Appendix — Gomez v. Tennessee, 127 S. Ct. 1209 (2007) (No. 05-296)
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05-296 AUG 15 2005
NO. 05-
& oo ee
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 2005
>
Edwin Gomez and Jonathan S. Londono,
Petitioners,
v.
Siate of Tennessee,
Respondent
On Petition for a Writ of Certiorari to the Supreme
Court of Tennessee
+ —
APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI
~
Cynthia M. Fort Wade V. Davies
315 Deaderick St. Ritchie, Fels & Dillard, P.C.
Suite 109 606 W. Main Street
Nashville TN 37238 Suite 300
615-244-3300 Knoxville, TN 37902
(Counsel of Record 865-637-0661
for Gomez) (Counsel of Record
for Londono)
App. 1
TABLE OF CONTENTS
TABLE OF CONTENTS .............5. App. i
STATE OF TENNESSEE v. EDWIN GOMEZ
AND JONATHAN LONDONO
OPINION OF TENNESSEE
SUPREME COURT
163 S.W.3d 632 (Tenn. 2005)
(Filed April 15,2005) ........... App. |
ORDER OF THE TENNESSEE
SUPREME COURT DENYING
PETITION FOR REHEARING
(Filed May 18,2005) ............ App. 141
OPINION OF THE TENNESSEE COURT
OF CRIMINAL APPEALS
(Filed February 18,2004) ......... App. 146
[STATE’S] PETITION FOR REHEARING
IN THE TENNESSEE SUPREME
ORE 6650 eee App. 227
RELEVANT TENNESSEE STATUTES:
TENNESSEE CODE ANNOTATED
re eee & App. 233
TENNESSEE CODE ANNOTATED
pew 8 Perret ere App. 233
App. i)
TENNESSEE CODE ANNOTATED
§ 40-35-103 ........ ai App. 235
TENNESSEE CODE ANNOTATED
§ 40-35-110 lL ae App. 237
TENNESSEE CODE ANNOTATED
eS eee App. 238
TENNESSEE CODE ANNOTATED
§ 40-35-1114 ........ “—TrerTyYTE. TY...
TENNESSEE CODE ANNOTATED
a .e eee App. 245
TENNESSEE CODE ANNOTATED
DT Tits eneceecceuce .. App. 246
TENNESSEE CODE ANNOTATED
§ 40-35-2038 ........000005. _... App. 248
TENNESSEE CODE ANNOTATED
§ 40-35-210 ...... - TITTTITs,. Y..
TENNESSEE CODE ANNOTATED
§ 40-35-21] ae App. 257
TENNESSEE CODE ANNOTATED
DE seececceceeec: .... App. 259
TENNESSEE SENTENCING GRID
CHART ..........00005. _. App. 262
App. |
Supreme Court of Tennessee,
at Nashville.
STATE of Tennessee
Edwin GOMEZ and Siniiien S. Londono.
Jan. 4, 2005 Session at Knoxville.
April 15, 2005.
Order Denying Petition for Rehearing May 18, 2005.
Background: Defendants were convicted in a jury tral in
the Criminal Court, Davidson County, Cheryl Blackburn, J.,
of conspiracy to commit aggravated robbery, facilitation of
felony murder, facilitation of especially aggravated robbery,
and facilitation of aggravated robbery. Defendants appealed.
The Court of Criminal Appeals affirmed. Appeal was
permitted.
Holdings: On denial of rehearing, the Supreme Court,
Frank F. Drowota III, C.J., held that:
(1) plenary retroactive application of new federal
constitutional rule, as opposed to plain error review under
App. 2
new rule, applies only if appellate review was preserved as to
the issue in question;
(2) harmless error standard applies, when new federal
constitutional rule is applied retroactively;
(3) under plain error standard, »ne defendant was not
entitled to relief as to violation of Confrontation Clause rights
under Crawford, relating to admission of unavailable
accomplice’s out-of-court statement;
(4) error was harmless as to Crawford error with respect to
other defendant, and
(5) Tennessee Criminal Sentencing Reform Act of 1989
does not violate Sixth Amendment right to jury tral on facts,
other than pnor convictions, which are necessary to support
sentence exceeding maximum authorized by facts established
by plea of guilty or jury verdict.
Affirmed.
App. 3
E. Riley Anderson, J., filed an opinion concurring in part and
dissenting in part, in which Adolpho A. Birch, Jr., J., joined.
Glenn R. Funk and Cynthia M. Fort, Nashville, Tennessee,
attorneys for Appellant, Edwin Gomez.
David A. Collins, Nashville, Tennessee, and James Stafford,
Houston, Texas, Attorneys for Appellant, Jonathan S.
Londono.
Paul G. Summers, Attorney General and Reporter; Michael
Moore, Solicitor General; Gordon W. Smith, Associate
Solicitor General; Victor S. (Torry) 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 Amicus Curiae, The Tennessee
Association of Criminal Defense Lawyers.
App. 4
OPINION
FRANK F. DROWOTA, Ill, C.J., delivered the opinion of the
court, in which JANICE M. HOLDER, and WILLIAM M.
BARKER, JJ., joined. E. RILEY ANDERSON, J., filed a
concurring and dissenting opinion, in which ADOLPHO A.
BIRCH, JR., J., jowed.
We granted this appeal to determine whether the
defendants are entitled to relief on their claim that admission
of testimony about a co-defendant's oral statement violated
their Sixth Amendment night to confrontation and whether the
defendants’ sentences were imposed in violation of their Sixth
Amendment nght to tral by jury. We conclude that
admission of testimony about a co-defendant's oral statement
violated the defendants’ Sixth Amendment night to
confrontation because the defendants had no prior
opportunity te cross-examine the co-defendant. See
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
App. 5
L.Ed.2d 177 (2004). Nevertheless, we conclude that Gomez
is not entitled to relief on this claim because he has failed to
preserve it for review and has failed to establish the
prerequisites for obtaining relief via plain error .eview.
Although Londono preserved the issue for plenary appellate
review, we conclude that he is not entitled to relief because
the constitutional error is harmless beyond a reasonable
doubt. Finally, we conclude that the defendants’ sentences
were not imposed in violation of their Sixth Amendment nght
to jury trial. See United States v. Booker, --- U.S. ----, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington,
$42 U.S. 296, 124$.Ct. 2531, 159 L.Ed.2d 403 (2004). Thus,
the defendants are not entitled to relief on this claim.
Accordingly, the judgment of the Court of Criminal Appeals
is affirmed.
App. 6
*637 I. Factual Background
On March 16, 1999, Carlyle & Company Jewelers,
(“Carlyle & Company”), a retail store located in the Green
Hills Mall of Nashville, put on a special one-day “trunk”
showing of approximately 100 Rolex watches with an
estimated value of $750,000. The sales event had been
advertised throughout the Nashville area. The next day,
March |7, 1999, security guards Roy Rogers (“Rogers’’) and
Eugene Nagele (““Nagele’’) arrived at the store shortly before
9:00 a.m. to retrieve and transport the watches to another
store in the Nashville area for a similar event. For transport,
the watches were stored in metal boxes, which were then
stacked onto a luggage cart. Shortly after 9:00 a.m., Rogers
and Nagele pushed the luggage cart from the store into the
adjoining Green Hills Mall parking garage, where they had
parked. Before they arrived at their vehicle, assailants
attacked Rogers and Nagele from behind and stole the
App. 7
watches. [FN1] Nagele testified that he heard the sound of
footsteps “rushing” toward him, but before he could turn
toward the assailants, he sustained a blow to the back of his
head. Before losing consciousness, Nagele heard a gunshot.
When he regained consciousness, Nagele heard someone
calling for hirn. Realizing that Rogers had been shot, Nagele
rushed to assist him. Twenty-one days later, Rogers died as
a result of complications from a single gunshot wound.
Although Nagele was unable to identify any of the assailants,
he recalled hearing them speaking a language other than
English.
FN1. The assailants also sto! Nagele’s Colt pistol valued at
$1,500.
Deborah Sloan (“Sloan”) testified that she arrived with
her two young children at Green Hills Mall between 9:10 and
9:15 a.m. on March 17, 1999. After parking in the garage
adjoining the mall, but before exiting her minivan, Sloan
App. 8
“heard a bang, a loud bang, and a lot of running and rustling
and things like that.” Turning toward this noise, Sloan saw
one man lying on the ground, a second man “on his hands and
knees fac{ing] away from [her],” and three other men “just
running around{[.]"” Two of these men carried away the metal
boxes containing the watches, and the third man “lean{ed]
over beside the man who was lying on the ground and
pick[ed] up a gun.” The three men then departed in a “very
nice” “deep red” or “purplish-maroon” Chrysler minivan.
Sloan described the three men as young, in their “twenties,”
with “dark skin, dark hair,” and “fairly-average height and
weight.” When shown photographic arrays prior to tral,
Sloan identified Edwin Gomez (“Gomez’’) and Jonathan S.
Londono [FN2] (“Londono”) (collectively “the defendants”)
as two of the men she had seen take the boxes and gun and
depart in the minivan on March 17, 1999. She again
identified Gomez and Londono at tral.
App. 9
FN2. She also identified co-defendant Bryant Guartos
(“Guartos”), who was tried separately and convicted of
conspiracy to commit aggravated robbery, felony murder of
Rogers, especially aggravated robbery of Rogers, and
aggravated robbery of Nagele.
Christina Hudson (“Hudson”), a Carlyle & Company
employee, testified that she had arrived and parked in the
Green Hills Mall parking garage shortly before 9:00 a.m. on
the day of the robbery and shooting. While waiting in her car
for a co-worker to arrive, Hudson noticed a dark-skinned
male, whom she described as either Hispanic or African-
American, enter the passenger side of a purplish-colored
minivan. When the man opened the van door, Hudson saw
three other men slouched down in the back of the vehicle.
*638 Hudson was unable to identify any of the men in the
van.
App. 10
Barbara Franklin (“Franklin”), also an employee of
Carlyle & Company, testified that two Hispanic men had
come into the store on the afternoon before the robbery.
Franklin recalled that the shorter of the two men had asked
many questions about the watches and about which
merchandise would remain in the store after the one-day
event. This man had “spoke[n]} English very haltingly” as if
“English [were] not his first language,” and the taller man had
not spoken at all.[FN3}]
FN3. Franklin later identified co-defendant Guartos as the
shorter man, but she failed to identify the taller man who had
accompanied Guartos.
After hearing news reports about the crime, Michelle
Nicholson (“Nicholson”) contacted the police and told them
that she had noticed a maroon van with Florida license plates
traveling toward Nashville on Interstate 40 shortly after 8:00
am. on March 17, 1999. Nicholson observed the van
App. I!
“weaving in and out of traffic” and saw four men seated in
the vehicle, all of whom she described as Hispanic with “dark
hair.” Nicholson recalled that the van later exited Interstate
440 onto Hillsboro Road going toward Green Hills Mall.
Based on Nicholson's tip and information which witnesses
and provided at the scene, investigators canvassed hotels and
motels along the interstate highways, westbound to the
Davidson County line, secking information concerning
Hispanic men traveling in a maroon van. On March 18, 1999,
investigators discovered that four Hispanic men, driving a
white van and a maroon van, had rented two rooms at the
Howard Johnson's Motel at interstate 40 and Charlotte Pike.
Security videotapes from the motel showed two men at the
front desk, a maroon van and a white van in the motel parking
lot, and persons coming and going from the vans. Although
the tapes were not sufficiently clear to identify these persons,
App. 12
the front desk clerk at the motel identified Londono [FN4]
from photographic arrays.
FN4. The clerk also identified Guartos but was unable to
identify Gomez.
Investigators obtained additional evidence from the motel
rooms. Inside the closet of Room 204, investigators found
ammunition consistent with the bullet that struck the victim.
Investigators recovered from inside this ammunition box a
fingerprint, which later was matched to Londono's nght
middle finger. Investigators found another fingerprint on the
telephone extension in Room 204, which later was matched
to Gomez's right middle finger.[FN5] Housekeepers also
discovered in Room 204 a seat that had been removed from
a 1996 or 1997 Chrysler minivan, and this seat was turned
over to police investigators.
FNS. Investigators also discovered Guartos's fingerprint on
the telephone inside this room.
App. 13
Telephone records revealed that a call had been made on
March 14, 1999, from the motel to a pay telephone located
outside a restaurant “[a}bout a block-and-a-half” down the
street from the Green Hills Mall. Another call had been made
on March 16, 1999, at 7:10 a.m. from the motel to a pay
telephone located inside the mall, directly across from and
facing Carlyle & Company. On March 15 and 16, 1999, a
calling card had been used to place telephone calls from the
motel room and from a Nashville restaurant to two different
numbers in Bogota, Columbia. The same calling card was
used on the afternoon of Mafch 17, 1999, to place a call from
Montgomery, Alabama, to Miami, Florida and was used
again on the morning of March 18, 1999, to place a call to
*639 Bogota, Colombia from Gomez's home telephone
number in Miami, Florida.
Julie Jimenez (“Jimenez”), who had lived with Londono
in Miami in the spring of 1999, testified that Londono and
App. 14
Gomez lived in the same apartment complex and that Gomez
visited Londono's apartment daily. Londono told Jimenez
that he and Gomez were cousins. Before leaving town for
“(sjeven or ten days” in the spring of 1999, Londono told
Jimenez that he was going somewhere to make some money,
but he refused to tell her where he was going. Jimenez
recalled that Londono ieft Miami with Gomez, Bryant
Guartos (“Guartos”), Guartos’ wife Maria Sierra, and three
other Hispanic men whose names Jimenez did not know. The
group left Miami in two vehicles, a white van and a maroon
van. Shortly before he returned to Miami, Londono
telephoned Jimenez, telling her that he had been to
Tennessee, that he had Rolex watches, and that he planned to
give her a Rolex watch. Jimenez heard Gomez's voice in the
background during this conversation.
When Londono returned to Miami, he gave Jimenez some
Nashville postcards and a report of the trip. Londono told
App. 15
Jimenez the group had stolen Rolex watches from a jewelry
store in a shopping mall in Tennessee. Londono said the
group had drawn their guns and instructed everyone to lie on
the floor. When a security guard lying on the floor reached
for his gun, Londono kicked the man and grabbed his gun.
According to Londono, someone else shot the security guard
because the security guard had seen Londono's face.
Jimenez recalled that Londono received his share of the
money from the sale of the watches a few days after returning
to Miami. On April 4, 1999, Jimenez and Londono used the
money for a shopping spree, spending approximately $3,000
cash on furniture, a television, and other items for Londono’s
apartment. Concerned that someone would be looking for
him, Londono insisted that Jimenez purchase everything in
her name.
On Apnil 25, 1999, Detective Gerard Starkey of the
Miami-Dade Police Department arrested Londono on
App. 16
unrelated charges. Detective Starkey searched Londono's
burgundy van and found a postcard of the Nashville riverfront
area. Thereafter, Detective Starkey located Gomez at his
apartment in the Fontainebleau Milton complex and arrested
him on unrelated charges. Detectives found $19,600 in cash
concealed between the kitchen counter and the dishwasher in
Gomez's apartment. Detectives also discovered a furniture
receipt for $570, dated March 25, 1999, and three money
transfer receipts, evidencing money transfers totaling $6,000
from Gomez and his roommate to persons in Bogota,
Columbia. The telephone numbers of the persons to whom
the money had been sent matched the telephone numbers to
which calls had been placed from the motel and restaurant in
Nashville. Two of the money transfers occurred on March
23, 1999. The date on the third receipt was indiscernible.
Detectives from Nashville questioned Londono and
Gomez in Miami about their involvement in the March 17,
App. 17
1999, robbery and shooting at Green Hills Mall. Both men
denied ever being in Nashville. These detectives also
interviewed Guartos in Miami, and he confessed to his
involvement in the crime, providing an oral statement.
Guartos later denied making this statement. However, at the
Gomez-Londono trial, the detectives were allowed to testify
about what Guartos said to them about the crime. Detective
Harold Haney testified as follows:
[Guartos] stated that he and others were in Nashville.
They used two rented *640 vans which they got from
someone in Miami. One was a wine colored or red. [sic] The
other was white. They stayed at the Howard Johnson Motel
and used two rooms. He and a woman took the seat out of
the white van at the motel because they needed more room.
He stated that they got two-hundred-thirty-thousand dollars
($230,000.00) for the watches from the robbery and he used
App. 18
his share of forty-thousand dollars ($40,000.00) to buy his
home in Miami.[FN6]}
FN6. Detective Norns Tarkington summarized Guartos’
Statement as follows:
{Guartos] stated that he and the others were in Nashville.
