HILLSBORO (February 14, 2014) Waco's 10th Court of Appeals has overturned a portion of a court decision handed down in Hill County and sent the issue back to 66th District Court for re-hearing.
The appeals court said an enhancement in the sentence for Conner Benjamin Polen, who pleaded guilty to aggravated robbery, two counts of tampering with evidence and possession of cocaine in a drug free zone, was in part improper and ordered the case sent back to trial court.
The court sentenced Polen to serve 25 years for the aggravated robbery and 10 years each on the remaining counts, all to be served concurrently.
In his appeal, Polen did not contest the sentences for the aggravated robbery or for the tampering conviction, but in the case of the drug charge, and in particular the "drug-free zone" enhancement, Polen argued the sentence was improper.
In its opinion, the court said: "Polen asserts that the evidence is insufficient to prove that he possessed cocaine in a drug-free zone - within 1,000 feet of a school, which enhanced the minimum sentence by five years - from two to seven years.
"The indictment alleged that the possession offense was committed "in or on or within 1,000 feet of the premises of a school, to wit: Hill College," the opinion says.
Later in the decision the judges say: "Hill College is not a 'school' for the purposes of enhancing punishment for certain drug offenses."
The opinion further states: "The enhanced seven-to-10 year punishment range considered by the court for this third-degree felony is incorrect" and "such a deficiency will never be considered harmless."
In conclusion the justices said: "We must reverse and remand that cause to the trial court for a new punishment hearing."
The trial court's decisions on the robbery and tampering convictions remained in place.
The appeals court also directed the trial court to reconsider assessment of attorney's fees in the case.