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Date: 01-25-2021
Case Style:
State of Tennessee v. Michael Ray Perna
Case Number: M2019-01032-CCA-R3-CD
Judge: Robert W. Wedemeyer
Court: IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Plaintiff's Attorney: Herbert H. Slatery III, Attorney General and Reporter; T. Austin Watkins, Assistant
Attorney General; C. Craig Northcott, District Attorney General; and Jason M. Ponder,
Assistant District Attorney General
Defendant's Attorney:
OR
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Description:
Jackson, TN - Criminal defense attorney represented Michael Ray Perna with arguing that he was acting as the minor victim’s legal guardian pursuant to Tennessee Code Annotated section (d)(2)(D) and thus was only eligible for a fine by way of punishment, pursuant to Tennessee Code Annotated section 40-39-211(g)(4).
This case arises from the presence of the Defendant, who is a convicted sex
offender, on the premises of an elementary school. The Defendant, acting with the
permission of a child’s parent, dropped the child off at the school. Based on this
incident, a Coffee County grand jury indicted the Defendant for violating the terms of the
Sex Offender Registry Act. During the Defendant’s plea submission hearing, the State
set forth the following account of the facts supporting the Defendant’s guilty plea
underlying this appeal:
On February 13, 2017, [the Defendant] dropped off a child at New
Union Elementary School and checked the child in late. [The Defendant]
actually came to the office and signed the registration form checking the
child in late. Pursuant to the Sex Offender Registration Act, he is not
permitted to enter into a school where minors are present and, therefore,
was charged with violation of that act.
The State informed the trial court that the Defendant was a convicted sex offender
in the State of New York and became subject to the sex offender registry in Tennessee
when he relocated to this state. Based on his conduct, the Defendant pleaded guilty to
violating the Sex Offender Registry Act. The Defendant entered an open plea with a
possible sentence of two years to be suspended to probation after ninety days of
incarceration, as was recommended by the State, or the possible sentence of only a fine.
Following entry of his guilty plea, the trial court held a sentencing hearing to
determine the Defendant’s sentence in consideration of his argument that, pursuant to the
Sex Offender Registry Act, Tennessee Code Annotated section 49-39-211(g)(4), he
should be punished by fine only. At the sentencing hearing, the Defendant argued that
his presence on the elementary school’s grounds was in order to “help a friend out in
dropping the child off at school.” The Defendant conceded that the Sex Offender
Registry Act, found at Tennessee Code Annotated section 40-39-211, prohibited him, as
a registered sex offender, from being on school grounds. See T.C.A. §
40-39-211(d)(1)(A) (2019). He argued, however, that his presence on school grounds
was permissible pursuant to an exception found at (d)(2)(D) of the statute because he was
“dropping off or picking up a child or children and the person is the child or children’s
parent or legal guardian who has provided written notice of the parent’s offender status to
the school’s principal or a school administrator upon enrollment.” T.C.A. §
40-39-211(d)(2)(D).
The Defendant argued that, based on the general construction of the language of
the statute, he was the minor child’s “legal guardian.” He argued that “legal guardian”
was not defined by the statute and thus the “natural and ordinary” meaning of legal
guardian, defined in the dictionary as “one who has the care of the person . . . of another,”
encompassed his care of the minor child. Based on this, the Defendant argued that he
was ineligible for punishment in the form of confinement, as required by Tennessee Code
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Annotated section 49-39-211(g)(1), but was only eligible to be fined pursuant to
Tennessee Code Annotated section 40-39-211(g)(4). The Defendant submitted as an
exhibit to the hearing the minor child’s registration card at the elementary school, which
listed the Defendant as an authorized individual to drop off/pick up the minor child.
Upon questioning from the trial court, the Defendant conceded that written notice
of his sex offender status had not been provided to the school. The State argued that
failure to provide written notice of his status removed any defenses contemplated by the
statute for the Defendant’s presence at the school.
At the conclusion of the hearing, the trial court concluded that the Defendant’s
having permission to drop off/pick up the child from school did not result in the
Defendant being the child’s “legal guardian,” making section (g)(4) inapplicable. The
trial court imposed the recommended sentence of two years, suspended to probation after
service of ninety days in jail. The Defendant now appeals the trial court’s imposition of
split confinement.
II. Analysis
The Defendant contends that the trial court erred when it imposed a two-year
sentence, with a mandatory ninety days in jail, stating that he should only have been
fined. He largely maintains his arguments from the sentencing hearing: that he was the
minor child’s legal guardian for the limited purpose of taking the minor child to school,
and that, based on his status as such, can only be fined for his conduct. The State
responds that the term “legal guardian” for the purposes of the statute does not apply to
the Defendant in this instance because he merely had permission to take the minor child
to school. The State further responds that, regardless of his argument that he was the
purported legal guardian, based on the fact that the Defendant failed to provide notice to
the school of his sex offender status, he was not eligible to claim the “fine only” benefit
of Tennessee Code Annotated section 40-39-211(g)(4). We agree with the State.
This question is one of statutory interpretation and, as such, we review it de novo,
without a presumption of correctness. State v. Walls, 62 S.W.3d 119, 121 (Tenn. 2001).