They stayed at the Howard Johnson's and they ... came to
Nashville in two rented vans. One was a wine color or red
color and the other one was white, and they took the seat out
of one of the vans because they needed more room, and he
stated they so!d the watches for two-hundred-thirty-thousand
dollars ($230,000.00) in Miami, and his proceeds from that,
his take of that was forty-thousand dollars ($40,000.00).
Gomez and Londono were indicted and tried on the
following charges: Count |, conspiracy to commit aggravated
robbery; Count II, felony murder of Rogers; Count III,
especially aggravated robbery of Rogers; and Count IV,
aggravated robbery of Nagele. The jury convicted the
App. 19
defendants of conspiracy, as charged in Count I. As to each
of the remaining charges, the jury found the defendants guilty
of the following lesser-included offenses: facilitation of
felony murder, facilitation of especially aggravated robbery,
and facilitation of aggravated robbery. The defendants each
received the maximum, sentence within the range for each
conviction: six years for conspiracy, 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 judge ordered consecutive
service of the sentences for an effective forty-nine year
sentence.
Gomez and Londono appealed, and the Court of Criminal
Appeals affirmed the judgment of the trial court. Thereafter,
this Court granted the defendants’ applications for permission
to appeal.
App. 20
Il. Admission of Guartos' Statement
A. Crawford v. Washington
As noted previously, Guartos, who had been separately
tried and convicted before the Gomez-Londono trial,
provided an oral statement to the police regarding the crime.
Because Guartos invoked his Fifth Amendment privilege
against self-incrimination at the Gomez-Londono trial, the
prosecution sought to admit testimony as to his statement
under the hearsay exception for statements against penal
interest. See Tenn. R. Evid. 804(b)(3) [FN7]. Londono
objected, arguing that admitting the statement would violate
his Sixth Amendment right to confront Guartos. Gomez also
initially objected to the statement's admission, *641 but he
withdrew the objection after the prosecution agreed not to
seek admission of a certain part of the oral statement. After
confirming that Gomez had withdrawn his objection, the trial
court carefully considered Londono’s objection. Ultimately,
App. 21
the trial court allowed the detectives to testify about
interviewing Guartos and to testify about his oral statement,
but the detectives did not testify about the portion to which
Gomez had objected. Detective Haney testified as follows:
FN7. Rule 804(b)(3) provides, in pertinent part:
(b) Hearsay Exceptions. The following are not excluded
by the hearsay rule if the declarant is unavailable as a
witness:
(3) Statement Against Interest. A statement which was at
the time of its making so far contrary to the declarant's
pecuniary or proprietary interest, or so far tended to subject
the declarant to civil or criminal liability or to render invalid
a claim by the declarant against another, that a reasonable
person in the declarant's position would not have made the
statement unless believing it to be true.
App. 22
Rule 804(a) delineates the situations in which a declarant is
“unavailable as a witness.” The defendants have never
contended that the trial court erred by finding Guartos
unavailable as a witness for purposes of Rule 804(b)(3).
[Guartos] stated that he and others were in Nashville.
They used two rented vans which they got from someone in
Miami. One was a wine colored or red. [sic] The other was
white. They stayed at the Howard Johnson Motel and used
two rooms. He and a woman took the seat out of the white
van at the motel because they needed more room. He stated
that they got two-hundred-thirty-thousand dollars
($230,000.00) for the watches from the robbery and he used
his share of forty-thousand dollars ($40,000.00) to buy his
home in Miami.
Immediately after each detective testified, the tral court
provided a cautionary instruction, which limited jury
consideration of Guartos’ statement to the issue of whether
App. 23
the conspiracy charged in Count | existed. The cautionary
instruction expressly forbade jury consideration of Guartos’
statement as to Gomez's and Londono’s participation in the
conspiracy.
Both in his motion for new trial and on appeal to the
Court of Criminal Appeals, Londono challenged the trial
court's ruling as violative of his Sixth Amendment right to
confront the witnesses against him. The intermediate
appellate court applied Ohio v. Roberts, 448 U.S. 56, 100
S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford
v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004), the then-controlling precedent for analyzing
challenges based on the Confrontation Clause. In Roberts,
the United States Supreme Court held that out-of-court
statements made by a nontestifying declarant are
constitutionally admissible against an accused at trial only if
the prosecution demonstrates that the declarant is unavailable
App. 24
and establishes either that the statements fall within a firmly-
rooted hearsay exception or that the statements possess
“particularized guarantees of trustworthiness.” /d. at 66, 100
S.Ct. 2531. Applying this test, the Court of Criminal Appeals
concluded that the trial court had properly admitted testimony
summarizing Guartos’ oral statement. Although it did not fall
within a firmly-rooted exception to the hearsay rule, the Court
of Criminal Appeals concluded that the testimony “was
nonetheless supported by sufficient guarantees of
trustworthiness” to justify its admission. In an opinion filed
February 18, 2004, the Court of Criminal Appeals thus
rejected Londono's Sixth Amendment claim.
Less than one month later, however, the United States
Supreme Court rendered its decision in Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004), which abrogated the two-prong test of Roberts. The
Court in Crawford held that “testimonial” out-of-court
App. 25
statements by a nontesti fying declarant may be admitted only
if the declarant is unavailable to testify and the defendant had
a prior opportunity to cross-examine the declarant. Crawford,
124 S.Ct. at 1374. The Crawford Court declared cross-
examination to be the “constitutionally prescribed method of
assessing reliability” of testimonial statements in criminal
trials /d. at 1370. Upon surveying the historical record, the
Court derived “two inferences about the meaning of the Sixth
Amendment.” /d. at 1363. “First, the principal evil at which
the Confrontation Clause was directed was the civil-law mode
of criminal procedure, *642 and particularly its use of ex
parte examinations as evidence against the accused.” /d.
Second, “the Framers would not have allowed admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had
had a prior opportunity for cross-examination.” /d. at 1365.
The Court concluded by reiterating its holding:
App. 26
Where nontestimonial hearsay is at issue, it is wholly
consistent with the Framers’ design to afford the
States flexibility in their development cf hearsay law-
-as does Roberts, and as would an approach that
exempted such statements from Confrontation Clause
scrutiny altogether. Where testimonial evidence is at
issue, however, the Sixth Amendment demands what
the common law required: unavailability and a pnor
opportunity for cross-examination. We leave for
another day any effort to spell out a comprehensive
definition of “testimonial.” Whatever else the term
covers, it applies at a minimum to prior testimony at
a preliminary hearing, before a grand jury, or at a
former trial; and to police interrogations. These are
the modern practices with closest kinship to the
abuses at which the Confrontation Clause was
directed.
Jd. at 1374 (footnote omitted). The Court used “the term
‘interrogation’ in its colloquial, rather than any technical legal
{ ] sense” and explained that a “recorded statement,
knowingly given in response to structured police questioning,
qualifies under any conceivable definition.” /d. at 1365 n. 4.
Relying upon Crawford, both Londono and Gomez now
argue that the introduction of Guartos’ statement violated
their Sixth Amendment nght of confrontation. The State
App. 27
acknowledges that, had Crawford been decided prior to the
Gomez-Londono trial, Guartos’ statement would have been
inadmissible, nonetheless, the State asserts that the
defendants are mot now entitled to relief on this basis. In
particular, the State argues that Gomez either affirmatively
waived or procedurally forfeited plenary appellate review of
this issue. As to Londono, the State asserts that any error was
harmless beyond a reasonable doubt.
'l] We begin by accepting the State’s concession that
Crawford would have precluded admission of Guartos’
statement had Crawford governed the trial court's analysis of
this issue. The statement, a product of police interrogation,
qualifies as “testimonial” evidence, and the defendants had no
prior opportunity to cross-examine Guartos. Thus, were
Gomez and Londono tried today, Crawford would bar
admission of Guartos’ statement. What is not clear, however,
App. 28
is whether Crawford entitles Gomez or Londono to relief in
this appeal.
B. Griffith v. Kentucky
[2] The answer to this question begins with Griffith v.
Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649
(1987). In Griffith, the United States Supreme Court held that
“a new rule for the conduct of criminal prosecutions 1s to be
applied retroactively to ai) cases ... pending on direct review
or not yet final....” Griffith, 479 U.S. at 328, 107 S.Ct. 708.
By abrogating the two-prong test of Xoberts and reshaping
the analysis courts must apply when evaluating the
admissibility of evidence under the Confrontation Clause,
Crawford announced a new rule within the meaning of
Griffith. See Graham vy. Collins, 506 U.S. 461, 467,113 S.Ct.
892, 122 L.Ed.2d 260 (1993) ("/T]here can be no dispute
that a decision announces a new rule if it expressly overrules
a prior decision...."); see also State v. Dedman, 136 N.M
App. 29
561, 102 P.3d 628, 636 (2004) (recognizing *643 that
Crawford announced a new rule); Commonwealth v. Gray,
867 A.2d 560, 574 (Pa.Super.2005) (recognizing that
Crawford announced a new rule insofar as it overruled Ohio
v. Roberts ). Furthermore, this appeal qualifies as a case
“pending on direct review” at the time Crawford announced
the new rule. At first glance, then, Griffith would seem to
require us to apply the Crawford rule in this appeal, without
regard to whether the issue has been preserved for review.
Closer analysis reveals, however, that Griffith mandates
plenary retroactive application of new rules to cases pending
on direct review only if a defendant has timely raised and
properly preserved the issue to which the new rule relates.
In mid-1985 the defendants in Griffith petitioned the
Supreme Court for certiorari while their convictions were still
pending on direct review. Griffith, 479 U.S. at 318, 107 S.Ct.
708. On April 30, 1986, while the Griffith petition was
App. 30
pending, the United States Supreme Court decided Batson v
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Griffith, 479 U.S. at 318, 107 S.Ct. 708. In Batson, the Court
rejected a portion of the reasoning of Swain v. Alabama, 380
U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In particular,
the Court rejected Swain to the extent that it had defined a
prima facie case in the context of discriminatory selection of
the jury venire as requiring proof that the prosecution had in
a series of cases repeatedly exercised peremptory challenges
to strike black jurors. Batson, 476 U.S. at 96-100, 106 S.Ct.
1712. Abrogating this requirement, the Batson Court
concluded that to establish a prima facie case a defendant
need only show that the prosecution had used peremptory
challenges to strike members of the defendant's race from the
venire in the defendant's case. /d. at 93, 96-97, 106 S.Ct.
1712.
App. 31
On June 2, 1986, the Supreme Court granted certiorari in
Griffith on the limited issue of whether Batson could be
applied retroactively to cases on direct appeal. Griffith, 479
U.S. at 320, 107 S.Ct. 708. In United States v. Johnson, 457
U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), partially
abrogated by Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct.
708, 93 L.Ed.2d 649 (1987), the Court had held that a new
rule of criminal procedure constituting a “clear break” with
past precedent was not to be applied retroactively to cases
pending on direct review. Because Batson had been a clear
break with Swain,[FN8] its retroactive application to direct
review cases was foreclosed by Johnson. Griffith, 479 U.S.
at 326, 107 S.Ct. 708.
FN8. See Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92
L.Ed.2d 199 (1986).
Notably, each of the Griffith defendants had objected
prior to Batson in the trial court to the prosecutor's racially
App. 32
discriminatory exercise of peremptory challenges.
Furthermore, the Griffith defendants had preserved their
objections at each stage of their direct appeals, even though
they clearly had failed to satisfy Swain’s prima facie showing
requirement. Griffith, 479 U.S. at 316-20, 107 S.Ct. 708
(discussing procedural history of the two cases under review)
Not surprisingly, the Griffith defendants lost at every stage
because every court applied Swain and held the defense proof
of discrimination inadequate. Griffith, 479 U.S. at 316-22,
107 S.Ct. 708. Nonetheless, the Griffith defendants continued
to press and to preserve their claims that the prosecutor had
exercised pere: sptory challenges in a racially discriminatory
manner.
Perseverance paid off for the Griffith defendants when the
United States Supreme Court granted thew certioran
petitions, *644 discarded Johnson's “clear break” rule, and
applied Batson retroactively to their appeal. Griffith, 479
App. 33
U.S. at 326-28, 107 S.Ct. 708. Citing fairness considerations
for defendants “similarly situated” to Batson, the Supreme
Court reversed the Griffith defendants’ convictions. Like the
defendant in Batson, the Griffith defendants had properly
presented and tenaciously preserved their constitutional
challenge at trial and on appeal. Importantly, the Griffith
defendants had raised and preserved this issue before the
Supreme Court decided Batson, and had done so in the face
of controlling precedent unfavorable to their position.
{3} Having thus reviewed its factual and procedural
background, we conclude that Griffith does not mandate
plenary retroactive application of new rules to pending direct
review cases without regard to whether the claim of error has
been properly preserved. Instead, Griffith simply overruled
precedent which had precluded retroactive application of new
rules to pending direct review cases.[FN9] Where, *645 as
here, a new rule is announced while a criminal case is
App. 34
pending on direct review, Griffith mandates plenary
application of the new rule only if the issue to which the new
rule relates has been timely raised and properly preserved. A
criminal defendant who has failed to properly preserve the
relevant issue is limited to seeking relief via plain error
review.
FN9. Our reading of Griffith is supported by a more recent
case which recognizes the important distinction between
issues that have been preserved and issues which have not
deen preserved. The issue in United States v. Cotton, 535
U.S. 625, 627, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), was
“whether the omission from a federal indictment of a fact that
enhances the statutory maximum sentence justifies a court of
appeals’ vacating the enhanced sentence, even though the
defendant did not object in the trial court.” Relying on
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), Cotton argued that his sentence should
App. 35
be vacated because the enhancing fact had been neither
alleged in the indictment nor submitted to the jury. Cotton,
535 U.S. at 629-30, 122 S.Ct. 1781. Reviewing his claim for
_ plain error, the Court affirmed Cotton's sentence, explaining
that “[t)}he real threat ... to the ‘fairness, integrity, and public
reputation of judicial proceedings’ would be if [Cotton],
despite the overwhelming and uncontroverted evidence that
[he had been] involved in a vast drug conspiracy, were to
receive a seritence prescribed for those committing less
substantial drug offenses because of an error that was never
objected to at trial.” /d at 634, 122 S.Ct. 1781 (citing
Johnson, §20 U.S. at 470, 117 S.Ct. 1544).
While not controlling the proper application of new
federal constitutional rules, we note 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. See, ¢.g., Hill v.
App. 36
City of Germantown, 31 S.W.3d 234 (Tenn.2000); Alcazar
v. Hayes, 982 S.W.2d 845 (Tenn.1998); City of White House
v. Whitley, 979 S.W 2d 262 (Tenn.1998); McClung v. Delta
Square Lid. P’ship, 937 S.W.2d 891 (Tenn.1996); Perez v.
McConkey, 872 S.W.2d 897 (Tenn.1994); Broadwell ex rel.
Broadwell v. Holmes, 871 S.W.2d 471 (Tenn.1994); Cook ex
rel. Uithoven v. Spinnaker's of Rivergate, Inc., 846 S.W.2d
810 (Tenn.1993); Mcintyre v. Balentine, 833 S.W.2d 52
(Tenn.1992); Hataway v. McKinley, 830 S.W.2d 53
(Tenn.1992). Adams v. State, 547 §.W.2d 553 (Tenn.1977);
Farris v. State, $35 S.W.2d 608 (Tenn. 1976).
Despite the dissent's assertions to the contrary, Farris and
Adams are excellent illustrations of this regular practice.
Farris involved several defendants, but, in the trial court, Mr.
Farris had challenged only the first paragraph of a statute
which, in other sections, required jury instructions on parole
eligibility. Although this Court ultimately invalidated that
App. 37
portion of the statute which required jury instructions on
parole eligibility, the statutory provision Mr. Farns had
challenged remained valid after this Court's decision. After
this Court denied Mr. Farris relief, he filed a petition to
rehear, arguing that he had timely raised and properly
preserved his constitutional challenge. This Court denied
rehearing, explaining, “{t}his Court operates on the basis of
errors assigned for our consideration and we have neither the
disposition nor the duty to search the record and decide cases
and controversies on the basis of unassigned error.” 535
S.W.2d at 622. In Adams, 547 S.W.2d at 556, the defendant
challenged the constitutionality of the relevant statutory
provision, but he did not base his challenge upon the
constitutional ground that had garnered a majority in Farris
Instead, Mr. Adams argued that the statute was
unconstitutionally vague, a constitutional challenge which in
Farris Chief Justice Fones and Justice Henry found to have
App. 38
merit. This Court held that by challenging the
constitutionality of the relevant statute, Adams had
sufficiently preserved the issue, even though he had not raised
the precise ground upon which the majority in Farris rested
its decision. In so holding, the Court applied Farris “to those
cases wherein the conviction has not become final and where
appropriate assignments have been made.” /d. Like Mr.
