway with $100 in marked money to purchase crack
cocaine. Mr. Pettway was outfitted with audio and video recording equipment. Mr.
Pettway then drove to a residence at 2544 Woodbine Avenue where he knew he could
purchase drugs from a man he knew as “Jamaica” or one he knew as “Boss.” He entered
the residence through a side door and walked to a table where Boss and other men were
seated. Mr. Pettway purchased cocaine “[a]t the table.” Mr. Pettway identified the
defendant from the video recording of the transaction as the man he knew as Boss. He
said that the defendant appeared to sleep during the transaction. The recording of this
transaction was played for the jury. After purchasing the cocaine, Mr. Pettway turned
over the drugs and the recording equipment to Officer Broome.
Mr. Pettway returned to the Woodbine Avenue residence to purchase drugs
on August 9, 2013. Again, Officer Broome searched Mr. Pettway’s person and his
vehicle and provided him with marked currency and recording equipment. Mr. Pettway
again entered the residence through the side door, but on this occasion, he purchased
cocaine directly from the defendant, who was seated in the corner of the room. The video
recording of this transaction was played for the jury. Mr. Pettway said that he had never
purchased cocaine directly from the defendant before and that he had always purchased
from “Jamaica.”
Mr. Pettway followed the same procedure when making a controlled
purchase of $125 worth of crack cocaine at the Woodbine Avenue residence on August
28, 2013. When he entered the residence on that occasion, two men were at the kitchen
counter bagging up crack cocaine. He explained that drug dealers would use a razor
blade to shave smaller sale amounts of crack cocaine from a larger “cookie” of crack
cocaine. He said that $125 would buy 2 to 3 grams of crack cocaine from Boss and that
that amount, which was typically the size of a quarter, was referred to as an eight ball.
Mr. Pettway would then break down that amount into “twenties,” which he explained was
a $20 rock of cocaine. He said that he was “supposed to get five” $20 rocks from two
grams of cocaine. Mr. Pettway purchased the cocaine from one of the men bagging the
cocaine at the counter. The recording of this transaction was played for the jury. He said
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that it was not unusual for several individuals to be selling cocaine inside the Woodbine
Avenue residence. Mr. Pettway turned the drugs and recording equipment over to
Officer Broome.
Mr. Pettway initiated another controlled buy from the Woodbine Avenue
residence on September 10, 2013. He employed the same procedure as he had in the
previous buys. On that day, the defendant personally bagged and sold the crack cocaine
to Mr. Pettway. Also on that day, Mr. Pettway inquired about purchasing a silver
revolver with a black grip from the defendant, but the defendant said that the firearm was
not for sale. The recording of this transaction was played for the jury.
The parties stipulated that the residence located at 2544 Woodbine Avenue
is within 1,000 feet of Knoxville Baptist Christian School, a private elementary school,
and God’s Creative Enrichment Center, a child care agency. The parties also stipulated
that Tennessee Bureau of Investigation (“TBI”) testing established that the substance
purchased by Mr. Pettway on each occasion was cocaine. The TBI laboratory report,
which was admitted into evidence and published to the jury, established that the drugs
purchased by Mr. Pettway on August 7, 2013, and August 9, 2013, weighed 2.20 grams.
The drugs purchased on August 28, 2013, weighed 2.08 grams, and the drugs purchased
on September 10, 2013, weighed 2.17 grams.
During cross-examination, Mr. Pettway acknowledged that the State had
agreed that the sentence imposed for his most recent conviction of selling cocaine would
be served concurrently to the sentence he was serving for his previous conviction of
selling cocaine. Mr. Pettway said that although he had approached Officer Broome about
becoming an informant, it was actually Officer Broome who suggested that he attempt to
buy drugs from the defendant at the Woodbine Avenue address.
KPD Officer Adam Broome testified that “during the course of a debrief”
with Mr. Pettway, Mr. Pettway mentioned the defendant by the street name of Boss, and
the information provided by Mr. Pettway related to the defendant “correlated with some
information” that the KPD had received from other sources. After verifying the
information provided by Mr. Pettway, Officer Broome had Mr. Pettway participate in
four controlled buys from the Woodbine Avenue residence. Officer Broome explained
for the jury the process of arranging and completing a controlled buy. He stated that the
informant and the informant’s vehicle were searched for money and contraband, that
KPD officers established the route that the informant would travel to the appointed
location, that the informant was outfitted with recording equipment and provided with
currency that had been previously photographed by the KPD, and that then the informant
was escorted to the appointed location. Officer Broome said that KPD officers
maintained constant surveillance of Mr. Pettway during each of the transactions at issue.