When construing any statute, our paramount obligation is to ascertain and effectuate the
Legislature’s intent. State v. Alford, 970 S.W.2d 944, 946 (Tenn. 1998). In order to do
so, we take the natural and ordinary meaning of the language contained in the statute,
without a forced construction to limit or extend its meaning. State v. Whitehead, 43
S.W.3d 921, 928 (Tenn. Crim. App. 2000). All ambiguities will be resolved in favor of
the defendant. State v. Rogers, 992 S.W.2d 393, 400 (Tenn. 1999).
The Sex Offender Registry Act, found at Tennessee Code Annotated Section
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40-39-211 provides that:
No sexual offender, as defined in § 40-39-202, or violent sexual offender, as
defined in § 40-39-202, shall knowingly:
(A) Be upon or remain on the premises of any building or grounds of any
public school, private or parochial school, licensed day care center, other
child care facility, public park, playground, recreation center or public
athletic field available for use by the general public in this state when the
offender has reason to believe children under eighteen (18) years of age are
present;
T.C.A. § 40-39-211(d)(1)(A). Tennessee Code Annotated section (d)(2)(D) states that
(d)(1) shall not apply when the offender, “Is dropping off or picking up a child or
children and the person is the child or children’s parent or legal guardian who has
provided written notice of the parent’s offender status to the school’s principal or a
school administrator upon enrollment.” T.C.A. § 40-39-211(d)(2)(D) (emphasis added).
A violation of section (d)(1)(A) is subject to cumulative punishment, at a minimum not
less than ninety days of incarceration, see section (g)(1)-(3), however a violation “solely
due to a lack of written permission” is punishable by a fine only. T.C.A. §
40-39-211(g)(4) (emphasis added). The Defendant relies on section (g)(4) to support
his argument that he is not eligible for a sentence of confinement.
The Defendant concedes that he violated section (d)(1)(A) when he entered the
elementary school to drop off the minor child. He further concedes that he did not
provide written notice of his sex offender status to the elementary school. He maintains,
however, that he is entitled to an “absolute defense” pursuant to section (d)(2)(D),
because he was the “legal guardian” for the minor. He further contends that,
accordingly, because his violation is based only on a lack of written notice he is only
eligible for punishment in the form of a fine according to section (g)(4). We disagree.
We turn first to address the Defendant’s argument that he was the minor victim’s
legal guardian. Black’s Law Dictionary defines “guardian” as “[s]omeone who has the
legal authority and duty to care for another’s person . . ., esp[ecially] because of the
other’s infancy. . . .” BLACK’S LAW DICTIONARY (11th ed. 2019). The Defendant had
permission to take the minor child to school, as evidenced by the minor child’s parent
listing the Defendant’s name on the school registration card as someone who was
authorized to drop off and pick up the minor child. This authorization is not equivalent
to the Defendant having “legal authority and duty” to care for the minor child. To hold
otherwise would confer legal guardianship to every person listed on any child’s school
registration card. This is not the plain and ordinary interpretation of our Legislature’s
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intent in this statute. For the purposes of Tennessee Code Annotated section 40-39-211,
we conclude that a “legal guardian” is one who has the legal authority and duty to care
for the child.
In light of this conclusion, the Defendant was not entitled to the defense granted to
parents or legal guardians permitting them, upon providing written notice to the school
principal or administrator, to be on elementary school grounds. Thus, the Defendant
violated Tennessee Code Annotated section 40-39-211(d)(1)(A), was not entitled to a
defense, and was properly sentenced by the trial court in accordance with Tennessee
Code Annotated section 40-39-211(g)(1) (providing that the first violation of this part is
punishable by a fine of not less than three hundred fifty dollars ($350) and imprisonment
for not less than ninety (90) days.
As further support for our holding that Tennessee Code Annotated section
40-39-211(g)(4) is inapplicable to the Defendant, we note that section (g)(4) states that it
applies when the violation is due solely to the lack of “written permission.” The
Defendant seeks to take advantage of section (d)(2)(D), which states that it is not a
violation if the offender is the child’s legal guardian and drops the child off at school
after having given the school “written notice.” Another section of (d)(2), namely
(d)(2)(B), states that it not a violation when the offender attends a conference with a
school or day care, etc., as a legal guardian if the offender has received “written
permission” from the school or day care, etc. Section (g)(4) uses the language “written
permission” and does not include mention of the language “written notice.” As such,
plain interpretation of the language of the statute forces the conclusion that (g)(4) does
not apply to the section (d)(2)(D) at all unless and until the Legislature includes the
language “written notice” in that subsection.
We conclude that the Defendant was not the minor child’s legal guardian;
therefore, any sentencing considerations afforded by Tennessee Code Annotated section
40-39-211(g)(4) are not applicable. We further conclude that section (g)(4) does not
apply to section (d)(2)(D). As such, the Defendant is not entitled to relief.
Outcome: After a thorough review of the record and relevant authorities, we conclude the
trial court properly sentenced the Defendant. As such, we affirm the judgment of the
trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: