Whatley v. State

928 N.E.2d 202, 2010 Ind. LEXIS 382, 2010 WL 2284251
CourtIndiana Supreme Court
DecidedJune 8, 2010
Docket49S02-0908-CR-379
StatusPublished
Cited by15 cases

This text of 928 N.E.2d 202 (Whatley v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whatley v. State, 928 N.E.2d 202, 2010 Ind. LEXIS 382, 2010 WL 2284251 (Ind. 2010).

Opinions

SULLIVAN, Justice.

The Legislature has declared that if a person commits certain drug offenses within 1,000 feet of a "youth program center," the penal consequences are enhanced. Defendant Walker Whatley committed such an offense within 1,000 feet of a church with an active youth program. The church constituted a "youth program center" for purposes of the enhancement.

Background

The facts most favorable to the convietion indicate that in March, 2008, Whatley was arrested at his home on a warrant issued in an unrelated case. During a search incident to arrest, the arresting officer discovered a bag containing 3.2459 grams of cocaine in Whatley's pocket. In relevant part, the State charged Whatley with possession of cocaine as a Class A felony. Possession of cocaine is ordinarily [204]*204a Class C felony, but possession of three grams or more of cocaine within 1,000 feet of a youth program center elevates the offense to a Class A felony. Ind.Code § 35-48-4-6. Whatley's home, where the arrest occurred, was located approximately 795 feet from Robinson Community Chureh ("RCC"). Whether RCC qualifies as a "youth program center" for the purpose of triggering the elevation to a Class A felony is the central issue of this appeal.

The jury found that the enhancement was supported by the evidence and the court sentenced Whatley to a term of 85 years.1 Whatley appealed and the Court of Appeals reversed his conviction on the grounds that RCC did not qualify as a "youth program center." The Court of Appeals found that RCC's hosting of various programs for children did not change its status as a church; thus, removing it from the ambit of the statute's intended coverage for purposes of the sentence enhancement. Whatley v. State, 906 N.E.2d 259 (Ind.Ct.App.2009). The Court of Appeals remanded the case with instructions to enter the conviction as a Class C felony and sentence Whatley accordingly.

The State sought, and we granted, transfer. Ind. Appellate Rule 58(A).

Discussion

I

Whatley first contends that his conviction for Class A felony possession of cocaine, grounded on his possession being within 1,000 feet of a youth program center, should be reversed because the criminal statute and the statute defining a youth program center are unconstitutionally vague as applied to him. He asserts that there was nothing about RCC that would put a person of ordinary intelligence on notice that it was a youth program center.2 Specifically, Whatley argues that RCC bears no objective indicia signaling its designation as a protected area; therefore, the statute is unconstitutional as applied to him because there was no way for [205]*205him to know that he was within the proscribed distance of an "unmarked youth program center." (Appellant's Br. 7.) Relying on Indiana case law, Whatley insists that due process demands a bright-line rule for what structures will trigger the sentence enhancement when the protected area is a youth program center.

The phrase "youth program center" is defined by statute as "(1) A building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs or services for persons less than eighteen (18) years of age[;] (2) [the real property on which a building or structure described in subdivision (1) is located." I.C. § 35-41-1-29.

Relying on our decision in Walker v. State, 668 N.E.2d 243 (Ind.1996), the Court of Appeals rejected Whatley's vagueness claim on grounds that the law does not require knowledge of presence within a school-zone in order to trigger the sentence enhancement. In Walker, we held that presence in a school-zone was a strict-liability element. Id. at 244-45. While the Court of Appeals correctly notes that Walker established that drug offenders need not be aware of their presence within a protected area, Whatley's vagueness claim cannot be disposed of on this ground alone.

Walker addressed whether the school-zone elevation in the dealing in cocaine statute, Indiana Code section 35-48-4-1(b)(8), required proof of any mens rea to obtain an enhanced sentence. But the need for proof of mens rea-the precise issue addressed and answered in Walker-is not the same as the constitutional requirement against vagueness. For a statute to avoid constitutional infirmity on vagueness grounds, it must provide the person of ordinary intelligence with notice of what conduct is prohibited.3

In Polk v. State, 683 N.E.2d 567 (Ind.1997), we addressed the defendant's argument that an earlier version of the school-zone statute was unconstitutionally vague as applied to him.4 Polk argued that the statute did not reasonably inform average people that they would be subject to enhanced penalties for possessing drugs while stopped for a traffic violation in a protected area. Addressing his vagueness claim, we held that "[the school-zone enhancement, far from being unconstitutionally vague, quite clearly communicates to drug offenders a bright[-]line rule as to what conduct is proscribed. Thus a federal constitutional challenge on this ground is meritless." Id. at 572 (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)).5

[206]*206Whatley's vagueness claim focuses on the statute's requirement that programs or services be provided on a "regular" basis. While it is true that "regular" is susceptible to numerous meanings, the Constitution does not demand a statute free of ambiguities, but instead one that will put a person of ordinary intelligence on notice or provide objective criteria for determining whether one is within a protected area. See State v. Winot, 294 Conn. 753, 988 A.2d 188, 194 (2010) ('Because perfect precision is neither possible nor required ... the [vagueness] doctrine does not mandate the invalidation of all imprecisely drafted statutes. Simply put, [while some ambiguous statutes are the result of poor draftsmanship, it is apparent that in many instances the uncertainty is merely attributable to a desire not to nullify the purpose of the legislation by the use of specific terms which would afford loopholes through which many could escape." (citations and internal quotation marks omitted)).

There are likely hypothetical see-narios in which the definition of "youth program center" would be unconstitutionally vague, but vagueness challenges are challenges that statutes are unconstitutional as-applied, not on their faces. See Evangelatos v. Superior Court, 44 Cal.3d 1188, 246 Cal.Rptr. 629, 753 P.2d 585, 592 (1988) ("Many, probably most, statutes are ambiguous in some respects and instances invariably arise under which the application of statutory language may be unclear. So long as a statute does not threaten to infringe on the exercise of First Amendment or other constitutional rights, however, such ambiguities, even if numerous, do not justify the invalidation of a statute on its face."); accord Alcalde v.

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Bluebook (online)
928 N.E.2d 202, 2010 Ind. LEXIS 382, 2010 WL 2284251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whatley-v-state-ind-2010.