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Following each purchase, Mr. Pettway turned over the drugs and the recording
equipment, and Officer Broome again searched Mr. Pettway’s person and vehicle for
drugs or contraband. Mr. Pettway participated in four controlled buys from the
Woodbine Avenue address following this procedure.
After each controlled buy, Officer Broome weighed and field tested the
substance purchased by Mr. Pettway. On each occasion, the substance tested positive for
the presence of cocaine. Officer Pettway then sealed the substance in an evidence
envelope and sent it to the TBI for testing.
Based on the evidence received during the four controlled buys, Officer
Broome obtained a warrant to search the Woodbine Avenue residence. Officers from the
KPD executed the warrant on September 12, 2013.
Upon entering the residence, officers found several individuals inside the
house and eventually located the defendant seated on a bed in one of the bedrooms.
Officers discovered two loaded handguns under the pillow on the bed and an SKS assault
rifle “between the mattress and box spring.” In that same bedroom, officers found a
“Hooka” that contained marijuana residue; a whisk that tested positive for the presence of
cocaine, which indicated that it had been used in the process of cooking crack cocaine; a
magazine with ammunition in it; and a safe. The safe contained cash, cellular telephones,
and a vehicle title bearing the defendant’s name and the Woodbine Avenue address. The
defendant also had cash on his person, including bills from the controlled buys.
Officers found individually-packaged bags of crack cocaine in amounts
similar to those purchased by Mr. Pettway throughout the kitchen. Officers also found
three sets of digital scales, a marijuana cigarette, two pill bottles that bore the defendant’s
name and the Woodbine Avenue address, and a large paper bag in the kitchen. Inside the
bag, officers found powder cocaine and “a cookie of [c]rack [c]ocaine,” which, he
explained, was powder cocaine that had been turned into crack cocaine but had not yet
been broken and packaged for resale. Officers also discovered several pill bottles that
contained crumbs of crack cocaine. Throughout the kitchen area, officers discovered
cocaine in various stages of production and packaging. TBI testing established that the
aggregate amount of cocaine in both crack and powder form found during the search was
well in excess of 100 grams.
During cross-examination, Officer Broome insisted that Mr. Pettway
mentioned the defendant during their first debriefing, referring to the defendant by his
street name. Officer Broome said that he did not try to ascertain who owned the
Woodbine Avenue residence. He admitted that he was unable to verify the identity of the
two men who were seen packaging drugs for resale and who actually sold drugs to Mr.
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Pettway on one occasion. Officer Broome said that although five or six people were
present at the residence when he executed the search warrant, only the defendant and his
daughter, Jalisa Ross, were charged with any crimes; Ms. Ross was charged with
possession of cocaine based upon officers’ discovery inside her purse of a pill bottle that
contained crack cocaine. Officers found a “wad” of cash lying in the living room area of
the house “as if somebody had thrown it,” and some of the bills matched those provided
to Mr. Pettway for the September 10, 2013 controlled buy.
The defendant testified that following his release from federal prison in
2011, he began buying cars at auction and reselling them as a means of making money.
He also performed some mechanic work. The defendant said that he visited the
Woodbine Avenue residence to smoke marijuana, play video games, and visit his
children, who lived there with his estranged wife, Latronda Brenner. The defendant said
that Ms. Brenner rented the Woodbine Avenue residence while he lived at 408 Oakland
Street. He claimed that officers knew that he lived on Oakland Street.
The defendant admitted that drugs were sold at the Woodbine Avenue
residence but denied participating in the drug sales. He said, “[T]hey did what they did,
but I had no parts of it, so I figured if I didn’t mess with nothing or touch nothing, that I
had nothing to worry about.” The defendant insisted that the drugs and guns found
throughout the house belonged to Ms. Brenner’s brother, Savante Hinton. He maintained
that it was not his hand that could be seen handing drugs to Mr. Pettway during the
second controlled buy, saying that he could not have reached that far across the table.
The defendant said that on the day the search warrant was executed, he had
gone to the Woodbine Avenue residence to be with his children. He recalled that his feet
were hurting because of his gout, so he took some medication and went to lie down in the
bedroom where his wife’s six-year-old niece usually slept. He said that he woke up
shortly before the police came in and went to the restroom. He said that he heard the
sound of a percussion device and then heard the officers shouting. He stepped into the
hall, and his wife’s niece jumped into his arms. An officer then came into the hall,
instructed the defendant to put one of his hands up, and then instructed him to sit on the
bed in the bedroom.
