# Appendix — Gomez v. Tennessee, 127 S. Ct. 1209 (2007) (No. 05-296)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0172%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

(2) Le DS
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 + . The sentencing hearing
may occur immediately after ; « it is determined, subject to
the rights of the parties to postpone the hearing under § 40-
35-209(a).

(b) Where’ the sentence is agreed upon by the district

attorney general and the defendant and accepted by the court,

App. 249

the court may immediately impose sentence as provided in §
40-35-905(d), and no specific sentencing hearing or
presentence reports shall be required. The judge may, in the
judge's discretion, direct that a complete presentence report
be prepared. No defendant sentenced to the custody of the
department of correction shall be committed or conveyed to
the department unaccompanied by the completed presentence
report or investigation and report required by §40-35-
209(d)(1). Furthermore, a presentence report or investigation
and report shall be prepared on all defendants sentenced to a
period of continuous confinement of one (1) year or greater
in a local jail or workhouse. This requirement shall not be
cause for delay in conveying the defendant to the local
institution to which the defendant has been committed. There
shall be a presentence report and hearing on any issue of
sentencing not agreed upon by the parties and accepted by the

court.

App. 250

(c) If a capital offense is charged and the jury returns a
verdict where death is a possibility, the jury shall fix the
punishment in a separate sentencing hearing as otherwise
provided by law, unless the jury is waived as to punishment.

(d) If the trial judge who presided at the trial on the ierits
is unavailable because of death, resignation, retirement, ill
health or loss of jurisdiction, another judge appointed by the
chief justice of the Tennessee supreme court may impose the
sentence.

(e) If the criminal offense for which the defendant is
charged carries an enhanced punishment for a second or
subsequent violation of the same offense, the indictment in a
separate count shall specify and charge such fact. If the
defendant is convicted of the offense, then the jury must find
that beyond a reasonable doubt the defendant has been
previously convicted the requisite number of times for the

same offense. Upon such finding, the defendant shall be

App. 251

subject to the authorized terms of imprisonment for the

felonies and misdemeanors as set forth in § 40-35-1111.

§ 40-35-210. Imposition of sentence; evidence;
presumptive sentences

(a) At the conclusion of the sentencing hearing, the court
shail first determine the appropriate range of sentence.

(b) To determine the specific sentence and the appropriate
combination of sentencing alternatives that shall be imposed
on the defendant; the court shall consider the following: -

(1) The evidence, if any, received at the trial and the
sentencing hearing; i

(2) The presentence report;

(3) The principles of sentencing and arguments as to
sentencing alternatives;

(4) The nature and characteristics of the criminal

conduct involved;

App. 252

(5) Evidence and information offered by the parties on
the enhancement and mitigating factors in §§ 40-35-113 and
40-35-114; and

(6) Any statement the defendant wishes to make in the

defendant's own behalf about sentencing.

(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 no 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

App. 253

court shail 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 ebemseaiee 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.

(f) Whenever the court imposes a sentence, it shall place

on the record either orally or in writing what enhancement or

mitigating factors it found, if any, as well as findings of fact

as required by § 40-35-209.

App. 254

(g) A sentence must be based on evidence in the record of
the trial, the sentencing hearing, the presentence report, and,
the record of prior felony convictions filed by the district
attorney general with the court as required by § 40-35-202(a).

(h)(1) Upon sentencing a defendant to the department of
correction or to a local jail or workhouse for a period of more
than two (2) years, the judge shall announce in open court
that information explaining the sentence just imposed is
available to anyone upon request. The information explaining
the sentence shall consist of a copy of the completed uniform
judgment document required by Rule 17 of the Rules of the
Supreme Court and § 40-35-209(e), and an accompanying

document that shali contain the following information:

(A) A statement explaining that an estimate of the
number of years of a felony sentence that a defendant is
required to serve before being first eligible for release on

parole can be calculated by determining the defendant's range

App. 255

and release eligibility percentage and then applying that
percentage to the defendant's sentence. An example is a
defendant sentenced to ten (10) years in the department of
correction as a persistent range III offender with a release
eligibility percentage of 45%. That means the defendant must
serve forty-five percent (45%) of ten (10) years or four and a
half (4 1/2) years before being first eligible for release on
parole. This four and a half (4 1/2) year minimum length of
sentence service does not include a defendant's sentence
reduction credits or the possible effect of prison
overcrowding which are discussed in subdivisions (h)(1)(C)

and (h)(1)(E), respectively;

(B) A statement that whether a defendant is actually
released from incarceration on the date when such defendant
is first eligible for release is a discretionary decision made by

the board of probation and parole based upon many factors

App. 256

and that such board has the authority to require the defendant

to serve the entire sentence imposed by the court;

(C) A statement that pursuant to § 41-21-236, a
defendant, after incarceration, may earn sentence reduction
credits of up to eight (8) days per month for good institutional
behavior and up to eight (8) dzys per month for satisfactory
program performance for a maximum total of sixteen (16)

days per month;

(D) A statement that the actual number of such reduction
credits for good behavior and program performance that a
defendant earns depends upon the defendant's conduct while
incarcerated and that the department may remove sentence

c

credits previously awarded ‘or certain disciplinary

infractions; and

(E) A statement that during certain specified times of
prison overcrowding the governor may, pursuant to § 41-1-

504, direct the board of probation and parole to grant early

App. 257

parole to a sufficient number of certain types of inmates to
reduce the overcrowding.

(2) The failure of a judge to provide the sentence
explanation information upon request as required by this
subsection or the fact that the sentence explanation
information provided may be inaccurate, incomplete or
erroneous shal] not be used by a defendant in a criminal case
as a ground for appeal, new trial, post-conviction relief or
habeas corpus, nor shall it be construed to set aside, reverse,
vacate, or void a finding of guilt, an acceptance of a plea of

guilty or the sentence imposed in any criminal case.

§ 40-35-211. Imposition of sentence; determinate
sentences

In fixing a sentence for a felony or misdemeanor, the
court shall impose a specific sentence length for each offense:

(1) Specific sentences for a felony shall be for a term of years

App. 258

or months or life, if the defendant is sentenced to the
department of correction; or a specific term of years, months
or days if the defendant is sentenced for a felony to any local
jail or workhouse. Specific sentences for a misdemeanor are
for a specific number of months or days or hours or any
combination thereof. There are no indeterminaie sentences.
Sentences for all felonies and misdemeanors are determinate
in nature, and the defendant is responsible for the entire
sentence undiminished by sentence credits of any sort, except
for credits authorized by § 40-23-10] relative to pretrial jail
credit, or §§ 33-5-406 and 33-7-102 relative to mental
examinations and treatment, and prisoner sentence reduction
credits authorized by § 41-21-236.

(2) If the minimum punishment for any offense is
imprisonment in the penitentiary for one (1) year, but in the

opinion of the court the offense merits a lesser punishment,

the defendant may be sentenced to the local jail or workhouse

App. 259

for any period less than one (1) year, except as otherwise provided.
(3) If a defendant is convicted of an offerise designated as a
felony but the court imposes a sentence of less than one (1)
year in the local jail or workhouse, such defendant shall be
considered a felon but shall be sentenced as in the case of a
misdemeanor, and, therefore, shal! be entitled to sentence
credits under § 41-2-111. Upon such defendant becoming
eligible for work release, furlough, trusty status or related
rehabilitative programs as specified in § 40-35-302(d), the
defendant may be placed in such programs by the sheriff or
administrative authority having jurisdiction over the local jail

or workhouse.

