applying plain error review in determining that Tennessee's statutory sentencing procedures do not violate Blakely, in spite of the State's concession that such violations had occurred, because the Tennessee Criminal Sentencing Reform Act of 1989 is "`an indeterminate,' non-mandatory, advisory sentencing scheme which merely requires judges to consider enhancement factors, along with other information, when exercising their discretion to select an appropriate sentence within the statutory range."
How later courts described this case
- applying plain error review in determining that Tennessee's statutory sentencing procedures do not violate Blakely, in spite of the State's concession that such violations had occurred, because the Tennessee Criminal Sentencing Reform Act of 1989 is "`an indeterminate,' non-mandatory, advisory sentencing scheme which merely requires judges to consider enhancement factors, along with other information, when exercising their discretion to select an appropriate sentence within the statutory range."
- observing that the Court’s subsequent plurality opinion in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), seemed to “indicate[ ] that Appren-di only applied when a judge found facts used to sentence a defendant above the range for the crime of which he had been convicted”
- noting that “this Court has regularly limited retroactive application of new rules to only those cases pending on direct review in which the issue has been timely raised and properly preserved” (citations omitted)
- noting that the Tennessee Supreme Court was not the final arbiter of federal constitutional law and that a defendant who is dissatisfied with an unfavorable state decision has the option to file a federal appeal
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by State v. Gomez, 2007 Tenn. LEXIS 884 (2007)
163 S.W.3d 632, 648 (Tenn. 2005), overruled on other grounds by State v. Gomez, 239 S.W.3d 733
The opinion
IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
Heard at Knoxville
January 4, 2005 Session
STATE OF TENNESSEE v. EDWIN GOMEZ and JONATHAN S.
LONDONO
Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Davidson County
No. 2001-A-280 Cheryl Blackburn, Judge
No. M2002-01209-SC-R11-CD - Filed May 18, 2005
ORDER DENYING PETITION FOR REHEARING
Petitions for rehearing have been filed by Edwin Gomez, Jonathan Londono, the Attorney
General and Reporter,1 and amicus curiae, Tennessee Association of Criminal Defense Lawyers.
The petitioners primarily argue that the majority opinion rests upon a misunderstanding and
misapplication of the United States Supreme Court’s decisions in Jones v. United States, 526 U.S.
227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002),
Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and United States v. Booker, __ U.S.
__, 125 S. Ct. 738 (2005).
The arguments advanced in the petitions to rehear were considered and rejected by a majority
of this Court in its original opinion. We remain convinced that Blakely must be read in light of
Booker. To do otherwise would not serve to “preserve Sixth Amendment substance.” Booker, 125
S. Ct. at 752. In Booker, Justice Stevens explained:
If the Guidelines as currently written could be read as merely advisory
provisions that recommended, rather than required, the selection of particular
sentences in response to differing sets of facts, their use would not implicate the
Sixth Amendment. We have never doubted the authority of a judge to exercise broad
discretion in imposing a sentence within a statutory range. Indeed, everyone agrees
that the constitutional issues presented by these cases would have been avoided
entirely if Congress had omitted from the [Sentencing Reform Act] the provisions
that make the Guidelines binding on district judges; it is that circumstance that makes
1
The Attorney General seeks rehearing only as to Part III.C of the majority opinion and argues that the
Tennessee Criminal Sentencing Reform Act of 1989 (“Reform Act”) violates the Sixth Amendment.
the Court’s answer to the second question presented possible. For when a trial judge
exercises his discretion to select a specific sentence within a defined range, the
defendant has no right to a jury determination of the facts that the judge deems
relevant.
Id. at 750 (citations omitted). The Court harmonized the Federal Sentencing Guidelines with the
Sixth Amendment by applying in Booker a remedy which created a discretionary sentencing scheme.
Id. at 764. We are not persuaded that the differences between the Reform Act and the post-Booker
Federal Sentencing Guidelines are constitutionally significant. If the Sixth Amendment
countenances a sentencing scheme that permits judges to find facts relevant to sentencing and affords
judges discretion to select a sentence anywhere within a statutory range, even in the absence of
enhancing facts, we are unable to conclude that the Sixth Amendment forbids a sentencing scheme
in which a state legislature limits judicial discretion by designating the presumptive sentence that
must be imposed when a judge finds no enhancement or mitigating factors.
The petitions for rehearing are DENIED.
Justice Anderson and Justice Birch continue to adhere to the position stated in the original
dissenting opinion, and on those grounds, would grant the petitions to rehear.
FOR THE COURT:
_______________________________
FRANK F. DROWOTA, III,
CHIEF JUSTICE
Concurring:
Janice M. Holder and William M. Barker, JJ.
Dissenting:
E. Riley Anderson and Adolpho A. Birch, Jr., JJ.
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