STATE v. NANKERVIS

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Supreme Court of Georgia.

The STATE v. NANKERVIS.

No. S14A0513.

Decided: June 30, 2014

Rebecca Ashley Wright, D.A., Charles R. Sheppard, Augusta Judicial Circuit Distritct Attorney's Office, Evans, for Appellant. Kurt Allen Worthington, Fleming & Nelson, LLP, Evans, for Appellee.

This case stems from Appellee Thomas Nankervis' prosecution for methamphetamine trafficking pursuant to OCGA § 16–13–31(f). After the jury returned a guilty verdict on methamphetamine trafficking, the trial court held that the methamphetamine trafficking statute was unconstitutional and sentenced Nankervis for manufacturing a controlled substance pursuant to the rule of lenity. The State appeals, and we now hold that the methamphetamine trafficking statute is constitutional and that rule of lenity does not apply in this case. Accordingly, we reverse the trial court's ruling, vacate the judgment in part, and remand.

On June 15, 2011, a Columbia County grand jury indicted Nankervis for trafficking in methamphetamine, failure to maintain lane, and violation of the open container law. After pleading not guilty, Nankervis filed a motion to dismiss the indictment on the ground that the sentencing provisions of the methamphetamine trafficking statute, OCGA § 16–13–31(f)(1), (g)(1), and (g)(2),1 are unconstitutional.

After a trial held on August 15–17, 2011, a jury found Nankervis guilty on all three counts in the indictment. The jury was charged on “Trafficking Methamphetamine,” “Manufacturing Methamphetamine,” “Possession of Methamphetamine with Intent to Distribute,” and “Possession of Methamphetamine,” and the jury opted to find Nankervis guilty of “Trafficking Methamphetamine.” After the jury's verdict was published, the trial court instructed the jury to return a “secondary” verdict, stating: “If you had not had the charge before you of trafficking in methamphetamine, I need for you to return a verdict as to whether or not you would have found Mr. Nankervis guilty or not guilty of the offense of manufacturing methamphetamine.”2 After a quick deliberation, the jury returned a verdict of guilty for “manufacturing methamphetamine.”

The trial court delayed sentencing in order to fully consider the issues raised in Nankervis' motion to dismiss. On December 19, 2011, the court issued an order granting in part Nankervis' motion to dismiss, holding that OCGA § 16–13–31(f) and (g) were unconstitutional because they violated Nankervis' substantive due process and equal protection rights. The trial court held further that § 16–13–31(f)(1), which prohibits trafficking methamphetamine, and § 16–13–30(b), which prohibits manufacturing a controlled substance, prohibit identical conduct, and therefore, under the rule of lenity, the less severe penalty for manufacturing was applicable rather than the stricter penalty for trafficking. On December 22, 2011, the State filed a notice of appeal of the trial court's order.

On March 15, 2012, the court sentenced Nankervis to eight years of imprisonment for manufacturing a controlled substance pursuant to OCGA § 16–13–30(b) and (d), a concurrent 12–month term for failure to maintain lane, and a fine of $250.00 for the open container violation. The State supplemented its notice of appeal on March 26, 2012, to appeal the final disposition and sentence.3

1. The State argues that the trial court erred in finding unconstitutional the methamphetamine trafficking statute, OCGA § 16–13–31(f) and (g).4 The trial court held that § 16–13–31(g)(2), which allows for a reduced sentence if a defendant provides substantial assistance to the State, violated Nankervis' right to substantive due process and equal protection under the United States and Georgia Constitutions. The trial court concluded that all persons convicted under § 16–13–31(f)(1) were similarly situated, but Nankervis was treated differently because he could not provide assistance and therefore was ineligible for a reduced sentence under § 16–13–31(g)(2).

“Unless governmental action infringes upon a fundamental right or the complaining party is a member of a suspect class, a substantive due process or equal protection challenge is examined under the ‘rational basis' test.” Favorito v. Handel, 285 Ga. 795, 796(1), 684 S.E.2d 257 (2009).5 “Initially, the claimant must establish that he is similarly situated to members of the class who are treated differently from him. Next, the claimant must establish that there is no rational basis for such different treatment.” Harper v. State, 292 Ga. 557, 560(1), 738 S.E.2d 584 (2013) (punctuation omitted). “Under the rational basis test, a court will uphold the statute if, under any conceivable set of facts, the classifications drawn in the statute bear a rational relationship to a legitimate end of government not prohibited by the Constitution.” Id. at 560–61, 738 S.E.2d 584 (punctuation omitted).

We question whether defendants who are convicted of trafficking methamphetamine and provide substantial assistance should be considered similarly situated to those defendants who are convicted of trafficking methamphetamine but are unable to provide substantial assistance. Additionally, we note that those defendants who provide substantial assistance are not necessarily treated differently because the trial court retains discretion to impose a reduced sentence. OCGA § 16–13–31(g)(2).

However, even assuming that defendants convicted of methamphetamine trafficking who provide substantial assistance are similarly situated and treated differently than those who cannot provide assistance, we find that there is a rational basis for doing so: the legislature intended to reward individuals with a reduced sentence in exchange for information that is useful in assisting law enforcement officials with identifying, arresting, or convicting other individuals involved with illegal drugs and shutting down drug networks. Accordingly, we conclude that OCGA § 16–13–31(f)(1), (g)(1), and (g)(2) do not violate Nankervis' substantive due process or equal protection rights because these provisions bear a rational relationship to a legitimate objective of the government. See United States v. Torres, 33 F.3d 130, 132 (1st Cir.1994) (finding 18 USC § 3553(e), which provided for a lower sentence based on a defendant's substantial assistance, did not violate equal protection clause because it was rational to reward a defendant who gives information to assist the government in shutting down a drug network); United States v. Musser, 856 F.2d 1484, 1487 (11th Cir.1988) (same); State v. Benitez, 395 So.2d 514(4) (Fla.1981) (rejecting equal protection challenge to law that allowed for reduced sentence if a defendant agreed to cooperate with law enforcement authorities to stop drug trafficking); Wheatt v. State, 410 So.2d 479(III) (Ala.Crim.App.1982) (same).