Adams, Londono is entitled to full plenary review of his
Confrontation Clause claim because he timely raised and
properly preserved his constitutional challenge to the
admission of Guartos’ statement. On the other hand, Gomez
failed to mount a constitutional challenge to the admission of
Guartos’ statement; thus, he is only entitled to plain error
review on this issue.
[4] Furthermore, even those criminal defendants who
properly preserve such issues are not automatically entitled to
relief. After the United States Supreme Court concluded in
App. 39
Shea v. Louisiana, 470 U.S. 51, 59, 105 S.Ct. 1065, 84
L.Ed.2d 38 (1985), that the new rule which it had announced
in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68
L.Ed.2d 378 (1981}, applied to cases pending on direct
review, the Court explained that retroactive application of the
new rule was “subject, of course, to established principles of
waiver, harmless error, and the like.” Shea, 470 US. at 58 n.
4, 105 S.Ct. 1065. Thus, a defendant may be entitled to
plenary appellate review but not be entitled to relief on his
claim.
C. Plain Error Review—Gomez
[S} Gomez initially objected to the statement's
introduction, but his objection was not based on the Sixth
Amendment. Guartos told the police that the group had “used
two rented vans which they got from someone in Miami for
twenty-five-hundred dollars ($2,500.00),” and Gomez
objected to allowing the detectives to testify about the amount
App. 40
paid for the rented van, in particular, the words “for twenty-
five-hundred dollars ($2,500.00).” The prosecution agreed
not to introduce testimony about this portion of the oral
statement. In responding to questions from the trial court,
Gomez confirmed that his objection had been limited as
described above and also confirmed that his objection was
withdrawn in light of the prosecution's willingness not to
introduce that testimony. Gomez did not challenge the
statement's admission in his motion for new trial or in his
appeal to the Court of Criminal Appeals. Having failed to
preserve the issue in the courts below, Gomez is limited in
this Court to seeking reiief via plain error review.
[6)[7}[8}[9] Rule 52(b) of the Tennessee Rules of
Criminal Procedure provides that “[a]n error which has
affected the substantial rights of an accused may be noticed
at any time, even though not raised in the motion for a new
trial or assigned as error on appeal, in the discretion of the
App. 41
appellate court where necessary to do substantial justice.”
(emphasis added); see also Tenn. R.App. P. 36(b) (“A final
judgment ... shall not be set aside unless, considering the
whole record, error involving a substantial right more
probably than not affected the judgment or would result in
prejudice to the judicial process.”) (emphasis added). Plain
error review extends only to a clear, conspicuous, or obvious
etrer which affects the substantial rights of the defendant.
*646United States v. Olano, 507 U.S. 725, 732, 113 S.Ct.
1770, 123 L.Ed.2d 508 (1993) (analyzing the substantially
similar Federal Rule of Criminal Procedure 52(b)). Whether
an error is “plain” or “obvious” is determined by reference to
the law existing as of the time of appellate consideration.
Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544,
137 L.Ed.2d 718 (1997). Moreover, relief is warranted only
if the plain error prejudiced the defendant by affecting the
outcome of the trial court proceedings. /d. at 732-37, 113
App. 42
S.Ct. 1770; State v. Faulkner, 154 S.W3d 48, 58
(Tenn.2005). Although very similar to harmless error
analysis, plain error review places on the defendant the
burden of persuasion, whereas the State bears the burden of
persuasion when an appellate court conducts a harmless error
analysis. Olano, 507 U.S. at 732-37, 113 S.Ct. 1770.
[10}{11] The substantive standards for plain error review
are difficult to satisfy. An appellate court will reverse for
plain error only if:
(a) the record ... clearly establish[es] what occurred in the
trial court;
(b) a clear and unequivocal rule of law [has] been
breached;
(c) a substantial right of the accused [has] been adversely
affected;
(d) the accused did not waive the issue for tactical
reasons; and
(e) 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)). All five factors must be established,
App. 43
and an appellate court need not consider all five factors if any
one factor indicates that relief is not warranted. Smith, 24
S.W.3d at 283.
[12] Consideration of factor (d) indicates that Gomez is
not entitled to relief. The record clearly establishes what
occurred in the trial court: Gomez withdrew his objection to
Guartos’ statement, and he did so for tactical reasons.[FN10]}
Here, Gomez did not simply fail to object. Instead Gomez
objected to testimony indicating that the group had rented the
vans for $2,500 from a person in Miami. Gomez withdrew
his objection when the prosecution agreed not to elicit such
testimony. The information about the price paid for the rental
van did not directly implicate Gomez. Nevertheless, this
information, considered in conjunction with the receipt police
found in Gomez's apartment for 2 $2,500 moncy transfer
from Gomez's roommate in Miami to an individual in Bogota,
Columbia, reveais the tactical nature of Gomez's objection
App. 44
and his willingness to withdraw it. Having failed to satisfy at
least one of the plain error review factors, Gomez is not
entitled to relief on this claim.
FN10. As the State points out, the United States Supreme
Court has drawn a distinction between “forfeiture” and
“waiver.”
Whereas forfeiture is the faiiure to make the timely
assertion of a night, waiver is the “intentional relinquishment
or abandonment of a known right.” Whether a particular
right is waivable ... [and] whether the defendant's choice must
be particularly informed or voluntary, all depend on the right
at stake.
Olano, 507 U.S. at 733, 113 S.Ct. 1770 (citations
omitted). Although it is debatable whether Gomez's action
constitutes waiver or merely forfeiture, we need not discuss
this distinction here. Assuming that the plain error standard
App. 45
applies, Gomez is nonetheless ineligible for relief for the
reasons herein explained.
D. Harmless Error Analysis or Structural Error--
Londono
As previously noted, Londono has consistently argued
that the admission of testimony *647 about Guartos’
statement violated his Sixth Amendment right to confront the |
witnesses against him. He has preserved the issue to which
Crawford's new rule relates and is entitled to plenary
appellate review of this issue. The State concedes, and we
agree, that admitting testimony summarizing Guartos'
“testimonial” statement violated the rule announced in
Crawford because Londono had no prior opportunity to cross-
examine Guartos. Having found that Londono's
constitutional right to confront Guartos was violated, the next
question is whether his conviction must be reversed because
of this error.
App. 46
[13] To answer this question, we must first determine
whether Crawford errors are structural errors that defy
harmless error analysis or are instead trial errors that are
subject to harmless error analysis. The historical
development of the harmless error doctrine and its general
application to constitutional errors has heen thoroughly
documented by this Court. See, e.g. Momon v. State, 18
S.W.3d 152 (Tenn. 1999); State v. Williams, 977 S.W.2d 101,
104 (Tenn.1998). Significant to this case is the established
principle that only a very limited class of “structural defects”
require automatic reversal. Momon, 18 S.W.3d at 165-66.
Such errors deprive defendants of basic protections and
compromise the integrity of the trial process itself. Id. at 165;
see also Johnson, 520 U.S. at 468-69, 117 S.Ct. 1544 (citing
examples of cases involving structural error, including
Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124
L.Ed.2d 182 (1993) (defective reasonable-doubt instruction);
App. 47
Waller v. Georgia, 467 U.S. 39, 104 §.Ct. 2210, 81 L.Ed.2d
31 (1984) (denial of public trial); Vasquez v. Hillery, 474
U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial
discrimination in selection of grand jury); McKaskle v.
Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)
(denial of self-representation at trial); Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963) (complete denial of the assistance of counsel); Tumey
v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)
(biased tral judge)).
[14)[15] The United States Supreme Court and this Court
have held that violations of the Confrontation Clause are
subject to harmless error review. See, e.g., Coy v. lowa, 487
U.S. 1012, 1021, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988)
(holding that denial of face-to-face confrontation is subject to
harmless error analysis); Delaware v. Van Arsdall, 475 U.S.
673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (“{ W]e hold
App. 48
that the constitutionally improper denial of a defendant's
opportunity to impeach a witness for bias, like other
Confrontation Clause errors, is subject to Chapman harmless-
error analysis.”’); State v. Sayles, 49 S.W.3d 275, 280-81
(Tenn.2001); State v. Howell, 868 S.W.2d 238, 253
(Tenn.1993). Crawford does not suggest otherwise. Those
justices--including Justice Scalia, the author of the Crawford
opin.on--who disagreed with the Court's pre-Crawford
conclusion in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887,
144 L.Ed.2d 117 (1999), that the admission of an
accomplice’s confession did not violate the Confrontation
Clause, nonetheless concurred in the judgment because they
believed that harmless error review applied to the perceived
violation. See Lilly, 527 U.S. at 143, 119 S.Ct. 1887 (Scalia,
J., concurring in part and concurring in the judgment)
(stating that admission of accomplice's statement against
defendant violated Confrontation Clause, but that case should
App. 49
be remanded for harmless-error review); id. at 148, 119
S.Ct. 1887 (Rehnquist, C.J, concurring in the judgment,
joined by O'Connor and Kennedy, JJ), see also id. at 143,
119 S.Ct. 1887 (Thomas, J. concurring in part and
concurring in the judgment) (*648 joining plurality in
remanding for harmless error review). Although Crawford
preserves a criminal defendant's constitutional night to
confront adverse witnesses, evidence admitted in violation of
Crawford is an error in the trial process and not a defect
affecting the framework within which the trial proceeds.
Johnson, 520 U.S. at 468, 117 S.Ct. 1544. Thus, like other
Confrontation Clause violations, we conclude that a Crawford
crror is subject to harmless error analysis and does not
constitute structural error requiring automatic reversal.
{16}{17; Furthermore, we conclude that the Crawford
error in this case is harmless beyond a reasonable doubt.
Guartos’ statement did not directly implicate Londono or
App. 50
Gomez. Immediately after each detective testified about the
statement, the trial court provided a cautionary instruction to
the jury, limiting the jury's consideration of the testimony
about the statement to the issue of whether the conspiracy
existed and forbidding its consideration as to whether a
particular defendant joined in the charged conspiracy. Jurors
are presumed to follow the instructions of the trial court.
State v. Robinson, 146 S.W.3d 469, 494 (Tenn.2004).
Moreov’r, the other properly-admitted evidence of guilt was
substantial. An eyewitness, Sloan, identified Londono from
a photographic array and again at trial, testifying that she was
“very sure” of the identification. Fingerprint evidence placed
Londono at the motel room where various other incriminating
items were found linking Londono to the crime. Londono's
girlfriend, Jimenez, with whom he had lived in Miami at the
time of the crime, testified extensively about Londono’s
involvement in the crime and about how they spent
App. 51
Londono's share of the money from the crime. Accordingly,
in light of the vague nature of the statement, the trial court's
limiting instruction, and the other substantial evidence of
guilt, we conclude that the error in admitting testimony about
Guartos’ statement was harmless beyond a reasonable doubt.
Ill. Sentencing Issues
Gomez and Londono have asserted in this Court that their
sentences were imposed in a manner that violated their Sixth
Amendment right to a trial by jury.[FN11] In particular, the
defendants complain that enhancement factors found by a
judge by a preponderance of the evidence were used to
impose maximum sentences for each of their convictions.
Relying upon the United States Supreme Court's decision in
Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004), the defendants assert that they were
constitutionally entitled to receive the presumptive minimum
App. 52
sentence as defined in Tennessee Code Annotated section 40-
35-210(c) (2003).
FN11. Neither defendant contends that the imposition of
consecutive sentences violated their right to a jury trial.
A. Plenary Versus Plain Error Review
[18] The defendants did not raise this constitutional
challenge at their April 4, 2002, sentencing hearing or in their
motions for new trial, nor did they raise it ir the Court of
Criminal Appeals. The defendants first raised this
constitutional challenge in this Court.[FN12] The State
initially argues that, by failing to raise this issue in the courts
below, the defendants have forfeited plenary appellate review
and are now limited to + <b .g relief via *649 plain error
review. The defendants counter that Blaxely, decided on June
24, 2004, announced a new rule and that they mounted their
constitutional challenge as soon as possible after Blakely was
decided. [FN13] The defendants maintain that penalizing
App. 53
them for failing to raise the constitutional issue sooner would
be inappropriate in light of this Court's decision in Graham v.
State, 90 S.W.3d 687 (Tenn.2002). In Graham, we rejected
a constitutional challenge similar to the one now under
consideration, holding that the Sixth Amendment does not
preclude trial judges from finding enhancement factors by a
preponderance of the evidence and from considering such
factors when selecting the appropriate sentence within a
statutory renge. /d. at 692. The defendants contend that
because Graham had rejected such a constitutional challenge,
their failure to raise earlier and preserve properly the
constitutional challenge they now bring is excusable.
However, we find each of the defendants’ arguments
unpersuasive and conclude that plain error review applies to
their Sixth Amendment challenge.
App. 54
FN12. Gomez raised the issue by filing a supplement to his
application for permission to appeal. Londono has included
a discussion of this issue in his initial brief.
FN13. This Court has endeavored to resolve expeditiously the
important issues presented in this appeal. As stated above,
Blakely was issued on June 24, 2004. On August 2, 2004, the
United States Supreme Court granted certiorari in United
States v. Booker, 04-104 and United States v. Fanfan, 04-105.
On September 2, 2004, Gomez filed a motion to supplement
authorities, relying upon Blakely. On October 4, 2004, the
United States Supreme Court heard argument in Booker and
Fanfan. Also on October 4, 2004, this Court granted the
defendants’ applications for permission to appeal and
expedited these Nashville cases for hearing in Knoxville
during the January 2005 court session. This Corrt heard oral
argument on January 4, 2005, and the United States Supreme
Court issued its decision_in Booker and Fanfan on January
See Or ee AT Ail te mt le
App. 55
12, 2005. Gomez, Londono, and the State were then given
until February 14, 2005 to file supplemental briefs addressing
Booker, and until February 24, 2005 to file replies to these
supplemental briefs.
First, we are of the opinion that Blakely did not announce
anew rule. Admittedly, the United States Supreme Court has
not squarely addressed this issue. However, the Court has
suggested that Blakely was applying a previously recognized
principle of law, rather than announcing a new rule. For
example, in United States v. Booker, --- U.S. ----, 125 S.Ct.
738, 160 L.Ed.2¢ 621 (2005), the Court at the outset refers to
“our Apprendi line of cases,” making it clear that Apprendi,
not Blakely, established the operative rule of law. Booker, 125
S.Ct. at 747. Furthermore, the Court in Booker expressly
confirmed that the result which the majority reached in
Blakely had been dictated by precedent, stating, “(flor reasons
explained in Jones v. {United States, 526 V).S. 227, 119 S.Ct.
App. 56
1215, 143 L.Ed.2d 311 (1999)], Apprendi, and Ring v.
[Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556
(2002)], the requirements of the Sixth Amendment were
clear. The application of Washington's sentencing scheme
violated the defendant's right to have the jury find the
existence of ‘any particular fact’ that the law makes essential
to his punishmest.” Booker, 125 S.Ct. at 749 (quoting
Blakely, 124 S.Ct. at 2536). The Court in Booker concluded:
Accordingly, we reaffirm our holding in Apprendi: Any fact
(other than a prior coriviction) which is necessary to support
a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a
reasonable doubt.
Booker, 125 S.Ct. at 756. Thus, the language of Booker
demonstrates that the United States Supreme Court does not
regard Blakely as having announced a new *650 rule of
App. 57
law.[FN14] See also Apprendi, 530 U.S. at 490, 120 S.Ct.
2348 (describing its holding as ‘foreshadowed by” Jones v.
United States, 526 U.S. 227, 119S.Ct. 1215, 143 L.Ed.2d311
(1999)); Blakely, 124 S.Ct. at 2536 (applying ‘the rule [we]
expressed in Apprendi “).
FN14. The dissent asserts that Blakely must have announced
a new rule because “Booker, which was merely an application
of Blakely, stated a new rule....”” In our view, the new rule of
Booker was the Court's holding that the Federal Sentencing
Guidelines violated the Sixth Amendment, the Court's
excision of the mandatory portions of the Guidelines, and the
Court's application of the excised Guidelines. See Humphress
v. United States, 398 F.3d 855, 861 (6th Cir.2005). The Sixth
Amendment principle necessitating the Court's holding was
not new and was the same principle discussed in Jones v.
United States, 526 U.S. 227, 119S.Ct. 1215, 143 L.Ed.2d311
App. 58
(1999) and clearly “expressed in Apprendi.“ Blakely. 124
S.Ct. at 2536.
Although some other courts and wrists have concluded
that Blakely announced a new rule, the United States Supreme
Court is the fina] arbiter of this issue. Cf Beard v. Banks,
542 U.S. 406, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004)
(reversing the federal circuit court of appeals and holding
that Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100
L.Ed.2d 384 (1988) announced a new rule). In our view,
United States Supreme Court decisions provide authoritative
insight on how this question ultimately will be answered.
Having carefully considered these edie we conclude
that Blakely did not announce a new rule.