The defendant testified that he was carrying $1,240 in cash in his pocket on
the day of the search because he intended to pay the rent for both his and Ms. Brenner’s
residences. He said that he used cash exclusively and that he did not have a bank account
because “any money that [he] put in the bank” was garnished to pay a child support
arrearage that accrued after “some of [his] baby mothers . . . got on support” while he was
incarcerated on a federal drug conviction.
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The defendant suggested that the KPD began investigating him only
because a woman named Kendra Williams, who had a reason to hold a grudge against the
defendant and Ms. Brenner, submitted a complaint to the KPD as retribution.
During cross-examination, the defendant acknowledged that he frequented
the Woodbine Avenue residence despite knowing that drugs were being sold there. He
admitted that the nearly 135 grams of cocaine, both in crack and powder form, discovered
during the search of the Woodbine Avenue residence was “a lot.” He also conceded that
the kitchen table, which was the center of all the drug transactions in the house, was
directly in front of his chair. Near the chair, officers found a pill bottle with crack
cocaine in it, an empty cigarette pack with crack cocaine in it, a plate with crack cocaine
crumbs on it, a razor blade with cocaine residue on it, a marijuana blunt, and a bag
containing over 100 grams of crack cocaine.
The defendant denied selling drugs to Mr. Pettway during any of the
controlled buys despite that the video recordings of the exchanges shows him doing just
that on two occasions. He claimed that Mr. Pettway was lying “to get his time cut.” He
acknowledged that many of his friends and family members sold drugs at the Woodbine
Avenue residence and that the nickname given to him by those people was “Boss.”
Prior to trial, the State dismissed count 7 of case number 103163. Based
upon the proof presented, the jury entered verdicts in case number 103163 as follows:
Count Charged Offense Conviction Offense
1 possession with intent to sell more facilitation of possession with intent to
than 26 grams of cocaine within 1,000 sell more than 26 grams of cocaine within
feet of a private elementary school 1,000 feet of a private elementary school
2 possession with intent to deliver more facilitation of possession with intent to
than 26 grams of cocaine within 1,000 deliver more than 26 grams of cocaine
feet of a private elementary school within 1,000 feet of a private elementary
school
3 possession with intent to sell more facilitation of possession with intent to
than 26 grams of cocaine within 1,000 sell more than 26 grams of cocaine within
feet of a child care agency 1,000 feet of a child care agency
4 possession with intent to deliver more facilitation of possession with intent to
than 26 grams of cocaine within 1,000 deliver more than 26 grams of cocaine
feet of a child care agency within 1,000 feet of a child care agency
5 possession of a firearm with the intent not guilty
to go armed during the commission of
a dangerous felony (possession with
intent to sell a controlled substance)
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after having been previously
convicted of a dangerous felony (1996
conspiracy to distribute cocaine)
6 possession of a firearm by a convicted not guilty
felon
8 simple possession of marijuana, third Same
offense
9 possession of drug paraphernalia not guilty
The jury entered verdicts in case number 103177 as follows:
Count Charged Offense Conviction Offense
1 delivery of .5 grams or more of facilitation of the delivery of .5 grams or
cocaine within 1,000 feet of a private more of cocaine within 1,000 feet of a
elementary school private elementary school
2 sale of .5 grams or more of cocaine facilitation of the sale of .5 grams or
within 1,000 feet of a private more of cocaine within 1,000 feet of a
elementary school private elementary school
3 delivery of .5 grams or more of facilitation of the delivery of .5 grams or
cocaine within 1,000 feet of a child more of cocaine within 1,000 feet of a
care agency child care agency
4 sale of .5 grams or more of cocaine facilitation of the sale of .5 grams or
within 1,000 feet of a child care more of cocaine within 1,000 feet of a
agency child care agency
5 delivery of .5 grams or more of same
cocaine within 1,000 feet of a private
elementary school
6 sale of .5 grams or more of cocaine same
within 1,000 feet of a private
elementary school
7 sale of .5 grams or more of cocaine same
within 1,000 feet of a child care
agency
8 delivery of .5 grams or more of same
cocaine within 1,000 feet of a child
care agency
9 sale of .5 grams or more of cocaine facilitation of the sale of .5 grams or
within 1,000 feet of a private more of cocaine within 1,000 feet of a