2. The State contends that the trial court erred in applying the rule of lenity in this case. “[T]he rule of lenity comes into play only to resolve ambiguities that remain ‘after applying all other tools of statutory construction.’ “ Higdon v. State, 291 Ga. 821, 826(2)(b), 733 S.E.2d 750 (2012). However, where there is a specific and a general criminal statute, the rule of lenity is not implicated, and “a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.” Mann v. State, 273 Ga. 366, 368(1), 541 S.E.2d 645 (2001) (punctuation omitted); see also Woods v. State, 279 Ga. 28, 31(3), 608 S.E.2d 631 (2005) (“Where a crime is penalized by a special law, the general provisions of the penal code are not applicable.”) (punctuation omitted).

Nankervis was indicted for violating OCGA § 16–13–31(f)(1), which provides that “[a]ny person who knowingly manufactures methamphetamine ․ commits the felony offense of trafficking methamphetamine” and sets the punishment for such an offense at a mandatory minimum of ten years of imprisonment and a fine of $200,000, if the quantity of methamphetamine is less than 200 grams. OCGA § 16–13–30(b) and (d) make it unlawful to “manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance” and set the punishment at between five and 30 years of imprisonment.6

The clear language of these statutes demonstrates that § 16–13–31(f) is a specific law criminalizing “trafficking methamphetamine” while § 16–13–30(b) criminalizes the manufacturing of any “controlled substance.” “Furthermore, the most reasonable interpretation of the legislative intent in enacting OCGA § 16–13–31(f)(1) was to supplant the general punishment provision of OCGA § 16–13–30(b) with a specific and potentially more harsh punishment provision for [trafficking] methamphetamine.” Richards v. State, 290 Ga.App. 360, 363(2), 659 S.E.2d 651 (2008) (physical precedent only); see also Bassett v. Lemacks, 258 Ga. 367, 370(2), 370 S.E.2d 146 (1988) (penalties for trafficking under § 16–13–31 are “greater” than those provided in § 16–13–30(b)). Thus, because a more specific law applies to trafficking methamphetamine, the general provisions of § 16–13–30(b) for manufacturing controlled substances do not apply. See Woods, 279 Ga. at 31, 608 S.E.2d 631. There being no uncertainty as to which statute applies, the rule of lenity is not implicated. See Richards, 290 Ga.App. at 363, 659 S.E.2d 651.

3. Having found that § 16–13–31(f) is not unconstitutional and that the rule of lenity does not apply, we must now determine whether there was sufficient evidence to support the jury's verdict of guilt under § 16–13–31(f). Viewed in the light most favorable to that verdict, the evidence adduced at trial established as follows. In the early morning hours of April 26, 2011, a law enforcement officer stopped Nankervis for erratic driving behavior and weaving across travel lanes. During the stop, officers noticed an open beer can on the center console of the van, and upon questioning, Nankervis admitted that there was a marijuana cigarette in the van. Officers proceeded to search the van and found coffee filters, tubing, a funnel, a bottle with tubing coming out of it, a bottle containing a liquid substance, a can of Coleman fuel, drain cleaner, muriatic acid, a cold pack containing ammonium nitrate, a coffee grinder, lithium batteries, and rubber gloves. A narcotics investigator testified at trial that all of these items could be used together to produce methamphetamine and were consistent with a methamphetamine lab. Specifically, he testified that the bottle found in Nankervis' van at the time contained a liquid substance that was in the process of being converted into methamphetamine. Additionally, investigators found scales, which are consistent with selling drugs, as well as syringes, a spoon, and straws, commonly used for ingesting drugs. Investigators also found a bag containing less than one gram of methamphetamine. We find that the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Nankervis was guilty of trafficking in methamphetamine, failure to maintain lane, and violation of the open container law. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).7

For the foregoing reasons, we conclude that the trial court erred by sentencing Nankervis for manufacturing a controlled substance rather than for trafficking methamphetamine. Accordingly, we reverse the trial court's ruling granting in part Nankervis' motion to dismiss, vacate the judgment and sentence on Count 1, and remand with direction to enter judgment on Count 1 for trafficking methamphetamine and to sentence Nankervis accordingly. In addition, because the trial court improperly imposed a fine for the open container violation that exceeds the statutory cap, see OCGA § 40–6–253(c) (setting maximum fine at $200), we also vacate the sentence on Count 3 and remand for resentencing on that count.

Judgment affirmed in part and vacated in part and case remanded for entry of judgment and sentencing.

* * *

FOOTNOTES

FOOTNOTE.  (d) Except as otherwise provided, any person who violates subsection (b) of this Code section with respect to a controlled substance in Schedule I or Schedule II shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he or she shall be imprisoned for not less than ten years nor more than 40 years or life imprisonment. The provisions of subsection (a) of Code Section 17–10–7 shall not apply to a sentence imposed for a second such offense; provided, however, that the remaining provisions of Code Section 17–10–7 shall apply for any subsequent offense.

7.  Because we have found that the trafficking in methamphetamine statute applies in this case and is constitutional and because the evidence supports the jury's finding of guilt for methamphetamine trafficking, any error in the trial court's request for a secondary verdict on “manufacturing methamphetamine” was harmless.

HUNSTEIN, Justice.

All the Justices concur.

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