State v. Gomez

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 7, 2007 Session

STATE OF TENNESSEE V. EDWIN GOMEZ ET AL.

On remand from the United States Supreme Court

Davidson County Criminal Court

No. 2001-A-280 Cheryl Blackburn, Judge

No. M2002-01209-SC-R11-CD - Filed October 9, 2007

This matter is before us upon remand by the United States Supreme Court for reconsideration in light

of that Court’s decision in Cunningham v. California, 549 U.S.__, 127 S. Ct. 856 (2007). In our

initial disposition of this matter, State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), we concluded that

the Defendants were not entitled under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its

progeny to relief as to their sentences. Upon further review following Cunningham, we now

conclude that the trial court’s enhancement of the Defendants’ sentences on the basis of judicially

determined facts other than the Defendants’ prior convictions violated the Defendants’ constitutional

rights under the Sixth Amendment to the United States Constitution. In order to redress the

unconstitutional enhancement of the Defendants’ sentences, we vacate their sentences and remand

this matter to the trial court for resentencing.

Tenn. R. App. P. 11; Judgments of the Trial Court Affirmed in Part,

Vacated and Remanded in Part

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and

JANICE M. HOLDER and GARY R. WADE, JJ., joined.

Glenn R. Funk and Cynthia M. Fort, Nashville, Tennessee, for the appellant, Edwin Gomez.

David A. Collins, Nashville, Tennessee, and James Stafford, Houston, Texas, for the appellant,

Jonathan S. Londono.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Gordon

W. Smith, Associate Solicitor General; Victor S. Johnson III, District Attorney General; and Bret

Gunn and Roger Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

David L. Raybin, Nashville, Tennessee, and Wade V. Davies, Knoxville, Tennessee, for the Amicus

Curiae, Tennessee Association of Criminal Defense Lawyers.

OPINION

I. BACKGROUND

The Defendants’ Sixth Amendment claims as to the length of their sentences in this case are

before us for reconsideration. We begin with a brief review of the prior proceedings.

The Defendants, Edwin Gomez and Jonathan S. Londono, were charged jointly with

conspiracy to commit aggravated robbery (Count One), first degree felony murder (Count Two),

especially aggravated robbery (Count Three), and aggravated robbery (Count Four). A recitation of

the facts leading to these charges is set forth in our previous opinion, State v. Gomez, 163 S.W.3d

632, 637-40 (Tenn. 2005) (“Gomez I”). The trial court submitted the crimes as charged to the jury,

and the jury convicted the Defendants of conspiracy to commit aggravated robbery, a Class C felony,

as charged in Count One. As to the remaining counts, the jury convicted the Defendants of lesser-

included offenses: facilitation of felony murder, a Class A felony (Count Two), facilitation of

especially aggravated robbery, a Class B felony (Count Three), and facilitation of aggravated

robbery, a Class C felony (Count Four). After a sentencing hearing, the trial court sentenced the

Defendants as Range I standard offenders to the maximum term available for each conviction: six

years for the conspiracy offense; twenty-five years for facilitation of felony murder; twelve years for

facilitation of especially aggravated robbery; and six years for facilitation of aggravated robbery.

The trial court enhanced all of the Defendants’ sentences on the basis of two enhancement factors:

“a previous history of criminal convictions or criminal behavior in addition to those necessary to

establish the appropriate range,” and upon finding that each Defendant “was a leader in the

commission of an offense involving two (2) or more criminal actors.” Tenn. Code Ann. § 40-35-

114(1), (2) (Supp. 2001).1 The trial court further enhanced each Defendant’s sentence for the

facilitation of felony murder offense upon finding that each Defendant “possessed or employed a

firearm, explosive device or other deadly weapon during the commission of the offense.” Id. at (9).

The trial court found that no mitigating factors applied. The trial court ordered the sentences to be

served consecutively for a total effective term of forty-nine years as to each Defendant.

On direct appeal, the Court of Criminal Appeals affirmed the Defendants’ convictions and

sentences although the intermediate appellate court determined that the trial court should not have

applied to the facilitation of felony murder offense the enhancement factor for use of a firearm. On

direct appeal to this Court, the Defendants raised, for the first time, a Sixth Amendment challenge

to the length of their sentences,2 relying upon the United States Supreme Court’s decision in Blakely

1

W e cite to the version of the Code in effect at the time of the Defendants’ sentencing hearing.