elementary school private elementary school
10 delivery of .5 grams or more of facilitation of the delivery of .5 grams or
cocaine within 1,000 feet of a private more of cocaine within 1,000 feet of a
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elementary school private elementary school
11 sale of .5 grams or more of cocaine facilitation of the sale of .5 grams or
within 1,000 feet of a child care more of cocaine within 1,000 feet of a
agency child care agency
12 delivery of .5 grams or more of facilitation of the delivery of .5 grams or
cocaine within 1,000 feet of a child more of cocaine within 1,000 feet of a
care agency child care agency
13 sale of .5 grams or more of cocaine same
within 1,000 feet of a private
elementary school
14 delivery of .5 grams or more of same
cocaine within 1,000 feet of a private
elementary school
15 sale of .5 grams or more of cocaine same
within 1,000 feet of a child care
agency
16 delivery of .5 grams or more of same
cocaine within 1,000 feet of a child
care agency
In case number 103163, the trial court merged counts 2, 3, and 4 into count 1. In case
number 103177, the court merged counts 2 through 4 into count 1; counts 5, 7, and 8 into
count 6; counts 10-12 into count 9; and counts 14-16 into count 13. Following a
sentencing hearing, the trial court imposed a sentence of 12 years to be served at 100
percent for the defendant’s conviction of facilitation of the possession with intent to sell
more than 26 grams of cocaine, a sentence of two years to be served at 30 percent for the
defendant’s conviction of third offense simple possession of marijuana, sentences of 12
years to be served at 100 percent for each of the defendant’s convictions of facilitation of
the sale of .5 grams or more of cocaine in a school zone, and sentences of 25 years to be
served at 100 percent for each of the defendant’s convictions of the sale of .5 grams or
more of cocaine in a school zone. The trial court ordered partially consecutive
sentencing for a total effective sentence of 27 years’ incarceration.
In this timely appeal, the defendant asserts that the evidence presented at
trial was insufficient to support his convictions. He argues that the testimony of the
State’s witnesses, particularly that offered by Mr. Pettway and Officer Broome, was
inconsistent.
Sufficiency
We review the defendant’s claim of insufficient evidence mindful that our
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standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).
When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.
“It is an offense for a defendant to knowingly . . . [d]eliver a controlled
substance; . . . [s]ell a controlled substance; or . . . [p]ossess a controlled substance with
intent to manufacture, deliver or sell the controlled substance.” T.C.A. § 39-17-
417(a)(2)-(4). A violation of this section with respect to .5 grams or more of cocaine, a
Schedule II controlled substance, see id. § 39-17-408(b)(4), is a Class B felony, see id. §
39-17-417(c)(1), unless it “occurs . . . within one thousand feet (1,000') of the real
property that comprises a public . . . elementary school,” when it “shall be punished one
(1) classification higher than is provided in § 39-17-417(b)-(i) for such violation,” see id.
§ 39-17-432(b). A violation involving an amount of cocaine in excess of 26 grams
committed in a drug-free school zone is a Class A felony that carries a fine of $200,000.
See id. § 39-17-417(i)(5); -432(b). A violation of this section with respect to less than .5
grams of cocaine within 1,000 feet of a public elementary school is a Class B felony. See
id. § 39-17- 417(c)(2)(a); -432(b).
In this case, Mr. Pettway purchased cocaine on four occasions from the
Woodbine Avenue residence, twice buying directly from the defendant and twice from
other individuals as the defendant sat nearby. Prescription medication bottles and a
vehicle title in the defendant’s name bore the Woodbine Avenue address. During the
August 7, 2013 transaction, Mr. Pettway purchased cocaine at the kitchen table while the
defendant reclined nearby. During the August 9, 2013 transaction, Mr. Pettway
purchased drugs directly from the defendant. During the August 28, 2013 transaction,
Mr. Pettway purchased cocaine from another individual inside the residence. During the
final transaction, Mr. Pettway purchased cocaine directly from the defendant, who was
bagging cocaine for sale when Mr. Pettway arrived. The parties stipulated that the
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substance that Mr. Pettway purchased at the Woodbine Avenue residence was cocaine
and that the residence was located within 1,000 feet of both a private elementary school
and a childcare agency. Recordings of each purchase were played for the jury.