[19] Nonetheless, even had Blakely announced a new rule
of law, our conclusion that the defendants are not enti‘:cd to
plenary appellate review of this issve would have deen the
same. As previously explained, Griffith mandates plenary
App. 59
review in direct review, “pipeline” cases only if the issue to
which the new rule reiates has been preserved for review.
479 U.S. at 328, 107 S.Ct. 708. Neither Gomez nor Londono
preserved a Sixth Amendment challenge to the imposition of
their sentences. This constitutional challenge was raised for
the first time in this Court after Blakely was decided. Thus,
the defendants are limited to seeking relief on their Sixth
Amendment claim via plain error review. See Booker, 125
S.Ct. at 769 (“/Wje expect reviewing courts to apply
ordinary prudential doctrines, Cetermining, for example,
whether the issue was raised below and whether it fails the
plain-error’ test.”’); Cotton, 535 U.S. at 627, 122 $.Ct. 1781
(applying plain error review to an alleged Apprendi error that
had not been raised in the district court).
Although the defendants are correct in pointing out that
we rejected a similar constitutional challenge in Graham, this
fact does not excuse the defendants’ failure to raise their Sixth
App. 60
Amendment claim. To the contrary, Graham illustrates that
Tennessee defendants could have asserted Blakely-type
challenges long before the United States Supreme Court
decided Blakely. To the extent that the defendants are
suggesting that Graham deterred them from raising their
Sixth Amendment claim, they are factually mistaken because
Graham was released seven months after the defendants were
sentenced and six months after the trial court denied the
defendants’ motions requesting a new trial.
{20} Furthermore, had Graham been released before the
defendants were sentenced, our conclusion would be the
same. At the risk of stating the obvious, this Court is not the
final arbiter of the United States Constitution. See, e.g., Seals
v. State, 23 S.W.3d 272, 277 (Tenn.2000) (noting that this
Court is the final arbiter of *651 the Tennessee Constitution,
not the United States Constitution). Like all Tennessee
courts, this Court is bound by the United States Supreme
App. 61
Court's interpretation of the United States
Constitution.{FN15] Defendants dissatisfied with this Court's
interpretation of the United States Constitution can and often
do seek review in the United States Supreme Court. See, e.g.,
Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149
L.Ed.2d 697 (2001); Payne v. Tennessee, 501 U.S. 808, 111
S.Ct. 2597, 115 L.Ed.2d 720 (1991). Because such review is
available, crimina! defeidants routinely raise and preserve for
federal review issues this Court has previously rejected. See,
e.g., State v. Dellinger, 79 S.W.3d 458, 472 (Tenn.2002)
(“We have repeatedly rejected this argument in prior cases
and decline to revisit the issue here.”); Harris v. State, 947
S.W.2d 156, 176 (Tenn.Cnm.App.|1996) ( “The appellant
raises numerous constitutional challenges to Tennessee's
death penalty statute ... in order to preserve the issues for
later review by the federal appellate courts. "’)
App. 62
FN15S. See, e.g, State v. Carruthers, 35 $.W.3d 516, 561
(Tenn.2000); Strouth v. State, 999 S.W.2d 759, 765 n. 9
‘Tenn.1999); State v. McKay, 680 S.W.2d 447, 450
(Tenn. 1984).
{21][22] Moreover, nothing in our decision in Graham
precluded the defendants from raisin§/akely-type challenges
in future cases. Admittedly, Graham's existence meant that
such claims would likely have been unsuccessful, but the
defendants could have raised and preserved such issues for
review by this Court and by the United States Supreme Court.
Indeed, a defendant is never precluded from raising an issue
simply because a prior decision has rejected it. As our
previous discussion of Griffith makes clear, courts often
reconsider arguments that have been previously rejected. See
also Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 71
L.Ed.2d 783 (1982) (‘Even a state court that has previously
rejected a constitutional argument may decide, upon
App. 63
reflection, that the contention is valid.”). Ring v. Arizona,
536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) well
illustrates this point. In Ring, the Court overruled Walton vy.
Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d SI}
(1990), “to the extent that it allows a sentencing judge, sitting
without a jury, to find an aggravating circumstance necessary
for imposition of the death penalty.” Ring, 536 U.S. at 609,
122 S.Ct. 2428. Thedefendantin Ring preserved his
argument under Apprendi even though that very argument
appeared to be foreclosed by Walton. Adverse precedent
neither bars a defendant from raising and preserving an issue
for review nor excuses a defendant's failure to do so. Thus,
because the defendants failed to raise and to preserve for
review their Sixth Amendment challenge, the defendants are
limited to seeking relief via plain error review.[FN16]
FN16. Limiting the defendants to seeking relief via plain
error review, rather than affording them plenary appellate
App. 64
review, is not at all dependent upon our view that Blakely did
not announce a new rule. Defendants ordinarily are not
entitled to plenary appellate review unless claims have been
timely raised and properly preserved. Likewise, a defendant
is not entitled to plenary appellate review of a claim based
upon a new rule unless the defendant has timely raised and
properly preserved the issue to which the new rule relates.
The dissent's quarrel with our application of this rule to the
defendants’ Blakely claim is curious, given the dissenting
justices’ concurrence with our application of this rule to
Gomez's Crawford claim. On the one hand, the dissenting
justices conclude that plenary appellate review applies to the
defendants’ unpreserved Sixth Amendment claims because
Blakely announced a new rule; on the other hand, the
dissenting justices conclude that plain error review applies to
Gomez's unpreserved Confrontation Clause claim, which is
based upon the new rule announced in Crawford. The
App. 65
dissenting justices thus express fundamentally inconsistent
conclusions as to the review which courts should apply to
unpreserved claims which are based upon new rules.
Furthermore, as a practical matter, defendants raising
Blakely claims are not entitled to relief, regardless of whether
plenary or plain error review is applied. As hereinafter
explained, the Tennessee Criminal Sentencing Reform Act
does not authorize a sentencing procedure which violates the
Sixth Amendment right to jury trial. We recognize that some
defendants will choose to raise and to pursue Sixth
Amendment Blakely-type claims in the hope that the United
States Supreme Court will ultimately disagree with our
determination of this issue, and nothing in this decision
precludes them from doing so.
Finally, we are constrained to point out that, in addition to
being irrelevant in this direct review appeal, the dissent's
suggestion that a petitioner will be able to rely upon Blakely
App. 66
as a ground for reopening a post-conviction petition under
Tennessee Code Annotated section 40-30- 117(a)(1), is
erroneous. Reopening is appropriate under section -
117(a)(1), “[i}f the claim is based upon a final ruling of an
appellate court establishing a constitutional right that was not
recognized as existing at the time of trial, if retrospective
application of that right is required.” As to whether
“retrospective application ... is required,” Tennessee Code
Annotated section 40-30-122 provides that:
[a] new rule of constitutional criminal law shall not be
applied retroactively in a post-conviction proceeding
unless the new rule places primary, private individual
conduct beyond the power of the criminal law-making
authority to proscribe or requires the observance of
fairness safeguards that are implicit in the concept of
ordered liberty.
This standard would not permit, much less require,
Blakely's retroactive application in a_ post-conviction
proceeding. Indeed, applying a standard virtually identical to
section -122, the United States Supreme Court has already
App. 67
concluded that the new rule announced in Ring requiring jury
findings of aggravating circumstances in capital cases does
not qualify for retroactive application to sentences that were
final before Ring was decided. See Schriro v. Summerlin, 54;
U.S. 348, 124 S.Ct. 2519, 159 L.Bd2d 442 (2004)
(concluding that Ring announced a new rule by overruling
Walton, but, applying a standard virtually identical to section
-122, refusing to apply Ring retroactively to cases already
final). Given the Court's holdingin Schriro, there is no
reason to believe that Blakely would be afforded retroactive
application to final convictions should the United States
Supreme Court ultimately conclude that Blakely announced
a new rule. See United States v. Price, 400 F.3d 844, 849
(10th Cir.2005) (concluding that Blakelys20 announced a
new rule but that the new rule does not apply retroactively);
cj. Humphress, 398 F.3d at 862-63 (concluding that the new
rule announced in Booker does not apply retroactively to
App. 68
convictions already final); Varela v. United States, 400 F 3d
864 (1 1th Cir.2005) (same). Thus, seeking reopening under
section -117 based on Blakely would be a futile endeavor.
Conspicuously absent from the dissenting opinion is any
authority supporting the dissent's assertion that this Court
may retroactively apply a federal constitutional rule which the
United States Supreme Court has refused to apply
retroactively.
*652 B. Plain Error Review—The Record on Appeal
As previously explained, this Court will reverse for plain
error only if
(a) the record ... clearly establish{es] what occurred in
the trial court;
(b) a clear and unequivocal rule of law [has] been
breached;
(c) a substantial nght of the accused [has] been
adversely affected;
(d) the accused did not waive the issue for tactical
reasons; and
(e) consideration of the error is “necessary to do
substantial justice.”
App. 69
Smith, 24 S.W.3d at 282 (quoting Adkisson, 899 S.W.2d at
641-42). An appellate court need not consider all five factors
if consideration of any one factor indicates that relief is not
warranted. Smith, 24 S.W.3d at 283.
In this case, factor (a) is satisfied. The record clearly
establishes what occurred in the trial court. Gomez and
Londono were convicted of: (1) conspiracy to commit
aggravated robbery, a Class C felony which carries a three to
six year sentence, (2) *653 facilitation of felony murder, a
Class A felony, which carnes a fifteen to twenty-five year
sentence; (3) facilitation of especially aggravated robbery, a
Class B felony, which carries an eight to twelve year
sentence; and (4) facilitation of aggravated robbery, a Class
C felony, which carries a three to six year sentence. The trial
court found and“applied two enhancement factors as to all
four convictions: “[t}he defendant has a previous history of
criminal convictions,or criminal behavior in addition to those
App. 70
necessary to establish the appropriate range;” and “{t]he
defendant was a leader in the commission of the offense
involving two (2) or more criminal actors.” Tenn.Code Ann.
§ 40-35-1 14(2), (3) (2003). As to the defendants’ conviction
for facilitation of felony murder, the trial court applied an
additional enhancement factor--"[t]he defendant possessed or
employed a firearm, explosive device or other deadly weapon
during the commission of the offense.” /d. at (10). As to
each defendant and all convictions, the trial judge imposed
the maximum sentence within the range: (1) six years for
conspiracy to commit aggravated robbery; (2) twenty-five
years for facilitation of felony murder, (3) twelve years for
facilitation of especially aggravated robbery; and (4) six
years for facilitation of aggravated robbery. The trial court
stated that, in selecting the maximum sentence as the
appropriate sentence, it had afforded “great weight” to the
first factor, the defendants’ previous history of criminal
App. 71
convictions. At the time of the sentencing hearing, Gomez
had been convicted of “Theft from Interstate Shipment, April
14, 1999, United States District Court, Northern District of
Texas, Fort Worth Division,” and Londono had been
convicted of “Manslaughter, April 12, 2000, Houston, Texas
Criminal Court.”
C. Plain Error Review—Violation of a Clear and
Unequivocal Rule of Law
Having determ:ned that the record clearly establishes what
occurred in the trial court, we must next determine whether
the defendants’ sentences were imposed in violation of a
“clear and unequivocal rule of law.” As previously explained,
plain error review extends only to clear, conspicuous, or
obvious error. Olano, 507 US. at 732, 113 S.Ct.
1770.[FN17] Whether an error is *654 “plain” or “obvious”
is determined by reference to the law existing as of the time
of appellate consideration. Johnson, 520 U.S. at 468, 117
S.Ct. 1544.
App. 72
FN17. The dissent faults us for creating what the dissent
terms “a new course” by which “all decisions are now
retroactive, whether they constitute a new constitutional rule
or not. The only question is whether or not the defendant
properly preserved the issue, entitling him to plenary review,
or whether the defendant failed to preserve the issue, entitling
him only to plain error review.” This course is not new. As
explained in section II. B of this opinion, as to direct review
cases, the only relevant question since Griffith is whether the
defendant is entitled to plenary appellate review or plain error
review. New rules apply to cases pending on direct review
when the new rule is announced. However, like other
unpreserved claims of error, when a defendant fails to raise
and to preserve the claim to which the new rule relates, the
defendant is limited to seeking relief via plain error review.
Johnson v. United States, supra, is an excellent illustration of
this principle. Johnson involved a federal perjury prosecution
App. 73
in which the element of materiality had been decided by the
judge rather than submitted to the jury. The defendant failed
to object to this procedure at trial because “near-uniform
precedent both from this Court [the United States Supreme
Court} and the Court of Appeals” had held that the element of
materiality could be decided by the judge. Johnson, 520 U.S.
at 468, 117 S.Ct. 1544. After Johnson had been convicted,
but before her appeal became final, the United States
Supreme Court decided United States v. Gaudin, 515 U.S.
506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), which held that
materiality of a statement must be submitted to the jury rather
than decided by the trial judge. Johnson argued on appeal that
the failure to submit materiality to the jury rendered her
conviction invalid under Gaudin. The Eleventh Circuit Court
of Appeals reviewed Johnson's unpreserved claim for plain
error and denied relief. The United States Supreme Court
affirmed. In doing so, the Court first acknowledged that
App. 74
Gaudinn had announced a new rule and that under Griffith
the new rule applied to Johnson's direct review case. Johnson,
520 U.S. at 467, 117 S.Ct. 1544. Nevertheless, the Court
reviewed Johnson's unpreserved claim for plain error and
denied relief. In applying plain error review, the Court
explained that “where the law at the time of trial was settled
and clearly contrary to the law at the time of appeal--it is
enough that an error be ‘plain’ at the time of appellate
consideration.” Johnson, 520 U.S. at 468, 117 S.Ct. 1544.
Thus, Johnson supports our conclusion that the relevant
question is whether a defendant has preserved a claim of
error, regardiess of whether the claim is based upon a new
rule or upon authority existing at the time of trial. Sumply put,
plain error review applies to all unpreserved c!aimis of error,
regardless of whether such claims are based upon new rules.
That the dissent fails to grasp these aspects of plain error
review is troubling, particularly in light of the fact that the
App. 75
dissenting justices concurred in section II. B of this opinion,
which includes a detailed discussion of plain errer veview and
the analysis which it entails.
Although this Court has not previously addressed the
constitutional claim raised by the defendants, in many
decisions addressing this issue, the Court of Criminal Appeals
has concluded that Tennessee's sentencing procedures violate
the Sixth Amendment right to jury trial as explained in
Blakely. \n this appeal the State agrees with the defendants
that the presumptive sentence established by Tennessee Code
Annotated section 40-35-210(c) (2003) is .1e maximum
sentence which a judge can constitutionally impose because,
in the State’s view, the presumptive sentence is the only
sentence authorized by the jury verdict. Moreover, because
the trial judge in this case found enhancement factors (other
than the fact of the defendants’ prior convictions) and selected
a sentence other than the presumptive sentence, the State
App. 76
concedes that the defendants’ sentences were imposed in
violation of the Sixth Amendment right to a jury tnal.
According to the State, the validity and correctness of its
concession is supported by the United States Supreme Court's
decision in Booker.
[23}[24][25] Before accepting a concession, this Court
independently analyzes the underlying legal issue to
determine whether the concession reflects a correct
interpretation of the law. See, e.g., State v. Ely, 48 S.W.3d
710, 716 n. 3 (Tenn.2001); State v. Ducker, 27 S.W.3d 889,
893 n. | (Tenn.2000); State v. Shepherd, 902 S.W.2d 895,
906 (Tenn.1995). Where, as here, a concession casts
constitutional doubt upon a duly enacted statute, such an
independent analysis is crucial. In conducting this analysis,
we are mindful that statutes are presumed to be constitutional.
See Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn.2003) ;
State v. Robinson. 29 S.W.3d 476, 479 (Tenn.2000); Riggs
App. 77
v. Burson, 941 S.W.2d 44, 51 (Tenn.1997). Indeed, we must
“indulge every presumption and resolve every doubt in favor
of the statute's constitutionality.” State v. Taylor, 70 S.W.3d
717, 721 (Tenn.2002); see also Riggs, 941 S.W.2d at 51; In
re Burson, 909 S.W.2d 768, 775 (Tenn.1995)
Thus, we must conduct an independent analysis to
determine whether the sentencing procedure violated a “clear
and unequivocal rule of law.” We begin this analysis with
Apprendi, in which the defendant was convicted of second-
degree unlawful possession of a firearm, an offense carrying
amaximum penalty of ten years imprisonment. *655530 U.S.
at 469-70, 120 S.Ct. 2348. On the prosecutor's motion, the
sentencing judge found by a preponderance of the evidence
that the crime had been committed “ ‘with a purpose to
uitimidate ... because of race, color, gender, handicap,
religion, sexual orientation or ethnicity.“ Jd. at 469, 120
S.Ct. 2348 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West
App. 78
Supp.1999-2000)). This judicial finding had the effect of
doubling from ten years to twenty years the maximum
sentence to which Apprendi was exposed. /d. at 469, 120
S.Ct. 2348. The judge sentenced Apprendi to twelve years in
prison, two years more than the maximum that would have
applied but for the judicial finding of racial motivation. /d. at
471-72, 120 S.Ct. 2348. The Court held that imposition of
this departure sentence violated Apprendi's Sixth Amendment
right to a jury trial, stating: “[{o)}ther than the fact of 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.” /d. at 490,
120 S.Ct. 2348.
In Blakely, the Court appiied and expounded upon
Apprendi. At issue in Blakely was the State of Washington's
“determinate sentencing scheme.” [FN18] Blakely had been
charged with first-degree kidnapping, but he pleaded guilty to
App. 79
second-degree kidnapping with a firearm, a class B felony
punishable by a term of not more than ten years. Other
statutory provisions mandated a “standard” sentence of forty-
nine to fifty-three months, un’ ess the judge found aggravating
facts justifying an exceptional sentence. Blakely, 124 S.Ct. at
2537. Although the prosecutor recommended a sentence in
the standard range, the judge found that Blakely had acted
with “deliberate cruelty” and sentenced him to ninety months,
a sentence approximately three years longer than the fifty-
three month maximum sentence available in the standard
range. Blakely appealed, arguing that this sentencing
procedure deprived him of his Sixth Amendment right to have
a jury determine beyond a reasonable doubt all facts legally
essential to his sentence. /d. at 2534- 35.
FN18. Booker, 125 S.Ct. at 749. “Determinate sentencing”
has been widely understood to refer to a sentencing scheme
that lacks a discretionary release mechanism, such as parole.
App. 80
“Determinancy” describes the extent to which a judge's
sentence determines the length of time a defendant will
actually serve in prison. “Indeterminate sentencing” has been
widely understood to refer to a system in which a releasing
authority, such as a parole board, has discretion to release a
defendant prior to expiration of the full sentence imposed.
However, the Courtin Booker and Blakely used the term
“determinate sentencing” to refer to sentencing systems in
which a judge's discretion is constrained by an internal
sentencing threshold. The Court used the term “indeterminate
sentencing” to refer to systems with no such internal
constraints, where judges are free to sentence anywhere
within the statutory limits. Jon Wool, Beyond Blakely.
Implications of the Booker Decision for State Sentencing
Systems, at 3, Policy and Practice Review (Vera Inst. of
Justice February 2005), at http://www.vera.org/publications/
publications 5.
App. 81
In concluding that Washington's sentencing procedure
violated Blakely's Sixth Amendment right to a jury trial, the
Court emphasized that the “deliberate cruelty” finding had
been based upon facts that were neither admitted by Blakely
nor found by a jury beyond a reasonable doubt. The Court
pointed out that the guilty plea authorized the Washington
trial judge to impose a sentence within the standard range of
forty-nine to fifty-three months. Absent the finding of
“deliberate cruelty,” the trial judge could not have imposed
the exceptional ninety month sentence. /d. at 2537. The
Court rejected the State's argument that the jury verdict *656
was sufficient to authorize a sentence anywhere within the
ten-year statutory range for Class B felonies, explaining:
Our precedents make clear, however, 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
admitied 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
App. 82
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.
Id. (citations ornitted). Accompanying this explanation of
“statutory maximum” was a discussion of the nature and
limits of the Sixth Amendment:
First, the Sixth Amendment by its terms is not a
limitation on judicial power, but a reservation of jury
power. It limits judicial power only to the extent that
the claimed judicial power infringes on the province
of the jury. Indeterminate sentencing does not do so.
It increases judicial discretion, to be sure, but not at
the expense of the jury's traditional function of finding
the facts essential to lawful imposition of the penalty.
Of course indeterminate schemes involve judicial fact
finding, in that a judge (like a parole board) may
implicitly rule on those facts he deems important to
the exercise of his sentencing discretion. But the facts
do not pertain to whether the defendant has a legal
right to a lesser sentence--and that makes all the
difference insofar as judicial impingement upon the
traditionai role of the jury is concerned. In a system
that says the judge may punish burglary with 10 to 40
years, every burglar knows he is risking 40 years in
jail. In a system that punishes burglary with a 10-year
sentence, with ...1other 30 added for use of a gun, the
burglar who enters a home unarmed is entitled to no
more than a 10-year sentence--and by reason of the
App. 83
Sixth Amendment the facts bearing upon that
entitlement must be found by a jury.
Id. at 2540 (emphasis in original). Blakely thus drew a
constitutionally significant distinction between judicial
factfinding in a “determinate” sentencing scheme and judicial
factfinding in an “indeterminate” sentencing scheme. See
footnote 18, supra. The Court's holding inBooker focuses to
an even greater degree upon this distinction.
In Booker, the Court addressed the question specifically
left unanswered in Blakely--whether the Federal Sentencing
Guidelines (“Guidelines’’) violate the Sixth Amendment right
to jury trial. Booker was convicted of possession with intent
to distribute at least fifty grams of cocaine base, an offense
statutorily punishable by ten years to life in prison. Booker,
125 S.Ct. at 746. Based upon his criminal history and the
quantity of drugs found by the jury, the Guidelines set
Booker’s maximum sentence at 262 months (twenty-one years
and ten months). /d. At a sentencing hearing, the district
App. 84
judge concluded by a preponderance of the evidence that
Booker had possessed an additional 566 grams of cocaine
base and that Booker was guilty of obstructing justice. Under
the Guidelines, these additional findings mandated a sentence
between 360 months to life imprisonment, and the trial judge
imposed a sentence of 360 months (thirty years). /d. The
Seventh Circuit reversed, holding that application of the
Guidelines to impose a sentence in excess of the maximum
*657 sentence authorized by the jury verdict alone conflicted
with Apprendi.
In United States v. Fanfan, the case consolidated with
Booker, the defendant was convicted of conspiracy to
distribute and to possess with intent to distribute at least 500
grams of cocaine, offenses statutorily punishable by a
sentence of five to forty years. Booker, 125 S.Ct. at 747.
Based upon the jury's verdict, the Guidelines set Fanfan's
maximum sentence at seventy-eight months. The district
App. 85
court conducted Fanfan's sentencing hearing shortly after the
Court rendered its decision in Blakely. The district court
found additional facts by a preponderance of the evidence that
would have mandated a Guidelines sentence between 188 and
235 months. However, in light of Blakely the district court
declined to impose the mandatory increase and instead
imposed the seventy-eight month maximum _ sentence
authorized by the jury's verdict. /d. at 747.
[26] The United States Supreme Court agreed with the
lower courts’ conclusions that application of the Guidelines to
impose upon Booker and Fanfan a sentence in excess of that
authorized by the jury's verdict violated the Sixth Amendment
right to a jury trial. In so holding, the Court observed that
“there is no distinction of constitutional significance between
the Federal Sentencing Guidelines and the Washington
procedures” at issue in Blakely. Booker, 125 S.Ct. at 749.
This conclusion, the Court explained, “rests on the premise,
App. 86
common to both systems, that the relevant sentencing rules
are mandatory and impose binding requirements on all
sentencing judges.” Id. (emphasis added). Further
explaining the mandatory versus non-mandatory distinction,
the Court in Booker observed:
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 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 (emphasis added). Thus, Booker instructs us that
the Sixth Amendment is not implicated by a sentencing
procedure which uses non-binding, advisory enhancement
App. 87
factors to inform and to guide the judge's selection of an
appropriate sentence in the statutory range authorized by the
jury's verdict. The remedial majority opinion, authored by
Justice Breyer, confirms that allowing a judge to find and to
consider enhancement factors in a non-mandatory,
discretionary sentencing system does not violate the Sixth
Amendment. Indeed, the remedy applied inBooker requires
district judges to do so in all future cases. ‘d. at 764 (excising
the statute making the Guidelines binding on sentencing
courts and the statute requiring de novo review of sentences
on appeal, and stating that “[wJith these two sections excised
(and statutory cross-references to the two sections
consequently invalidated), the remainder of the Act satisfies
the Court's constitutional requirements.’’). *658 Justice
Breyer explained that the statutory provision which made the
Guidelines mandatory and binding on district court judges “‘is
a necessary condition of the constitutional violation. That is
App. 88
to say without this provision ... the statute falls outside the
scope of Apprendi's requirement.” /d. at 764. Thus, in
Booker all nine justices agreed that the Sixth Amendment is
not implicated by a sentencing statute which permits judge
fact-finding, but which does not mandate imposition of an
increased sentence upon the judge's finding of a fact. /d. at
749-50, 764.
Admittedly, Blakely itself includes language which can be
broadly construed to require the result the defendants seek.
We are unwilling to adopt that broad readingof Blakely.
Blakely must be read in light of Booker. Not only has Booker
provided further insight as to the constitutionally significant
differences between “determinate” and “mandatory”
sentencing schemes versus “indeterminate” and “non-
mandatory” sentencing schemes, this Court has a duty to
resolve doubts in favor of the constitutionality of statutes. In
our view, Booker confirms that Tennessee's sentencing
App. 89
structure differs markedly and in constitutionally significant
ways from the Guidelines and the New Jersey and
Washington statutes at issue in Apprendi and Blakely.
The Tennessee Criminal Sentencing Reform Act of 1989
(“Reform Act’) (1) divides felonies into five classifications
according to the seriousness of the offenses; (2) separates
offenders into five classifications according to the number of
prior convictions; (3) assigns a span or range of years for
each class of crime committed by each class of offenders; and
(4) employs enhancement and mitigating factors to assess the
definite sentence within each range. Tenn.Code Ann. §§ 40-
35-105-114 (2003); State v. Jones, 883 S.W.2d 597, 600
(Tenn.1994). Under the Reform Act, trial courts must
consider the following in assessing a sentence:
(1) The evidence, if any, received at the trial and the
sentencing hearing;
(2) The presentence report;
(3) The principles of sentencing [FN19] and
arguments as to sentencing alternatives;
App. 90
FN19. As to sentencing principles, the statute provides:
(1) Sentences involving confinement should be based
on the following considerations:
(A) Confinement is necessary to protect
society by restraining a defendant who has a
long history of criminal conduct;
(B) Confinement is necessary to avoid
depreciating the seriousness of the offense or
confinement is particularly suited to provide
an effective deterrence to others likely to
commit similar offenses; or
(C) Measures less restrictive than confinement
have frequently or recently been applied
unsuccessfully to the defendant;
(2) The sentence imposed should be no greater than
that deserved for the offense committed;
(3) Inequalities in sentences that are unrelated to a
purpose of this chapter should be avoided;
(4) The sentence imposed should be the least severe
measure necessary to achieve the purposes for which
the sentence is imposed;
(5) The potential or lack of potential for the
rehabilitation or treatment of the defendant should be
considered in determining the sentence alternative or
length of a term to be imposed....
(6) Trial judges are encouraged to use alternatives to
incarceration that include requirements of reparation,
victim compensation and/or community service.
Tenn.Code Ann. § 40-35-103 (2003). Finally, the Act directs
that an appropriate sentence is one which is “justly deserved
App. 91
in relation to the seriousness of the offense,” is “fair and
consistent [with other similar cases]},” and “prevent[s] crime
and promote(s] respect for the law.” Tenn.Code Ann. § 40-
35-102 (2003); State v. Ashby, 823 S.W.2d 166, 168
(Tenn,1991).
*659 (4) The nature and characteristics of the criminal
conduct involved;
(5) Evidence and information offered by the parties on
the enhancement and mitigating factors ...; and
(6) Any statement the defendant wishes to make in his
own behalf about sentencing.
Tenn.Code Ann. § 40-35-210(b) (2003); Ashby, 823 S.W.2d
at 168. The Reform Act classifies offenses according to their
seriousness and offenders according to their prior convictions
and thereby predetermines the nature and extent of
punishment that should be imposed for similar offenses
committed by similar offenders. Jones, 883 S.W.2d at 600.
The Reform Act affords judges discretion to select an
appropriate sentence within a predetermined statutory range,
App. 92
but judges in Tennessee have no authority to impose a
sentence outside the statutory range. In exercising their
discretion to select an appropriate sentence within the range,
the Reform Act, much like the remedy adopted in Booker,
requires that judges find and consider statutory enhancement
factors and mitigating factors. Judges may consider all
enhancement factors that are “appropriate for the offense” and
“not themselves essential elements of the offense.”
Tenn.Code Ann. § 40-35-114 (2003). Significantly, no
provision in the Reform Act mandates an increase in a
defendant's sentence upon the finding of an enhancement
factor.
Unlike the statutes at issue in Blakely and Booker, a
judicial finding of an enhancement factor in Tennessee does
not affect the range of punishment to which a defendant is
exposed. Tennessee Code Annotated section 40-35- 210(c)
through (e) provides:
App. 93
(c) The presumptive sentence for a Class B, C, D and
E felony shall be the minimum sentence in the range
if there are no enhancement or mitigating factors. The
presumptive sentence for a Class A felony shall be the
midpoint of the range if there are no enhancement or
mitigating factors.
(d) Should there be enhancement but no mitigating
factors for a Class B, C, D or E felony, then the court
may set the sentence above the minimum in that range
but still within the range. Should there be
enhancement but ne mitigating factors for a Class A
felony, then the court shall set the sentence at or
above the midpoint of the range. Should there be
mitigating but no enhancement factors for a Class A
felony, then the court shal] set the sentence at or
below the midpoint of the range.
(e) Should there be enhancement and mitigating
factors for a Class B, C, D or E felony, the court must
start at the minimum sentence in the range, enhance
the sentence within the range as appropriate for the
enhancement factors, then reduce the sentence within
the range as appropriate for the mitigating factors.
Should there be enhancement and mitigating factors
for a Class A felony, the court must start at the
midpoint of the range, enhance the sentence within the
range as appropriate for the enhancement factors, and
then reduce the sentence within the range as
appropriate for the mitigating factors.
Thus, even after an enhancement factor is found, this
statute affords to the judge discretion to choose an appropriate
sentence anywhere within the statutory range, including the
7
App. 94
presumptive minimum sentence within the range. For Class
B, C, D or E felonies, section -210(d) provides specifically
that, if there are enhancement but no mitigating factors, the
trial judge “may set the sentence above the minimum in that
range but still within the range.” Tenn.Code Ann. § 40-35-
210(d) (2003) *660 (emphasis added). For Class A felonies,
section -210(d) provides that if there are enhancement but no
mitigating factors, the trial judge “shall set the sentence at or
above the midpoint of the range.” /d. (emphasis added).
Although the statute employs mandatory language (““must’’),
this language is qualified by the phrase “at or above the
midpoint of the range” and by section -210(c), which sets the
presumptive minimum for Class A felonies at the midpoint of
the range, and which does not mandate enhancement above
the midpoint.
Section -210(e), similarly prescribes use of an advisory,
discretionary procedure when a judge finds both enhancement
App. 95
“must start at the minimum sentence in the range, enhance the
sentence within the range as appropriate for the enhancement
factors, then reduce the sentence within therange as
appropriate for the mitigating factors.” (Emphasis added.)
Although this section includes mandatory language, (“must”
and “shall”’), read in context this mandatory language loses its
mandatory effect because this section directs the judge to
enhance and to mitigate the sentence “as appropriate,” thereby
affording to the judge discretion to select an appropriate
sentence anywhere within the range.
Thus, the finding of an enhancement factor simply does
not mandate an increased sentence. Instead, the Reform Act
thus provides what Blakely and Booker describe as an
“indeterminate,” .9n-mandatory, advisory sentencing scheme
which merely requires judges to consider enhancement
factors, along with other information, when exercising their
App. 96
discretion to select an appropriate sentence within the
statutory range. Unlike the Washington sentencing statutes
and the Guidelines, the Reform Act requires the trial judge to
consider enhancement and mii.2ting factors to aid the trial
judge in exercising discretion and choosing a sentence within
the statutory range, but the Reform Act does not mandate an
increased sentence upon a judge’s finding of an enhancement
factor. Rather, upon finding an enhancement factor under the
Reform Act, a judge has the discretion to select a sentence at
or above the presumptive minimum. Imposition of a sentence
above the presumptive sentence represents an exercise of the
judge’s discretion.
The dissent, the defendant, and the State point out that
when no enhancement or mitigating factors are found, section
40-35-210(c) mandates imposition of the presumptive
sentence. Although we do not disagree with this proposition,
we also dw not view it as dispositive of the constitutional
App. 97
issue. Unlike the “standard range” statute inBlakely, section
-210(c) does not lower the ceiling for felony sentences, nor is
it like the statute in Apprendi which exposed the defendant to
a punishment greater than that otherwise legally prescribed.