2

In this Court, the Defendants did not challenge the trial court’s imposition of consecutive service. See Gomez

I, 163 S.W .3d at 648 n.11.

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v. Washington, 542 U.S. 296 (2004).3 Finding that the Defendants had failed timely to preserve this

issue for plenary appellate review, this Court ruled that the Defendants were “limited to seeking

relief [on their Sixth Amendment sentencing claim] via plain error review.” Gomez I, 163 S.W.3d

at 651. Concluding that the Defendants had not established plain error4 in their sentencing, this

Court denied relief and affirmed the Court of Criminal Appeals. Id. at 662.

The Defendants sought certiorari from the United States Supreme Court regarding this

Court’s holding on their Blakely issue. In due course, that Court vacated our decision in Gomez I

and remanded this matter for further consideration in light of its recent opinion in Cunningham v.

California, 549 U.S. ___, 127 S. Ct. 856 (2007).5 See Gomez v. Tennessee, __ U.S. __, 127 S. Ct.

1209 (2007). We now undertake that further consideration.6

II. ANALYSIS

A. Plain Error Review

As indicated above, this Court determined in its initial review of this matter that the

Defendants were limited to plain error review on their sentencing claims. Defendant Gomez and

amicus curiae argue that plain error review is unnecessary and that we should grant plenary appellate

review of the Defendants’ Sixth Amendment claims. Because we have determined that the

Defendants are entitled to relief for plain error, we decline to readdress whether the Defendants

properly preserved their Sixth Amendment claim for plenary review. Accordingly, consistent with

our initial holding in Gomez I, we will apply plain error review to our reconsideration of the

Defendants’ sentencing claims.

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The D efendants also continued to challenge their convictions on the basis that the admission of certain

testimony violated their Sixth Amendment right to confrontation. As did the Court of Criminal Appeals, this Court

concluded that neither Defendant was entitled to relief on that basis and affirmed the Defendants’ convictions. See

Gomez I, 163 S.W .3d at 636.

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See Tenn. R. Crim. P. 52(b) (“W hen necessary to do substantial justice, an appellate court may consider an

error that has affected the substantial rights of an accused at any time, even though the error was not raised in the motion

for a new trial or assigned as error on appeal.”).

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Although the Supreme Court vacated this Court’s decision in Gomez I, the Defendants continue to challenge

only the enhancement of their sentences. Accordingly, we reinstate without further discussion the Defendants’ judgments

of conviction for the reasons set forth in Gomez I.

6

Subsequent to this Court’s Order Denying Petition for Rehearing filed May 18, 2005, this Court’s mandate in

Gomez I issued on June 30, 2005. On April 10, 2007, this Court recalled its mandate in order to comply with the

mandate from the United States Supreme Court in granting certiorari to the Defendants on February 20, 2007.

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B. Plain Error Criteria

Under plain error review, this Court will grant relief only where five prerequisites are met:

(1) the record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule of

law was breached; (3) a substantial right of the accused was adversely affected; (4) the accused did

not waive the issue for tactical reasons; and (5) consideration of the error is “necessary to do

substantial justice.” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson,

899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). “It is the accused’s burden to persuade an

appellate court that the trial court committed plain error.” State v. Bledsoe, 226 S.W.3d 349, 355

(Tenn. 2007) (citing United States v. Olano, 507 U.S. 725, 734 (1993)).

1. Adequate Record

As to the first prerequisite, we acknowledged in our previous decision that the record clearly

establishes what occurred in the trial court. Gomez I, 163 S.W.3d at 652. In short, the record

reflects the offenses of which the Defendants were convicted and the transcript of the sentencing

hearing reflects the meticulous process used by the trial court in crafting individualized sentences

for each Defendant pursuant to the applicable statutory provisions.