Authorities executed a search warrant on September 12, 2013, which led to the discovery
of a large amount of cocaine in various stages of production and packaging, digital scales
and other items used in the production and packaging of crack cocaine, two pill bottles
that bore the defendant’s name and the Woodbine Avenue address, and a marijuana
cigarette. Marked bills from the four controlled buys were found in a stack of cash inside
a safe at the residence, a wad of cash dropped in the front of the house, and cash found on
the defendant’s person. In our view, this evidence was more than sufficient to support
each of his convictions. We decline, as we must, the defendant’s invitation to revisit the
credibility determinations made by the jury with regard to the testimony of the State’s
witnesses.
Sentencing
Although not raised by the parties, we find plain error in the defendant’s
sentences for his convictions of facilitation of the sale and delivery of cocaine based upon
our supreme court’s recent holding in State v. Stanley Bernard Gibson, ___ S.W.3d ___,
No. M2014-00598-SC-R11-CD (Tenn. Nov. 16, 2016). This court will grant relief for
plain error pursuant to Rule 36(b) only when:
“(1) the record clearly establishes what occurred in the trial
court; (2) the error breached a clear and unequivocal rule of
law; (3) the error adversely affected a substantial right of the
complaining party; (4) the error was not waived for tactical
purposes; and (5) substantial justice is at stake.”
State v. Cooper, 321 S.W.3d 501, 506 (Tenn. 2010) (quoting State v. Hatcher, 310
S.W.3d 788, 808 (Tenn. 2010)).
In Stanley Bernard Gibson, Gibson was charged with the possession of .5
grams or more of cocaine with intent to distribute in a drug-free school zone but
convicted of the lesser-included offense of facilitation of possession of cocaine with
intent to distribute within a drug-free school zone. See State v. Stanley Bernard Gibson,
___ S.W.3d ___, No. M2014-00598-SC-R11-CD, slip op. at 7 (Tenn. Nov. 16, 2016).
Based upon the jury’s finding that Gibson committed his offense within 1,000 feet of a
school, the trial court classified the conviction offense one class higher and ordered that
he serve 100 percent of the minimum sentence. Id., slip op. at 5; see also T.C.A. § 39-
17-432(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 or within one thousand feet (1,000′) of
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the real property that comprises a public or private elementary school, middle school,
secondary school, preschool, child care agency, or public library, recreational center or
park shall be punished one (1) classification higher than is provided in § 39-17-417(b)-(i)
for such violation.”). Our supreme court examined the plain language of the statute and
held, however, that the Drug-Free School Zone Act “applies only to a violation of, or a
conspiracy to violate, Tennessee Code Annotated section 39-17-417.” Stanley Bernard
Gibson, slip op. at 8 (citing State v. Fields, 40 S.W.3d 435, 439-40 (Tenn. 2001)). The
high court ruled that “[b]ecause the Act does not apply to a conviction for facilitation, the
trial court erred in classifying Mr. Gibson’s conviction for facilitation as a Class B felony
and requiring 100 percent service of the sentence.” Stanley Bernard Gibson, slip op. at 9.
The supreme court remanded the case for resentencing.
In this case, the defendant was charged in counts 1-4 of case number
103163 with possession with intent to sell or deliver more than 26 grams of cocaine in a
school zone but was convicted of the lesser included offense of facilitation of possession
with intent to sell or deliver more than 26 grams of cocaine in a school zone in each
count. Similarly, the defendant was charged in counts 1 through 4 and counts 9 through
12 of case number 103177 with the sale or delivery of .5 grams or more of cocaine in a
school zone but was convicted of the lesser included offense of the facilitation of the sale
or delivery of .5 grams or more of cocaine in a school zone. Because our supreme court
has determined that the provisions of the Drug-Free School Zone Act do not apply to
convictions of facilitation, the trial court’s increasing the offense classification for the
facilitation convictions from a Class C felony to a Class B felony and ordering the
defendant to serve 100 percent of the 12-year sentence imposed for each of these
convictions breached a clear and unequivocal rule of law, and the record contains no
indication that the defendant waived the issue for tactical reasons. In consequence, we
reverse the sentences imposed for the defendant’s convictions of facilitation and remand
the case for resentencing on those counts.
Accordingly, the cause is remanded to the trial court for resentencing on
count 1 of case number 103163 and counts 1 and 9 of case number 103177. The
judgments of the trial court are affirmed in all other respects.
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JAMES CURWOOD WITT, JR., JUDGE
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