Section -210(c) operates solely to limit the sentencing court's
discretion in selecting a penalty within the available range by
mandating imposition of the presumptive sentence when there
“are no enhancement or mitigating factors.”” Tenn.Code Ann.
§ 40-35-210(c) (2003). The dissent contends that section -
210(c) “fixes a determinate point, not a range and the trial
judge has no discretion to deviate from this determinate point
unless he or she makes additional findings that enhancement
factors are present.” The dissent's observation about how the
statute functions is accurate. However, the dissent
musinterprets the constitutional relevance of this observation.
The United States Supreme Court explained in Booker
that “when a trial judge exercises his [or her] discretion to
App. 98
select a specific sentence within a defined range, *661 the
defendant has no right to a jury determination of the facts that
the judge deems relevant.” 125 S.Ct. at 750; see also Harris
v. United States, 536 U.S. 545, 558, 122 S.Ct. 2406, 153
L.Ed.2d 524 (2002) (“Judicial factfinding in the course of
selecting a sentence within the authorized range does not
implicate the indictment jury-trial, and reasonable-doubt
components of the Fifth and Sixth Amendments.) Indeed,
all nine justices agreed in Booker that the relevant
constitutional inquiry is not whether a judge exercises
sentencing discretion by finding facts, but rather whether the
judge's finding of a fact mandates an increased sentence. 125
S.Ct. at 749-50, 764. Thus, to determine whether the
defendants’ sentences were imposed in violation of the Sixth
Amendment, the relevant inquiry is not whether the Reform
Act permits judicial fact-finding. Nor is the relevant inquiry
whether the Reform Act sets a determinate point at which
App. 99
judges must begin the exercise of their discretion and
provides a determinate sentence which must be imposed in
the absence of enhancement and mitigating factors. Rather,
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.
Although the dissent is correct that the Reform Act requires
trial judges to determine whether enhancement factors exist,
the dissent fails to recognize that the finding of an
enhancement factor does not mandate an increased sentence.
Booker explains 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.
[27] Considering this point, we conclude that the
defendants’ sentences were not imposed in violation of the
Sixth Amendment. The Reform Act authorizes a
App. 100
discretionary, non-mandatory sentencing procedure and
requires trial judges to consider the principles of sentencing
and to engage in a qualitative analysis of enhancement and
mitigating factors. The Reform Act does not include a
formula, a grid, or any other mechanical process. It instead
sets out broad sentencing principles, enhancement and
mitigating factors, and a presumptive sentence, all of which
serve to guide trial judges in exercising their discretion to
select an appropriate sentence within the range set by the
Legislature. Under the Reform Act, the finding of an
enhancement factor does not mandate an increased sentence.
The Reform Act does not provide a system which requires or
even allows judicial power to “infringe [ ] upon the province
of the jury.” Blakely, 124 S.Ct. at 2540. Thus, for these
reasons, and in accordance with our duty to indulge every
presumption in favor of the constitutionality of statutes--a
duty which the dissent fails to discuss--we conclude that
App. 101
Tennessce's sentencing structure does not violate the Sixth
Amendment. [FN20]
FN20. In response to the United States Supreme Court's
decision in Blakely, Governor Bredesen appointed a “Task
Force on the Use of Enhancement Factors in Criminal
Sentencing.” After many meetings, this Task Force recently
issued a Report which includes recommendations for
statutory amendments. This decision should not be construed
as a comment upon the work or recommendations of the Task
Force. Rather, this decision is limited to the issues presented
by the case on appeal, and in resolving these issues this Court
must afford to the sentencing statutes a presumption of
constitutionality. Determining whether the recommendations
of the Task Force should be adopted in whole or in part is a
matter for the Governor and the General Assembly.
For these reasons, we are unable to accept the State's
concession that the defendants’ *662 sentences were imposed
App. 102
in violation of the Sixth Amendment. In light of our holding
that the defendants’ sentences were not imposed in violation
of the Sixth Amendment, the defendants are not entitled to
relief because the record reflects no plain error. The trial
court carefully considered the enhancement and mitigating
factors and exercised judicial discretion consistent with the
statute. The evidence does not preponderate against the trial
court's decision imposing the maximum sentence or the trial
court's decision ordering consecutive service of the sentences.
IV. Conclusion
Because the defendants failed to properly preserve their
constitutional claims of error, we have reviewed these claims
for plain error and have determined that the defendants are not
entitled to relief. Accordingly, the defendants’ convictions
and sentences are affirmed. It appearing that the defendants
are indigent, costs of this appeal are taxed to the State of
Tennessee.
App. 103
E. RILEY ANDERSON, J., filed a concurring and dissenting
opinion, in which ADOLPHO A. BIRCH, JR., J., joined.
' E. RILEY ANDERSON, J., concurring in part and dissenting
in part.
I agree that neither defendant is entitled to relief under
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004) and concur in that part of the Court's
opinion. | disagree, however, with the majority's discussion
and application of Blakely v. Washington, 542 U.S. 296, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004), to Tennessee's Criminal
Sentencing Reform Act of 1989 (“Reform Act”). The
majority concludes that the defendants’ sentences, imposed
under Tennessee Code Annotated section 40-35-210 (2003),
do not violate their Sixth Amendment nght to trial by jury.
See United States v. Booker, --- U.S. ----, ---, 125 S.Ct. 738,
750, 160 L.Ed.2d 621 (2005), Blakely, 124 S.Ct. at 2537. /
disagree.
App. 104
In my view, the presumptive sentences set forth in
Tennessee Code Annotated section 40-35-210 established a
fixed point for the defendants’ sentences such that the upward
departure, based solely on findings made bv the trial judge,
was imposed in violation of Blakely and therefore violated the
defendants’ Sixth Amendment right to trial by jury. I also
disagree with the majority's conclusions that Blakely did not
announce a new rule and that we should strictly apply issue
preservation principles when determining whether a
defendant has preserved a Blakely claim. | wouid therefore
vacate the defendants’ sentences and remand to the tral court
for resentencing in light of Blakely and Booker.
1. Constitutionality of the Tennessee Reform Act
| begin my analysis by examining the three recent United
States Supreme Court cases which drastically altered the legal
landscape by determining that, when a trial judge imposes a
sentence in excess of the maximum authorized by the jury's
App. 105
verdict alone, the sentence violates the Sixth Amendment
right to trial by jury.
In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
147 L.Ed.2d 435 (2000), the Supreme Court held that,
“{ojther than the fact of a pnor 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.” /d. at 490, 120 S.Ct. 2348.
Although the court has since clarified the meaning of “the
prescribed statutory maximum,” it has not deviated from the
core principle set forth in Apprendi: where the legislature has
defined a crime and set a punishment for *663 that crime, a
trial judge may not impose a sentence exceeding the
maximum punishment authorized by the jury's verdict alone.
Id.; see also Blakely,124 S.Ct. at 2538; Booker, 125 S.Ct. at
756. As 1 will explain, Apprendi's core holding did not
change with Booker and invalidates the defendants’ sentences
App. 106
A.
In Apprendi, the defendant pled guilty to a crime
statutorily punishable by up to ten years in prison. The trial
judge, however, made additional findings and sentenced the
defendant to twelve years--two years outside the maximum
statutory range. 530 U.S. at 469-71, 120 S.Ct. 2348.
Apprendi held that this departure beyond the statutory
maximum, based on facts not found by a jury, was
unconstitutional. /d. at 490, 120 S.Ct. 2348.
The court reasoned that the Sixth Amendment jury trial
guarantee, coupled with the Due Process protections of the
Fourteenth Amendment, “indisputably entitle [s} a criminal
defendant to ‘a jury determination that [he] is guilty of every
element of the crime with which he is charged, beyond a
reasonable doubt.'“ /d. at 477, 120 S.Ct. 2348 (citation
omitted). The court explained that at common law, it was the
province of the jury to determine whether a defendant had
App. 107
committed all of the elements charged, and it was the role of
the judge merely to impose sentence based on the jury's
findings. /d. at 478-79, 120 S.Ct. 2348. The court extracted
from this history the principles that any fact necessary to
support a defendant's punishment constitutes an element of
the crime and that all elements must be charged in the
indictment and found by a jury beyond a reasonable doubt.
See at 490, 120 S.Ct. 2348.
The court explained that the New Jersey sentencing
scheme atissuein Apprendi, whereby the judge could
enhance sentences by finding additional elernents not found
by the jury, was incompatible with the Sixth Amendment:
The historic link between verdict and judgment and the
consistent limitation on judges’ discretion to operate within
the limits of the legal penalties provided highlight the novelty
of a legislative scheme that removes the jury from the
determination of a fact that, if found, exposes the criminal
App. 108
defendant to a penalty exceeding the maximum he would
receive if punished according to the facts reflected in the jury
verdict alone. Apprendi, 530 U.S. at 482-83, 120 S.Ct. 2348.
Although Apprendi's limitation on judicial fact-finding
called into question the ability of judges ever to make
findings relevant to sentencing, the court seemed to limit
Apprendi only two years later, in Harris v. United States, 536
U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). In Harris,
five members of the court upheld a federal statute permitting
a judge to impose an increased minimum sentence based on
facts not found by the jury. /d. at 568, 122 S.Ct. 2406.
Although the court split four votes to four as to whether
Apprendi permitted this result, the majority upheld the
sentence. See id. The result in Harris, then, indicated that
Apprendi only applied when a judge found facts used to
sentence a defendant above the range for the crime of which
App. 109
he had been convicted. The open question, however, was
what constituted the applicable “range.”
The two cases that very recently addressed that open
question were Blakely and Booker. \n discussingBlakely and
Booker, it is critical to understand the sentencing systems that
were at issue in those two cases. Booker dealt with the
Federal Sentencing Guidelines. See 125 S.Ct. at 746. Blakely
dealt with Washington *664 state's Reform Act. See 124 S.Ct.
at 2535. Those sentencing systems operated as follows.
After a jury convicted a defendant (or a defendant entered a
guilty plea) as to a particular crime, the sentencing judge was
not free to impose a sentence anywhere within the statutory
range. Rather, under the federal Guidelines, a judge was
required to start at a “base range” determined by the jury's
verdict. See U.S. Sentencing Guidelines Manual § 1B1.1
(2004). The Washington Reform Act similarly set forth a
narrow “standard range” corresponding to the jury's verdict.
App. 110
See Wash. Rev.Code Ch. 9.944.530 (2004). After
determining the starting point based upon the jury's verdict,
both sentencing systems then required a judge to consider a
host of factors in addition to the jury's verdict to determine
whether a defendant should receive an enhanced sentence.
Under the federal Guidelines, judicial findings of
enhancement factors required a judge to move the defendant
up from the base range to higher ranges. This system was
mandatory, so that its effect was to overlay the full statutory
range with a series of mandatory “mini-ranges.” Under the
Washington system, however, a judge was permitted, but not
required, to enhance a sentence beyond the standard range if
he or she determined that aggravating factors justified a
departure. The result was that both the federal Guidelines and
the Washington Reform Act specified a “base” or “standard”
range as the starting point based upon the jury's verdict. Any
upward departures from that starting point could only be
‘App. 111
made upon a judge's finding of fact. See Blakely, 124 S.Ct. at
2535; Booker, 125 S.Ct. at 750-51.
Prior to Blakely and in light of Harris, Apprendi was
generally understood only to prohibit a judge from departing
| beyond the upper limit of a statutorily-defined range based on
facts not found by a jury. Apprendi did not appear to affect
sentencing schemes where a judge made findings that moved
a defendant out of the base range or from one “mini-range” to
another, as long as the sentence did not go outside the
statutory range. See Simpson v. United States, 376 F.3d 679,
681 (7th Cir.2004) (documenting that “before Blakely was
decided, every federal court of appeals had held that Apprendi
did not apply to guideline calculations made within the
statutory maximum”); see also, e.g., United States v. Helton,
349 F.3d 295, 299 (6th Cir.2003) (“[OJnce the jury has
determined guilt, the district court may sentence the defendant
to the statutory minimum, the statutory maximum, or
App. 112
anything in between, based on its (proper) application of the
Guidelines and based on its (permissible) preponderance-of-
the-evidence findings under the Guidelines.”).
The Blakely decision, released in June 2004, held that--
contrary to the widely-held interpretation of Apprendi--
because the base range or standard range created by a
sentencing scheme constitutes the “statutory maximum”
under Apprendi, “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.” Blakely, 124 S.Ct. at 2537. In other
words, any fact (other than facts admitted by a defendant or
a prior conviction) that increases a defendant's sentence
beyond the prescribed base or standard range for that
particular offense must be found by a jury.
Blakely thus radically constricted the ability of judges to
go outside the narrow basic range of punishment specified by
App. 113
the legislature. [FN1!] Theeffectof Blakely was to *665
reduce the applicable range to the base range or standard
range set forth in a sentencing scheme, as opposed to the full
range of years set forth in the criminal statutes. However,
although it rendered a narrow definition of what constitutes
the “maximum range,” the court left intact a judge's ability to
exercise discretion in sentencing within that greatly-reduced
range. Indeed, in Apprendi, the court had stated that judges
are free to exercise discretion in sentencing “in imposing a
judgment within the range prescribed by statute. We have
often noted that judges in this country have long exercised
discretion of this nature in imposing sentence within statutory
limits in the individual case.” Apprendi, 530 U.S. at 481, 120
S.Ct. 2348 (emphases in orginal) (citation omitted).
FN1. Washington's Sentencing Reform Act ts embodied in
the state code. See Wash. Rev.Code Ch. 9.94A. Although not
embodied in the United States Code, because the Federal
App. 114
Sentencing Guidelines “are binding on judges,” the court has
“consistently held that the Guidelines have the force and
effect of laws.” Booker, 125 S.Ct. at 750 (citations omitted);
see also id. at 752.
This year's Booker decision reaffirmed that this language
in Apprendi was still good law after Blakely, clarifying that
“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.” Booker, 125 S.Ct. at 750. In other words, as long
as a judge stays within the appropriate range, the decision
may be based on facts not found by a jury. The court's
solution was to excise the portion of the Federal Sentencing
Guidelines making them binding on judges. /d. at 756- 57.
In effect, then, by making the Guidelines advisory, the court
restored the full statutory range as the applicable range of
punishment. With the elimination of the mandatory base
App. 115
range and mini-ranges created by the Guidelines, a jury's
verdict will support punishment anywhere within the range
set forth in the statute, and a trial judge will be free to
exercise his or her discretion to impose a sentence anywhere
within that range, based on whatever facts “the judge deems
relevant.” Booker, 125 S.Ct. at 750.
Having explained the holdings of Apprendi, Blakely, and
Booker, | now discuss why, in my view, Booker does not
salvage the constitutionality of the Tennessee Reform Act.
B.
Relying on Booker, -the majority concludes that
Tennessee’s Reform Act provides the sort of indeterminate,
discretionary range within which the Supreme Court has held
that a judge may exercise discretion. The majority concludes
that Tennessee Code Annotated section 40-35-210 “merely
requires judges to consider enhancement factors ... but [it]
App. 116
does not mandate an increased sentence upon a judge's
finding of an enhancement factor.”
I agree with the majority that, on its face, Booker made
the constitutionality of the Tennessee Reform Act a closer
question than it was considering Blakely alone. In applying
Booker to the statutory ranges set forth in the Tennessee
Reform Act, however, the majority ignores the fact that the
Reform Act sets a “presumptive sentence” for each class of
felony within each range. Tenn.Code Ann. § 40-35-21 0(c)
(“The presumptive sentence for a Class B, C, D and E felony
shall be the minimum sentence in the range if there are no
enhancement or miti gating factors. The presumptive sentence
for a Class A felony shall be the midpoint of the range if there
are nc enhancement or mitigating factors.”). The presumptive
sentence is comparable to the base range of the federal *666
Guidelines and the standard range of the Washington Reform
Act.
App. 117
As we have often observed, Tennessee's “presumptive
sentences” are not merely advisory. Rather, “[t}he minimum
sentence is the presumptive sentence. The sentence imposed
cannot exceed the minimum sentence in the range unless the
State proves enhancement factors.” Siate v.Jones, 883
S.W.2d 597, 601 (Tenn.1994) (citation omitted); [FN2] see
also State v. Gutierrez, 5 S.W.3d 641, 644 (Tenn.1999);
State v. Carico, 968 S.W.2d 280, 288 (Tenn.1998). In other
words, “[i}f there are no enhancement or mitigating factors,
then the court must impose the minimum sentence within the
appropnate .ange.” Sentencing Comm'n Comments to
Tenn.Code Ann. § 40-35-210 (emphasis added).
FN2. At the time we decided Jones, the presumptive sentence
for all felonies was the minimum within the range. The
statute has since been amended to make the presumptive
sentence for Class A felonies the midpoint of the range rather
App. 118
than the minimum. 1995 Pub.Acts. c. 493, § 1, eff. July 1,
1995; 1998 Pub.Acts, c. 914, § 1, eff. May 7, 1998.