2. Breach of Clear and Unequivocal Rule of Law

We next considered in Gomez I whether the trial court breached a clear and unequivocal rule

of law by applying enhancement factors based on facts not found by a jury to increase the length of

the Defendants’ sentences to the maximum allowable in the applicable range. We determined that

it did not. Id. at 661-62. We now revisit that analysis.

a. Apprendi and its Progeny

We begin with a brief review of the line of cases beginning with Apprendi v. New Jersey,

530 U.S. 466 (2000), and culminating in Cunningham. In Apprendi, the United States Supreme

Court considered a state sentence that had been increased beyond the statutory maximum upon the

trial judge’s determination that the defendant had committed the crime ‘“with a purpose to intimidate

an individual or group of individuals because of race, color, gender, handicap, religion, sexual

orientation or ethnicity.’” 530 U.S. at 469 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999-

2000)). The Supreme Court held that the Sixth Amendment prohibited the enhanced sentence, id.

at 497, and stated, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt.” Id. at 490.

In Blakely v. Washington, the defendant was convicted of a felony under Washington law

for which he was subject to a sentence of forty-nine to fifty-three months unless the trial judge found

“‘substantial and compelling reasons justifying an exceptional sentence.’” 542 U.S. 296, 299 (2004)

(quoting Wash. Rev. Code Ann. § 9.94A.120(2) (West 2000)). Finding that the defendant had

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committed the offense with deliberate cruelty, the trial court increased the defendant’s sentence to

ninety months. Applying the rule of Apprendi, the Supreme Court held the defendant’s sentence

unconstitutional. Id. at 305. The Court emphasized that

the “statutory maximum” for Apprendi purposes is the maximum sentence a judge

may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant. In other words, the relevant “statutory maximum” is not the

maximum sentence a judge may impose after finding additional facts, but the

maximum he may impose without any additional findings. When a judge inflicts

punishment that the jury’s verdict alone does not allow, the jury has not found all the

facts “which the law makes essential to the punishment,” and the judge exceeds his

proper authority.

Blakely, 542 U.S. at 303-04 (citations omitted).

The Supreme Court addressed this issue in the context of the Federal Sentencing Guidelines

in United States v. Booker, 543 U.S. 220 (2005). Booker was convicted by a jury of possession with

intent to distribute crack cocaine. The corresponding “base” sentence pursuant to the Guidelines was

210 to 262 months. The trial court increased Booker’s sentence to 360 months after determining that

the preponderance of the evidence established that Booker had possessed a quantity of drugs greater

than that determined by the jury’s verdict. Finding that there was “no relevant distinction between

the sentence imposed pursuant to the Washington statutes in Blakely and the sentence[] imposed

pursuant to the Federal Sentencing Guidelines,” id. at 235, the Supreme Court ruled Booker’s

sentence violative of the Sixth Amendment. Id. at 244.

In Cunningham, the Supreme Court considered California’s determinate sentencing law.

Cunningham had been convicted of continuous sexual abuse of a child under the age of fourteen.

Under California’s statutory sentencing scheme, Cunningham was subject to imprisonment “for a

lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16

years.” 549 U.S. at __, 127 S. Ct. at 860. The trial court was required to sentence Cunningham to

the middle term, however, unless it found one or more aggravating facts. At a sentencing hearing,

the trial judge found by a preponderance of the evidence six aggravating circumstances and one

mitigating circumstance. Concluding that the aggravating circumstances outweighed the mitigating

circumstance, the judge sentenced Cunningham to the upper term sentence of sixteen years.

In finding that California’s sentencing scheme violated the Sixth Amendment, id., the

Supreme Court emphasized that the crucial inquiry under Apprendi is the maximum sentence

allowed under the relevant statutory scheme based solely on those facts reflected by the jury’s verdict

(or admitted by the defendant). Id. at 860. In examining California’s sentencing scheme, the Court

first determined that the “key California Penal Code provision states that the sentencing court ‘shall

order imposition of the middle term’ absent ‘circumstances in aggravation or mitigation of the

crime.’” Id. at 866 n.10 (quoting Cal. Penal Code Ann. § 1170(b)) (emphasis in Cunningham). The

Court next recognized that, “[u]nder California’s [determinate sentencing law], an upper term

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sentence may be imposed only when the trial judge finds an aggravating circumstance.” Id. at 868.

