State v. Correll

• Decision Date: 25 January 1982
• Citation: 626 S.W.2d 699
• Parties: STATE of Tennessee, Appellee, v. Bill CORRELL, Appellant.
• Court: Tennessee Supreme Court

Page 699

626 S.W.2d 699

STATE of Tennessee, Appellee, v. Bill CORRELL, Appellant.

Supreme Court of Tennessee, at Knoxville.

Jan. 25, 1982.

P. Douglas Morrison & Thomas H. Dickenson, Morrison, Morrison & Morrow, P. A., Knoxville, for appellant.

William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Sr. Asst. Atty. Gen., Nashville, for appellee.

OPINION

FONES, Justice.

The only issue on this direct appeal in a criminal case is whether excluding convictions for selling schedule I or II controlled substances from eligibility for suspended sentences violates the equal protection clauses of the State or Federal Constitutions.

Appellant received a sentence of not less than four years nor more than seven years for selling cocaine in violation of T.C.A. § 52-1432(a)(1)(B). The trial judge denied defendant's petition for probation for the reason that the statute authorizing the suspension of sentences, T.C.A. § 40-2901, excludes from eligibility persons convicted of selling schedule I or schedule II drugs.

T.C.A. § 40-2901 gives a trial judge the discretion to suspend the sentence of any person convicted of a misdemeanor or a felony, if the maximum sentence imposed is ten years or less, but a number of specifically named offenses are excluded including the sale of schedule I or II drugs. ¹

Appellant contends that the denial from consideration for probation places him in a special class which abridges his right to equal protection guaranteed by the Fourteenth Amendment to the United States Constitution and Article XI, Section 8 of the Tennessee Constitution.

Defendant concedes that the classification involved here is subject to the rational basis test. ² Under that test, if some reasonable basis can be found for the classification or if any state of facts may reasonably be conceived to justify it, the classification will be upheld.

"The burden of showing that a classification is unreasonable and arbitrary is placed upon the individual challenging the statute; and if any state of facts can reasonably be conceived to justify the classification or if the reasonableness of the class is fairly debatable, the statute must be upheld. Swain v. State, 527 S.W.2d 119 (Tenn.1975)." Harrison v. Schrader, 569 S.W.2d 822, 826 (Tenn.1978).

Defendant's principal argument is that excluding first time drug sellers from those eligible for consideration for probation is not rationally related to the objective of the probation statute, to-wit: to avoid placing first time offenders with hardened criminals and to provide an opportunity for self-rehabilitation.

The legislative grant of probation is a privilege and cannot be demanded as a right. See Hooper v. State, 201 Tenn. 156, 161, 297 S.W.2d 78, 81 (1956). The Legislature has seen fit to withhold that privilege from those who commit the most serious crimes against society. What we said in Swain v. State, 527 S.W.2d 119 (Tenn.1975), where the issue of denial of bail to those convicted of selling drugs was under equal protection attack, is relevant here:

"In enacting the Drug Control Law of 1971, the Legislature no doubt considered the cause-and-effect relationship between drug pushing and the tremendous increase of all types of offenses against society. It has been held that engaging in narcotics traffic and a conviction for conspiracy to deal in and distribute heroin warrants a finding that the defendant is a 'danger to the community', see U. S. v. Erwing, 280 F.Supp. 814 (N.D.Cal.1968)." Id. at 121.

Defendant also contends that the classification in the instant case is analogous to the classification held to violate due process and equal protection in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). In Griffin, defendant was indigent and unable to pay for a transcript of the trial proceedings for use on appeal and Illinois conceded that defendant needed a transcript to get adequate review of the alleged trial errors.

We think Griffin is clearly distinguishable from the instant case. Mr. Justice Black writing for the Court in Griffin appears to have placed indigency in the "suspect" classification, with the following observation:

"In criminal trials a state can no more discriminate on account of poverty than on account of religion, race, or color. Plainly the ability to pay costs in advance bears no rational relationship to a defendant's guilt or innocence and could not be used as an excuse to deprive a defendant of a fair trial." 76 S.Ct. at 590.

Suspect classifications are subject to strict scrutiny, being those...