Thus, the effect of the mandatory presumptive sentence is
to create a determinate sentence, not a range. In this respect,
the Tennessee Reform Act is even more restrictive than the
Washington sentencing scheme or the Federal Sentencing
Guidelines, because rather than creating a base or standard
range, the Reform Act authorizes only a single sentence based
on the jury's verdict-- the minimum sentence, in the case of
Class B, C, D, or E felonies, and the midpoint of the range in
the case of Class A felonies. Under Tennessee’s Reform Act,
the jury verdict alone does not allow “a trial judge [to]
exercise [ } his discretion to select a specific sentence within
a defined range.” Booker, 125 S.Ct. at 750. The presumptive
sentence fixes a determinate point, not a range, and the trial
judge has no discretion to deviate from this determinate point
App. 119
unless he or she makes additional findings that enhancement
factors are present.
Because enhancement factors must be factors separate
from the elements of the crime, see Tenn.Code Ann. § 40-35-
114, they are by definition facts not found by the jury and are
therefore invalid under Apprendi and Blakely, even as
clarified in Booker. The only exception, of course, is prior
convictions, which need not be found by the jury in order to
be used as enhancement factors. Apprendi, 530 U.S. at 490,
120 S.Ct. 2348. However, because the Reform Act does not
require a judge to apportion a sentence enhancement among
the various enhancement factors, it is often impossible to
parse the degree to which an enhanced sentence 1s based on
prior convictions and the degree to which it is based on
impermissible enhancement factors.
My view of the United States Supreme Court's reasoning
in Booker differs from the majonty's. The majority reads
App. 120
Booker to permit any range-based sentencing scheme as long
as the scheme does not require a judge to increase a
defendant's sentence based upon a finding of an enhancement
factor. Because Tennessee's Reform Act does not mandate,
but merely permits, an increased sentence based upon a
judge’s finding of an enhancement factor, the majority
concludes that it is constitutional. However, the “mandatory”
facet of the Federal Sentencing Guidelines to which the court
in Booker objected was not the fact that the Guidelines
mandated upward departures based upon particular judicial
findings of fact. Rather, it was the fact that mo departures
could be justified based on the jury verdict alone, because the
jury verdict alone authorized only the base range sentence.
“Whether the judicially determined facts require a sentence
or merely allow it, the verdict alone does *667 not authorize
the sentence.” Blakely, 124 S.Ct. at 2538 n. 8. The solution
adopted by the Booker majority, excision of the provisions
App. 121
making the federal Guidelines binding upon judges,
eliminated the mandatory base range sentence, restoring a
judge's discretion to impose a sentence anywhere within the
entire statutory range. See 125 S.Ct. at 756-57.
The Washington state scheme struck down in Blakely was
effectively the same as Tennessee’s Reform Act. It mandated
a “standard range” based upon the jury's verdict and then
permitted, but did not require, a judge to enhance the
defendant's sentence in response to judicially-determined
enhancement factors. Critically, Booker did not change
Blakely's holding that the Washington state scheme was
unconstitutional. Indeed, Booker noted that “there is no
distinction of constitutional significance between the Federal
Sentencing Guidelines and the Washington procedures at
issue” in Blakely. Booker, 125 S.Ct. at 749. Again, then,
under Apprendi, Blakely, and Booker, the Sixth Amendment
is implicated not when judicial discretion is constrained, but
App. 122
when a judge departs beyond the upper limit of the sentence
authorized by the jury's verdict alone. Because Tennessee's
Reform Act is functionally identical to the Washington
Reform Act in that it constricts the statutory range from a
range of years to a mandatory, determinate point, any
sentences imposed beyond that point based upon facts not
found by a jury are unconstitutional. Were the legislature
simply to eliminate the presumptive sentence, in my view,
Tennessee's Reform Act would be constitutiona!.[FN3]
FN3. This is the solution proposed by the Governor's Task
Force on the Use of Enhancement Factors in Criminal
Sentencing.
In sum, the Tennessee Reform Act does not provide the
sort of open, indeterminate sentencing range envisioned in
Booker. Rather, as this Court has consistently interpreted it,
the Reform Act sets forth a presumptive sentence and
constrains a judge’s discretion in departing from that sentence.
App. 123
Therefore, the Reform Act does not pass constitutional muster
under Apprendi, Blakely, and Booker because it permits a
trial judge to impose a sentence in excess of the maximum
sentence authorized by the jury verdict alone.[FN4]
FN4. Moreover, Booker explained that in a true range
scheme, a judge may consider any factors he or she deems
relevant in assessing a sentence. However, under the
Tennessee Reform Act, the judge's discretion is restricted in
a number of ways. First, “[t}he State has the burden of
proving any enhancement factors.” Gutierrez, 5 S.W.3d at
644. Additionally, “only those enhancement factors
specifically authorized by statute may De used to increase a
sentence.” Jones, 883 S.W.2d at 601. Finally, the propriety
of applying a particular enhancement factor to a particular
case is subject to appellate review. See, e.g., Gutierrez, 5
S.W.3d at 645 (examining sentence enhancement based on
abuse of a position of private trust).
App. 124
The majority's conclusion that the Reform Act is a
discretionary sentencing procedure with “merely advisory”
statutory enhancement factors may come as a surprise not
only to both parties in this case but also to tnal and appellate
judges throughout the state. For fifteen years, we have
emphasized that the purposes of the Reform Act included
consistency and uniformity in sentencing. Tenn.Code Ann. §§
40-35-102, -103. Trial courts have been admonished to
adhere to the procedures of the Reform Act and to make
detailed findings of fact whenever applying enhancement
factors to enhance a sentence. The majority's conclusion that
ihe application of these principles has been merely advisory
and fully discretionary throughout the entire sentencing range
is *668 inconsistent with both the Reform Act and this
Court's interpretation of it over the past fifteen years.
In the case before us, the record reveals that the
defendants’ sentences were enhanced by fifteen years, or 44%,
App. 125
based on facts not found by a jury. The sentencing judge
relied on a number of factors in enhancing both defendants’
sentences, to wit: the trial judge found that both defendants
had prior criminal convictions, that both were leaders in the
commission of the offense; that, as to three of the four
counts, the amount of property taken was great; and that, as
to Count Two, the defendants possessed or employed a
firearm. Tellingly, the trial judge acknowledged that her
decision that the defendants were leaders in the offense was
not consistent with the jury's verdict. She stated, however,
that “we must keep in mind that enhancing factors must only
be proven by preponderance of the evidence, not beyond a
reasonable doubt, so that even though the jury's verdict might
have been different,” she was electing to apply the
enhancement factor. This discrepancy between a jury's
findings and a judge's findings is precisely what Apprendi and
App. 126
Blakely held that the Sixth Amendment is intended to guard
against.
The trial judge noted that she was giving great weight to
the prior criminal convictions, but did not make sufficient
findings to reveal the portion of the enhancement attributable
to the prior convictions. The judge applied the enhancement
factors to impose the maximum sentence for each count and
ordered that the sentences run consecutively, for an effective
total sentence of forty-nine years. By applying the Reform
Act to sentence the defendants to a total of fifteen years more
than the maximum sentences authorized by the jury's verdict,
the trial judge violated the defendants’ Sixth Amendment
rights. Because, as | explain below, I would hold that Blakely
announced a new rule and that the defendants timely raised
Blakely claims such that they are entitled to review, | would
vacate their sentences and remand for resentencing.
Il. New Rule
App. 127
In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708,
93 L.Ed.2d 649 (1987), the Supreme Court held that “a new
rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct
review or not yet final...” In my view, Blakely announced a
“new rule” within the meaning of Griffith.
Following Apprendi, it was widely understood that the
relevant “statutory maximum” was the full statutory range of
punishment available for a particular offense. See, e.g.,
Simpson, 376 F.3d at 681. As explained above, Blakely
fundamentally altered this widely-held understanding.
Apprendi was decided by a 5-4 split, with the Justices
filing five separate opinions. The court itself seemed to
struggle with the precise scope of Apprendi, as is evidenced
by the four separate opinions filed in Harris only two years
later and the Jack of a controlling rationale in Harris. See 536
App. 128
U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524. Apprendi's scope
and ramifications, therefore, were certainly open to debate.
In constricting the definition of statutory maximum,
“Blakely radically reshaped our understanding of a critical
element of criminal procedure.” Smylie v. State, 823 N.E.2d
679, 687 (Ind.2005). Several courts have recognized that this
“radical{ | reshap[ing]” of Apprendi constituted a new rule.
See, e.g., Simpson, 376 F.3d at 681; United States v. Price,
400 F.3d 844, 847 (10th Cir.2005); *669Smylie, 823 N.E.2d
at 687. Our Tennessee Court of Criminal Appeals has
repeatedly so held. See, e.g., State v. Walters, 2004 WL
2726034 at *20 (Tenn.Crim.App. Nov.30, 2004). Most
significant to defendants’ appeal, this Court failed to predict
the extension of Apprendi wrought in Blakely. See Graham
v. State, 90 S.W.3d 687, 691-92 (Tenn.2002) (rejecting
Apprendi-based challenge to the Reform Act). Certainly,
App. 129
then, for purposes of Tennessee law, Blakely announced a
new rule.
Additionally, in this year's decision applying Blakely to
the Federal Sentencing Guidelines, the Supreme Court itself
stated that it was announcing a new rule. United States v.
Booker, 125 S.Ct. at 769 (commenting that holding would
apply to all federal cases on direct review). If Booker, which
was merely an application of Blakely, stated a new rule, then
surely Blakely did, too.
| agree with the majority that when the United States
Supreme Court announces a new constitutional rule, that rule
is retroactively applicable to all cases on direct review.
Griffith, 479 U.S. at 328, 107 S.Ct. 708; see also United
States v. Johnson, 457 U.S. 537, 562, 102 S.Ct. 2579, 73
L.Ed.2d 202 (1982). For this reason, 1 concur in Part Il of
the Court's opinion, concluding that Crawford announced a
App. 130
new rule but that the defendants are limited to plain error
review because they failed to preserve the issue below. [FN5]
FNS. The majority suggests that it does not understand my
concurrence in its Crawford analysis in light of my dissent
from its Blakely analysis. The majority, however, errs in
treating cases that do not announce “new rules” the same as
cases that do announce “new rules.” Moreover, unlike the
majority, | would hold that the Blakely issue has been
sufficiently preserved for the reasons explained in part III of
my dissent. For these reasons, | cannot agree with the
majority's application of plain error review to the defendants’
Blakely claims.
I part ways with the majority, however, when it reaches its
subsequent analysis. After the majority concludes that
Blakely did not announce a new rule, it concludes that
defendants are nevertheless entitled to plain error review.
App. 131
Moreover, the majority suggests that defendants who
preserved an issue below--even if that issue is not the subject
of a new constitutional rule--are still entitled to plenary
appellate review. See maj. op. at 651 (“[B]ecause the
defendants failed to raise and preserve for review their Sixth
Amendment challenge, the defendants are litnited to seeking
relief via plain error review.”).[FN6] Under the majority's
reasoning, the determination of whether or not a decision
constitutes a “new rule” is irrelevant to the issue of
retroactivity. Indeed, all decisions are now retroactive,
whether they constitute a new constitutional rule or not. The
only question is whether or not the defendant properly
preserved the issue, entitling him to p onary review, or
whether the defendant failed to preserve the issue, entitling
him only to plain error review. As a result, the Court has
created a framework under which two starkly different
scenarios, one, the new constitutional rule in Crawford and
App. 132
the other, a not--new constitutional rule in Blakely, are treated
identically. Because the majority has therefore embarked on
a new course that *670 renders traditional analysis of
“retroactivity” obsolete, | dissent from Part III of the majority
opinion in its entirety.
FN6. The case the majority cites for the proposition that plain
error is determined with reference to the state of the law at the
time of appeal, Johnson v. United States, 520 U.S. 461, 468,
117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), was a case applying
a new rule retroactively and so does not support the majority's
position. Similarly, the majority's view thafohnson supports
its conclusion that all decisions apply retroactively, whether
or not based on a new constitutional rule, is misplaced; as |
have noted, Johnson was based on a new constitutional rule.
Ill. Preservation of Issue for Review
The majority concludes that courts need only apply new
rules to cases on direct review (so-called “pipeline” cases) if
App. 133
the issue to which the new rule pertains was properly
preserved for review. Although | agree with the proposition
that plenary retroactive application of Blakely should be
tempered by application of our prudential issue preservation
rules, | do not agree with the majority's restrictive view of
what is necessary to preserve a Blakely claim.
The U.S. Supreme Court has indicated that application of
prudential review doctrines such as waiver and forfeiture will
not run afoul of Griffith, Booker, 125 $.Ct. at 769. | do not
believe the preservation requirement should be applied so
stringently, however, as to require clairvoyance on the part of
defendants or their attorneys. As explained above, the
decision in Blakely was a widely-unforseen consequence of
Apprendi. \n my view, then, “requiring a defendant or
counsel to have prognosticated the outcome of Blakely
would be unjust.” Smylie 823 N.E.2d at 689, see also
United States v. Henningsen, 387 F.3d 585, 591 (7th
App. 134
Cir.2004) (adopting lenient review standard with regard to
Blakely issues).
Although the majority asserts 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,” majority op. at n.
9, a closer examination of the only two criminal cases cited
by the majority reveals that our past practice has been to take
a flexible approach to issue preservation requirements. In
Farris v. State, 535 $.W.2d 608, 614 (Tenn.1976), a 3-2
majority of this Court invalidated a statute requiring that jury
charges include instruction on the intricacies of parole
eligibility after concluding that the body of the statute was
broader than its caption. One year later, in Adams v. State,
547 S.W.2d 553, 557 (Tenn.1977), the Court addressed
application of the Farris holding to petitioners on direct
review. Although the defendants in Adams appealed their
App. 135
sentences on the basis that the challenged statute was
unconstitutionally vague--a rationale not supported by the
majority decision in Farris--this Court concluded that review
had been preserved:
We recognize that our own rules, reflective of the case
law of the state, require specificity in assignments.
They also demand cquitable and practical
interpretation.... We are not willing to penalize a
criminal defendant for an incomplete and/or
imaccurate assignment. Especially would we not do
this in a case wherein this very Court has been sharply
divided, with at least four different views, all
supportable by recognized legal principles, but only
one of which was able to command even a bare
mayjonity.
Adams, 547 $.W.24 at 557.
Moreover, a hard-line application of preservation
principles to Blakely claims may have the unintended
consequences of burdening defense counsel with raising
numerous speculative claims and burdening trial and appellate
courts with disposing of them. As the Indiana Supreme Court
recently observed in Smylie,
App. 136
A very tough Blakely preservation rule would prompt
practitioners to fill trial time and appellate briefs with all
imaginable contentions, contrary to the general advice that it
is good practice to focus on the most viable issues. It would
also drastically alter the burden imposed on counsel as to
what constitutes *671 effective assistance to their clients....
An attorney is not required to anticipate changes in the law
and object accordingly in order to be considered effective....
[A] trial lawyer or an appellate lawyer would not be
ineffective for proceeding without adding a Blakely claim
before Blakely was decided. Consequently, we do not deem
the failure to raise a Sixth Amendment objection to the trial
court as it proceeded through sentencing to constitute
forfeiture of a Blakely issue for purposes of appellate review.
823 N.E.2d at 690 (quotations and citations omitted).
As another practical point, | note that we have implicitly
held that Blakely/Apprendi claims are cognizable on post-
App. 137
conviction review pursuant to Tennessee Code Annotated
section 40-30-117 (2003). See Graham, 90 S.W.3d at 692
(considering whether enhancement of petitioner's sentence
based on factors not found by a jury, but still within the
statutory range, violated Apprendi ). Because there is no
issue preservation requirement for post-conviction claims
brought under section 40-30-1 17, a petitioner whose sentence
becomes final within one year of the Blakely decision will
have the opportunity to raise a Blakely claim on collateral
review, whereas petitioners still on direct review who have
not preserved the issue will not be able to obtain plenary
review of a Blakely claim.[FN7]
FN7. The majority argues that, based on cases decided in the
United States Supreme Court, Apprendi and Blakely will not
apply retroactively to cases on collateral review. While |
agree that the U.S. Supreme Court has so held, the fact
remains that we considered such an argument on the merits in
App. 138
Graham. Although the majority states I have cited no
authority for my position, the majority does not address
Graham. Moreover, as we have often observed, this Court is
free to interpret our State's statutes and Constitution as
affording greater protection than does federal law. See, e.g.,
State v. Harris, 919 $.W.2d 323, 333 (Tenn.1996) (“We, as
the Supreme Court of Tennessee, have the full and final
power to interpret our state constitution. Tennessee, and
every state, has the sovereign right to adopt in its own
Constitution individual liberties more expansive than those
conferred by the Federal Constitution.”) (citations and
internal quotation omitted).