For Sixth Amendment purposes, then, “the middle term prescribed in California’s statutes, not the

upper term, is the relevant statutory maximum.” Id. Because the trial court sentenced Cunningham

to the upper term sentence based on judicially determined facts not otherwise reflected by the jury’s

verdict or admitted by the defendant, the Court held that the sentence violated Cunningham’s Sixth

Amendment rights. Id. at 871.

b. Tennessee’s Sentencing Scheme

This appeal is governed by Tennessee’s Criminal Sentencing Reform Act of 1989 (“the

Reform Act”) which, prior to its amendment in 2005, established a “presumptive sentence” for each

class of felonies other than capital murder. Absent enhancing or mitigating factors, the presumptive

sentence for Class B, C, D, and E felonies was the minimum in the applicable range.7 Tenn. Code

Ann. § 40-35-210(c) (Supp. 2001). For Class A felonies, the presumptive sentence absent enhancing

or mitigating factors was the midpoint in the applicable range. Id. A sentencing court could not

increase a defendant’s sentence above the presumptive sentence except upon the application of

statutory enhancement factors. See id.; see also State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994)

(“The sentence imposed [for most felonies] cannot exceed the minimum sentence in the range unless

the State proves enhancement factors.”). A sentencing court determined the existence of

enhancement factors by a preponderance of the evidence. See State v. Carico, 968 S.W.2d 280, 287

(Tenn. 1998). Once the trial court found enhancement factors, it had the authority to “set the

sentence above the minimum in [the sentencing] range but still within the range.” Tenn. Code Ann.

§ 40-35-210(d) (Supp. 2001). The weight afforded enhancement factors was left to the trial court’s

discretion. See Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Cmts. (1997); see also State

v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). In sum, a maximum sentence could not

be imposed absent a judicial finding of enhancement factors.

In our previous analysis of the Reform Act, which was conducted in light of Booker but

without the benefit of Cunningham, we determined that “the relevant inquiry is whether the Reform

Act mandates imposition of a sentence increased above the presumptive sentence when a judge finds

an enhancement factor.” Gomez I, 163 S.W.3d at 661 (emphasis changed). We interpreted Booker

to hold that “the mandatory increase of a sentence is the crucial issue which courts must consider in

determining whether a particular sentencing scheme violates the Sixth Amendment.” Id. Because

the Reform Act did not require a trial court to increase a sentence upon finding one or more

enhancement factors, we held that the Reform Act did not offend the Sixth Amendment under

Apprendi. Id.

We are instructed by Cunningham, however, that “[i]f the jury’s verdict alone does not

authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term,

the Sixth Amendment requirement is not satisfied.” 127 S. Ct. at 869. Applying Cunningham, we

7

The sentencing range is determined based upon the defendant’s history of criminal convictions. See Tenn.

Code Ann. §§ 40-35-105 through -109 (1997, 2006).

6

conclude that the Reform Act failed to satisfy the Sixth Amendment insofar as it allowed a

presumptive sentence to be enhanced based on judicially determined facts.8 That is, to the extent the

Reform Act permitted enhancement based on judicially determined facts other than the fact of a prior

conviction, it violated the Sixth Amendment as interpreted by the Supreme Court in Apprendi,

Blakely, and Cunningham.

In this case, the trial court increased all of the Defendants’ sentences beyond the presumptive

sentences on the basis of two enhancement factors: their “previous history of criminal convictions

or criminal behavior in addition to those necessary to establish the appropriate range,” and upon its

determination that each “was a leader in the commission of an offense involving two (2) or more

criminal actors.” Tenn. Code Ann. § 40-35-114(1), (2) (Supp. 2001). As to the Defendants’

convictions for facilitation of felony murder, the trial court also applied as an enhancement factor

that each “possessed or employed a firearm, explosive device or other deadly weapon during the

commission of the offense.” Id. at (9). On appeal, the Court of Criminal Appeals determined that

the trial court had properly applied factors (1) and (2) but that application of factor (9) was not

supported by the evidence. Nevertheless, the intermediate appellate court affirmed the Defendants’

maximum sentences.

The trial court’s application of the enhancement factor for a previous history of criminal

convictions does not offend the Sixth Amendment. See Apprendi, 530 U.S. at 490. Having

reconsidered the Reform Act in light of Cunningham, we now conclude that the trial court’s

application of the two other enhancement factors breached a clear and unequivocal rule of law.9 The

second prerequisite for plain error review is therefore satisfied.

3. Adverse Effect

We turn now to the third criterion for plain error review: whether a substantial right of the

accused has been adversely affected. The State concedes that this prerequisite has been satisfied, and

we agree with that concession. According to the Supreme Court, the trial court’s determination that

enhancement factors (2) and (9) were applicable to increase the Defendants’ sentences deprived the

Defendants of their Sixth Amendment right to have a jury determine whether those enhancement

factors applied. See Cunningham, 127 S. Ct. at 860 (holding that the trial court’s imposition of a

harsher sentence on the basis of judicial factfinding “denied petitioner his right to a jury trial”).

8

In 2005, the General Assembly amended the Reform Act to comply with the Sixth Amendment as interpreted

by Apprendi and its progeny. See 2005 Tenn. Public Acts ch. 353, § 6 (codified at T enn. Code Ann. § 40-35-210

(2006)). Imposition of a “presumptive sentence” in the absence of enhancing and mitigating factors is no longer

mandatory. See Tenn. Code Ann. § 40-35-210(c) (2006).

9

W e are compelled to draw this conclusion in light of the Supreme Court’s order of remand. W e are constrained

to point out, however, the numerous cases the Supreme Court has decided in an effort to clarify what Justice Ginsburg

describes in Cunningham as Apprendi’s “bright-line rule,” 127 S. Ct. at 868, each of which has resulted in multiple

opinions. See, e.g., Ring v. Arizona, 536 U.S. 584 (2002); Blakely, 542 U.S. 296; Booker, 543 U.S. 220; Cunningham,

127 S. Ct. 856.

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4. Waiver of Issue for Tactical Reasons

The fourth consideration for plain error review is whether the record indicates that the

Defendants waived their Sixth Amendment claims for tactical reasons. Neither the pleadings filed

by the Defendants with the trial court nor the transcript of the sentencing hearing provides any

indication as to why the Defendants initially failed to raise a Sixth Amendment challenge to the trial

court’s use of enhancement factors (2) and (9). In their pre-Gomez I briefs before this Court,

however, both Defendants argued that their Sixth Amendment claims for relief from their sentences

did not arise until Blakely was decided, more than two years after their sentencing hearing.

It is true that this Court has refused to find plain error where the record discloses that the

alleged “error” resulted from a tactical choice by the defense. For instance, in Smith, the Court of

Criminal Appeals determined sua sponte that the defendant was entitled to relief for plain error

because the trial court did not provide the jury with a particular instruction regarding an evidentiary

matter. 24 S.W.3d at 282. However, this Court subsequently determined that the defendant had not

objected to admission of the evidence and that the record was “clear” that the defense’s “decision

not to object . . . was a result of a deliberate, tactical trial strategy.” Id. at 283. Indeed, during oral

argument before this Court, defense counsel conceded “that the decision not to object . . . was a

‘tactical decision.’” Id. Accordingly, this Court determined that the defendant was not entitled to

relief under the plain error doctrine. Id. at 284; cf. Bledsoe, 226 S.W.3d at 355 (holding that the

Court of Criminal Appeals erred in granting relief for plain error where the defendant failed to

include in his appeal “key parts of the record” resulting in uncertainty as to whether the defendant’s

failure to request a particular jury instruction was a tactical decision); Studdard v. State, 182 S.W.3d

283, 288 (Tenn. 2005) (holding that all of the criteria for plain error were not met because “[t]he

record strongly suggests the defendant pleaded guilty to . . . a lower grade offense [than that charged]

for tactical reasons”).

In contrast, the record in this case is silent and does not establish that the Defendants made

a tactical decision to waive their Sixth Amendment claims. Rather, it appears that defense counsel,

like many others in the legal community, did not realize until Blakely was decided that the

Defendants had a potential claim for relief under Apprendi.10 Accordingly, we conclude that the

fourth prerequisite for plain error has been met.

5. Substantial Justice

We turn now to the final prerequisite: whether consideration of the trial court’s error in

sentencing the Defendants is “necessary to do substantial justice.” We hold that it is.

10

Indeed, as pointed out by the dissent filed in Gomez I, prior to Blakely this Court held in Graham v. State, 90

S.W .3d 687, 691-92 (Tenn. 2002), that, so long as a trial court sentenced a defendant within the applicable range, the

trial court’s reliance on judicially determined enhancement factors did not offend the Sixth Amendment under Apprendi.