Because | believe that both equity and practical
considerations weigh in favor of a more lenient standard, |
would require only that a petitioner have made some
objection to his sentence at trial and have timely raised the
Blakeiy claim on appeal. See Smylie, 823 N.E.2d at 690
- App. 139
(“{I}t does not ask too much that a criminal defendant have
contested his or her sentence on appeal, even if the Blakely
element of that contest is added later....""). In my view, such
a rule would strike a sound balance between fairness and
equity on the one hand, and gatekeeping and consistency
concerns on the other.
IV. Application to Defendants’ Sentences
The record reveals that, during the sentencing hearing,
both defendants argued against application of the
enhancement factors and against consecutive sentencing. The
judge enhanced the defendants’ sentences using four different
enhancement factors. The only factor that may be
constitutionally applied without being found by a jury is the
enhancement for prior convictions. The judge indicated that
she was “going to give great weight” to the enhancement
facter based on prior criminal conduct, but did not indicate
App. 140
the degree to which the increased sentences were based on
that enhancement factor.
Both defendants argued to the Court of Criminal Appeals
that their sentences were excessive and the Court of Criminal
Appeals decided those claims on the merits. *672 Although
the defendants did not challenge their sentences on Sixth
Amendment grounds, | would not fault them for failing to
“have prognosticated the outcome of Blakely,” Smylie, 823
N.E.2d at 689, particularly in light of our decision in Graham.
Because they timely raised Blakely challenges in this Court,
I] would vacate their sentences as constitutionally invalid and
remand to the trial court for resentencing.
Conclusion
Although I concur in the majority opinion as to its
resolution of the defendants’ Crawford issues, | disagree with
the majority's discussion and resolution of the Blakely issues.
I therefore dissent. | would hold, first, that Blakely
App. 141
invalidates sentences under Tennessee Code Annotated
section 40-35-210 to the extent that a judge enhances the
sentence beyond the presumptive sentence based on facts,
other than the fact of a prior conviction, not found by a jury;
second, that Blaxely announced a new rule; and third, that
defendants on direct review are entitled to raise Blakely
claims as long as they challenged their semvences below and
as long as they timely added a Blakely claim to their appeal.
I would therefore vacate Gomez's and Londono’s sentences
and remand to the tnal court for appropriate resentencing.
I am authorized to state that Justice BIRCH joins with me
in this concurring and dissenting opinion.
ORDER DENYING PETITION FOR REHEARING
DROWOTA, C.J.
Petitions for rehearing have been filed by Edwin Gomez,
Jonathan Londono, the Attorney General and Reporter,[FN | }
App. 142
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, 119 S.Ct. 1215, 143
L.Ed.2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Ring v. Arizona, 536
U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004), and United States v. Booker, --- U.S. ----, 125 S.Ct.
738, 160 L.Ed.2d 621 (2005).
FN1. The Attorney General seeks reheernig only as to Part
II1.C of the majority opinion and argues that the Tennessee
Criminal Sentencing Reform Act of 1989 (“Reform Act”)
violates the Sixth Amendment.
App. 143
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 the
*673 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.
App. 144
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. /d. 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.
App. 145
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.
Janice M. Holder and William M. Barker, JJ., Concurring.
E. Riley Anderson and Adolpho A. Birch, Jr., JJ.,
Dissenting.
163 S.W.3d 632
App. 146
IN THE COURT OF CRIMINAL APPEALS OF
TENNESSEE
AT NASHVILLE
September 16, 2003 Session
STATE OF TENNESSEE v. EDWIN GOMEZ and
JONATHAN S. LONDONO
Direct from the Criminal Court
or Davidson County
No. 2001-A-280
Cheryl Blackburn, Judge
No. M2002-01209-CCA-R3-CD
Filed February 18, 2004
The Appellants, Edwin Gomez and Jonathan S. Londono,
were convicted by a Davidson County jury of conspiracy to
commit aggravated robbery, facilitation of first degree felomy
murder, facilitation of especially aggravated robbery, and
facilitation of aggravated robbery. Gomez and Londono were
ordered to serve forty-nine years in the Department of
Correction as Range | standard offenders. On appeal, Gomez
presents the following issues for our review: (1) whether the
trial court erred in not suppressing the photographic line-up
App. 147
and subsequent in-court identification and (2) whether it was
error to permit testimony concerning $19,600 found in
Gomez’s apartment. Londono argues that: (1) the trial court
erred by admitting the statements of Co-defendant Bryant
Guartos; (2) the tnal court erred by admitting the statements
of the victim as either an excited utterance or a dying
declaration; and (3) the evidence was insufficient to support
the verdicts. Both Gomez and Londono argue that the length
of their respective sentences was excessive and that
consecutive sentencing was improper. After a review of the
record, the judgments of the trial court are affirmed.
Tenn. R. App. P. 3; Judgments of the Criminal Court are
Affirmed.
DAVID G. HAyeEs, J., delivered the opinion of the court, in
which JOSEPH M. TIPTON and JOHN EVERETT WILLIAMS, JJ.,
joined.
App. 148
Glenn R. Funk and Cynthia M. Fort, Nashville, Tennessee,
attorneys for Appellant, Edwin Gomez; David A. Collins,
Nashville, Tennessee, and James Stafford, Houston, Texas,
Attorneys for Appellant, Jonathan S. Londono.
Paul G. Summers, Attorney General and Reporter, Michael
Moore, Solicitor General; Elizabeth B. Marncy, Assistant
Attorney General; Victor S. (Torry) Johnson III, District
Attorney General; and Bret Gunn and Roger Moore, Assistant
District Attorneys General, for the Appellee, State of
Tenness ¢.
OPINION
Factual Background:
On March 16, 1999, Carlyle & Company Jewelers,
located in the Green Hills Mall of Nashville, had a special
showing of approximately 100 to 110 Rolex watches with an
estimated value of $750,000. The following day, March 17",
two security guards, Roy Rogers and Eugene Nagele, were
App. 149
removing the watches from Carlyle & Company in order to
transport them to another showing. Nagele exited the mall
first in order to inspect a stairwell and elevator area. Rogers
began walking to their Jeep, and Nagele “fell in behind him
about 25 o¢ 30 feet.” Nagele then heard the “sound of
running footsteps behind” him. Nagele shouted, “Roy,” and
“started to duck down and turn, and there was a thump and a
shot.” After getting a brief glance of a hooded figure and
hearing voices speaking in a foreign language, Nagele was
struck in the back of his head and lost consciousness for a
short time. His Colt pistol, estimated at approximately
$1,500, was stolen. When Nagele awoke, he heard Rogers
yelling, “Gene, Gene, I’ve been shot.” Rogers twice asked
Nagele to “stop the bleeding.” Rogers died twenty-one
later of complications from his gunshot wound.
Deborah Sloan arrived at the mall around 9:10 or 9:15
a.m. Ms. Sloan was taking her children *
App. 150
class in the Mall” that morning. She stated that no more than
a minute after she pulled her minivan into the parking lot, she
“heard a bang, a loud bang, and a lot of running and rustling
and things like that.” She observed one man lying on the
ground, a “second man was sort of on his hands and knees
faced away from [her], and then there was three men just
running around{.|” She then saw two of the men who were
“running arourtd” pick up the steel boxes, which contained
the watches, and the third man “lean over beside the man who
was lying on the ground and pick up a gun.” Further, she
observed the men leave the parking lot and drive away in a
minivan. She called 911 on her ceil phone and remained at
the scene until police arrived
Officer Thales Fim wer: of the Nashville Police
Department was the first tu arrive at 9.25 a.m. He found
Rogers lying on the ground and recognized that he was
“clearly in bad shape.” Finchum asked Rogers what
App. 151
happened, and Rogers responded that the man who shot him
was a “mulatto” wearing a dark hood. Ms. Sloan descnbed
the assailants as having “dark skin, dark hair, fairly average
height and weight as far as size.” She also commented that
“{t}hey all had on very big baggy clothing and very heavy
loose jackets” even though it was a warm day in the middle
of March. Sloan estimated that the three men were in their
“twenties.” She also observed the minivan as being
“purplish-maroon color” with “gold lettering and gold trim on
the wheels.”
Christina Hudson, a mall employee, was in the parking lot
on the morning of the robbery. As she was sitting in her car,
she observed a dark-skinned male, that she descnbed as either
Hispanic or Black, get into the passenger side of a purplish-
colored minivan. As the man got into the vehicle, she saw
three other people “raise up.” She described the other three
men as also Hispanic or Black. Ms. Hudson observed three
App. 152
of the men exit the vehicle, but she did not know about the
robbery and shooting until “about an hour afterwards.” She
was unable to identify any of the men in the van.
Michelle Nicholson was traveling on !-40 a little after
8:00 a.m. on March 17". While driving, she observed a
maroon van with Florida plates “weaving in and out of
traffic.” Her first observation of the van was “([rJight at the
White Bridge Road exit.” She described the four occupants
of the vehicle as “all male, Hispanic, dark hair.” According
to Ms. Nicholson, the van exited on Hillsboro Road, which
would “be the way to Green Hills Mall.” Later that day,
when she heard news reports of the robbery and the
description of the van, she called the police department and
reported the van she had seen. Nicholson was unable to
identify either of the Appellants.
Upon receiving this information from M_ Nicholson,
Sergeant Freddie Stromatt of the Nashville Police Department
App. 153
concluded that the suspects “possibly stayed at a motel along
the route of 140 west of Nashville, headed out towards
Memphis.” Stormatt “instructed detectives to go to each
motel from the Charlotte Pike exit all the way back to the
county line, to check each motel and see if they had any male
Hispanics that had been staying in that motel that were
”
driving vans.” One of the detectives discovered that male
Hispanics driving two vans had stayed at the Howard Johnson
Motel at I-40 and Charlotte Pike.
Sue Madan, the manager of the Howard Johnson, told
police that the men rented rooms 202 and 204. She provided
telephone records for these two rooms. These records
identified telephone calls from the motel to two pay
telephones, one located inside the mall directly across from
Carlyle & Company and the other located outside a restaurant
“{ajbout a block-and-a-half” down the street from the mall.
These records also showed that calls were placed from the
App. 154
rooms using several cards. The record for one of the cards
showed that calls were placed from the Howard Johnson to
Miami on March 15, 1999, then from Alabama to Miami on
March 17,1999, and then from Gomez’s home telephone
number to Bogota, Colombia on March, 18, 1999.
Videotapes from the Howard Johnson were also provided to
the detectives. Detective Harold Haney of the Nashville
Police Department testified that the tapes showed two men at
the front desk, a maroon van and a white van in the motel
parking lot, and people coming and going from the- vans.
However, Detective Haney admitted that the tapes were not
clear enough to identify any of the individuals.
Robin Capps, a housekeeper at the motel, found a “seat,
like that come out of a van” in Room 204. She and another
housekeeper removed the seat from the room. The seat was
later recovered by the police.
App. 155
Tiffany Lee Dozier, the Howard Johnson front desk clerk,
registered “at least” five Hispanic men in March. She
recalled that they had two minivans, one white and the other
maroon. She stated that she interacted with one man in
particular. He checked the group into the hotel and “was
flirting with [her].” According to Dozier, “[h]je spoke very
good English.” Ms. Dozier was later shown a photo array
and identified Co-defendant Bryant Guartos as this man. In
addition, Ms. Dozier identified Londono from a pre-trial
photo array as the man who “would come to the desk with the
guy that spoke English.” Ms. Dozier was unable to identify
either of the Appellants at trial.
A search of Room 204 was conducted. Detective James
Arendall of the Nashville Police Department found a box of
ammunition on the top shelf of the closet. The bullet taken
from the victim Rogers was consistent with the ammunition
found in the motel closet. Following fingerprint analysis, it
App. 156
was determined that Guartos’ fingerprints were on the
telephone receiver, Londono’s fingerprints were on the
ammunition box, and Gomez’s finerprints were on the
telephone book.
On July 29, 1999, Detective Norris Tarkington of the
Nashville Police Department presented a photo array to Ms.
Sloan. Ms. Sloan identitied Co-defendant Bryant Guartos as
the man who stole the security guard’s gun. On October 10,
2000, Detective Tarkington again presented a photo array to
Ms. Sloan, and she identified Londono as “the person that I
saw pick up the last of the boxes and head back toward their
minivan.” On this same date, Ms. Sloan was shown a second
photo array, and she identified Gomez as “the other man who
was carrying boxes.” Ms. Sloan identified both of the
Appellants at trial and testified that she was “very sure’ that
they were the two men involved in the crime.
App. 157
Barbara Franklin, an employee of Carlyle & Company,
testified that a Hispanic man came into the store the afternoon
before the robbery and was asking questions about the Rolex
watches. She later identified this man as Co-defendant
Bryant Guartos. She also testified that another man, who
spoke “halting” English, accompanied Guartos; however, Ms.
Franklin was unable to identify either of the Appellants as the
man who accompanied Guartos.
Londono’s girlfriend, Julie Jimenez, testified that she was
living in Miami with Londono in tlie Spring of 1999. During
that time, Londono left for “[s]even or ten days” but did not |
tell her where he was going. He told her the purpose for the
trip was to make some money. She testified that Gomez, Co-
defendant Guartos, Maria Sierra, and another unidentified
i dividual accompanied Londono on this trip. According to
Jimenez, the group left in two vans, one white and the other
maroon. Londono called Jimenez while he was gone and told
App. 158
her that he was in Tennessee. She recognized Gomez’s voice
in the background of this phone conversation. At some point
before Londono returned to Miami, he called Jimenez and
told her that he wanted to give her a Rolex watch. Upon his
return, Londono related the events of the robbery to Jimenez.
While he gave a different version of events, he did admit to
taking the watches. Thereafter, Londono and Jimenez went
on a shopping spree and spent approximately $3,000 on
furniture and a television set. According to Jimenez,
Londono insisted that she purchase everything in her name.
Ye also gave Jimenez some Nashville postcards.
On April 25, 1999, Detective Gerard Starkey of the
Miami Dade Police Department arrested Londono at the
Miami Marriott Hote! on unrelated charges. Upon a search
of Londono’s burgandy van, Detective Starkey found a
postcard of the Nashville riverfront area. Thereafter,
Detective Starkey located Gomez at his apartment in the
App. 159
Fontainebleau Hilton Hotel. Upon a search of Gomez’s
apartment, detectives found $19,600 in cash concealed
beneath the kitchen counter above the dishwasher. The
detectives also discovered a furniture receipt for $570, dated
March 25, 1999, and three money transfer receipts for $6,000,
two of which were dated March 23, 1999.
Londono and Gomez were both questioned by the police
regarding their involvement in the robbery. The Appellants
both denied ever being in Nashville. Co-defendant Guartos
was also interviewed and confessed to his involvement in the
crime. In Guartos’ statement, he said they sold the watches
for $230,000 in Miami, and they got $40,000 each. Guartos
later denied ever making this statement.
Gomez, Londono, and Guartos' were subsequently
indicted as follows: Count I, conspiracy to commit
aggravated robbery; Count Il, felony murder of Roy Rogers;
'Guartos was tried separately and convicted as indicted.
App. 160
Count Ill, especially aggravated robbery of Roy Rogers; and
Count IV, aggravated robbery of Eugene Nagele. After a trial
by jury, Gomez and Londono were convicted of Count | as
charged; Count 'I, facilitation of felony murder as a lesser
included offense; Count III, facilitation of especially
aggravated robbery as a lesser included offense; and Count
IV, facilitation of aggravated robbery as a lesser included
offense. Following a sentencing hearing, the Appellants
received a total effective sentence of forty-nine years. The
Appellants’ motions for new trial were denied, and this
appeal followed.
ANALYSIS
I. Suppression of Photo Array
Gomez argues that the trial court erred by not suppressing
Deborah Sloan’s out-of-court photo identification of the
Appellant and subsequent in-court identification.
Specifically, he contends that “the out of court photo array
App. 16]
was impermissibly suggestive and should have been
suppressed but also, further contends that due to the
impermissible suggestiveness of the out of court
identification, the subsequent in court identification should
not have been admitted.”
The Appellant’s motion to suppress was filed on
Thursday, January 31, 2002. A hearing on the motion was
held on Friday, February 1, 2002. Argument was presented,
but no proof was offered. Trial began on Monday, February
4, 2002. The trial court ruled that the suppression issue was
waived for failure to comply with the pre-trial scheduling
order. The State contends that the issue is, likewise, waived
on appeal. We agree.
Pursuant to Rule 12(b)(3), Tennessee Rules of Criminal
Procedure, motions to suppress evidence
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