See Gomez I, 163 S.W.3d at 669 (Anderson, J., dissenting).

8

As set forth above, one of the enhancement factors relied upon by the trial court in sentencing

each Defendant was each Defendant’s “previous history of criminal convictions or criminal behavior

in addition to those necessary to establish the appropriate range.” Tenn. Code Ann. § 40-35-114(1)

(Supp. 2001). Under Apprendi, a trial court may properly consider without jury findings a

defendant’s prior convictions, as well as prior criminal behavior admitted to by a defendant, when

imposing sentence. See Apprendi, 530 U.S. at 488-90.

The proof at the sentencing hearing established that Defendant Londono had previous

convictions for manslaughter and theft from interstate commerce. Defendant Londono also admitted

to prior illegal drug use. The proof at the sentencing hearing was less clear as to Defendant Gomez’

criminal history. The prosecutor contended that Defendant Gomez had previous convictions of

robbery and theft from interstate commerce. As to the robbery conviction, the prosecutor stated that

he had contacted the New York authorities and gotten the case number but had not obtained a

certified copy of the conviction. Defendant Gomez conceded his conviction for theft from interstate

commerce but refused to acknowledge that he had been convicted of robbery in New York. Yet, the

presentence report reflects in the “Financial Information” section that Defendant Gomez is indebted

in the amount of $500,000 for “Federal Restitution (Robbery).” Following this information is the

comment, “The restitution is owed to the federal government for a robbery conviction in another

case.” Defendant Gomez did not object to this information in the presentence report which was

made an exhibit to his sentencing hearing. This commentary in the presentence report, unobjected

to by Defendant Gomez, supports the prosecutor’s assertion that Defendant Gomez has a previous

robbery conviction. Nevertheless, the trial court relied upon only the theft from interstate commerce

conviction in applying enhancement factor (1) to Defendant Gomez.

The trial court accorded “great weight” to the Defendants’ prior criminal histories. However,

the trial court also relied upon each Defendant’s being “a leader in the commission of an offense

involving two (2) or more criminal actors,” Tenn. Code Ann. § 40-35-114(2) (Supp. 2001), while

imposing sentence for all of the Defendants’ convictions, and upon each Defendant having

“possessed or employed a firearm, explosive device or other deadly weapon during the commission

of the offense,” id. at (9), while imposing sentence for the facilitation of felony murder offense. The

trial court’s application of these two enhancement factors depended on the type of judicial fact-

finding prohibited by Apprendi.

That the trial court gave “great weight” to the Defendants’ prior criminal histories does not

necessarily render irrelevant its application of enhancement factors (2) and (9). And while the

Reform Act allows this Court on appeal of a sentence to “[a]ffirm, reduce, vacate or set aside the

sentence imposed,” Tenn. Code Ann. § 40-35-401(c)(2) (2006), the record in this case as to the

Defendants’ criminal histories is not sufficiently well-developed for us to determine the proper

sentences based on this enhancement factor alone. Therefore, because the trial court’s reliance upon

enhancement factors (2) and (9) was constitutionally inappropriate, we conclude that granting the

Defendants relief is necessary to do substantial justice in this case. We therefore vacate the

Defendants’ sentences and remand to the trial court for a resentencing hearing at which the trial court

will have an opportunity both to determine the full scope of the Defendants’ criminal histories and

9

to consider whether imposition of the maximum sentence on all convictions is appropriate. Our

holding does not, however, affect the trial court’s determinations regarding manner of service or the

imposition of consecutive sentences.

CONCLUSION

The trial court erred in applying enhancement factors for being a leader in the commission

of the offenses and in possessing or employing a firearm to any of the Defendants’ sentences.

Because the trial court’s error adversely affected the Defendants’ unwaived rights to a jury trial, and

because the record on appeal does not allow us to determine the proper sentences to be imposed,

substantial justice requires that we vacate the Defendants’ sentences and remand this matter to the

trial court for resentencing in a manner consistent with this opinion. In all other respects, the trial

court’s judgments are affirmed.

It appearing that the Defendants are indigent, the costs of this cause are taxed to the State of

Tennessee.

________________________________

CORNELIA A. CLARK, JUSTICE

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