§ 40-35-401. Defendants
(a) The defendant in a criminal case may appeal from the

length, range or the manner of service of the sentence

imposed by the sentencing court. The defendant may also

App. 260

appeal the imposition of consecutive sentences. An appeal
pursuant to this section shall be taken within the same time
and in the same manner as other appeals in criminal cases. If
there is an appeal of the conviction, the appeal of the sentence
shall be taken at the same time. There is no appellate review
of the sentence in a post-conviction or habeas corpus proceeding,
(b) An appeal from a sentence may be on one (1) or more
of the following grounds:
(1) The sentence was not imposed in accordance with
this chapter; or
(2) The enhancement and mitigating factors were not
weighed properly, and the sentence is excessive under the
sentencing considerations set out in § 40- 35-103.
(c) If a sentence is appealed, the appellate court may:
(1) Dismiss the appeal;

(2) Affirm, reduce, vacate or set aside the sentence imposed;

(3) Remand the case or direct the entry of an

App. 261

appropriate sentence or order; or
(4) Direct any further proceedings appropriate or
required under the circumstances.

(d) When reviewing sentencing issues raised pursuant to
subsection (a), including the granting or denial of probation
and the length of sentence, the appellate court shall conduct
a de novo review on the record of such issues. Such review

shall be conducted with a presumption that the determinations

made by the court from which the appeal 1s taken are correct.

App. 262

TENNESSEE SENTENCING GRID CHART

FELONY

MITIGATED | STANDARD MULTIPLE PERSISTENT | CAREER
CLASS Range | Range Range iti
(0 priars) (0-1 priors) (2-4 priors) (5+ priors)
; 2-40 40 - 60 60
1S - 60 years [| 13.5 years 1S -25 years - 40 years - 6 years years
REO % (20%) ) (35%) (45%) (60%)
REC years | (2.7 years) (45 - 7.5 years) | (6.8 - 14 years) | (16 27 years) (36 years)
8
8-0 years | 72 years 8 - 12 years 12-20 years 20 - W years WD years
RED ® (20%) (30%) (35%) (45%) (60%)
RED years | (1.4 years) (2.4 - 3.6 years) | (42-7 years) | (913.5 years) | (9 years)
Cc
3-tS years | 2.7 years 3-6 years 6- 10 years 10 - 15 year 15 years
REDOX ) ) (35%) (45%) (60%)
RED years | (5 years) (9 - 1.8 years) | (2.1-3.5 years} | (4.5-6.8 years) | (9 years)
o
2-12 years 1 1.8 years 2-4 years 4-6 years 6 - 12 years 12 years
REO % (20%) (30%) (35%) (45%) (60%)
RED years | (.4 years) (6-12 years) | (14-28 years) | (3.6-5.4 years) | (7.2 years)
—€
1-6 years 9 years 1-2 years 2-4 4-6 years 6 years
RED % (20%) ) (45%) (60%)
RED years (2 years) (3 - 6 years) (7-14 years) | (1.8 - 2.7 years) | (2.6 yoars)
MOTE. First Oogree Murder exchted trom chant scconding to Fist Oegros Murder statiAe,
RED » Retease Ehgibiity Date Presumptive sentence = rmeramrest in
(nga) Crmes designated Np” on reverse are inetigible tor parole
MAXIMUM FINES
FELONY A-$90.000 6 - $25,000 C - $10,000 0 - $5,000 | E- $3,000
MISDEMEANOR [A$ 8-$ 300 [C-$ BD | WGnug tines are special
contracts avaiable in 6 o
RANGE CALCULATION’
Especially Range | - Range & - Range M - Career
Standard Persistent
O priors, 10% 1 0- ? prior, 2 - 4 priors in class, | 5 on more in class, | W class BA. Bor
reduction nm depends upon higher, oF 2 down, of | higher, or 2 down C. any combination
sentence anVor | class of prior ‘prion A, if cassis | oF 2 prix A's, of a6A's,8s0 C's,
RED conviction Aas combination of 3 | of # class is A or 8,
AsmoGsé 3Asor
Cass bs Ao B combination of 4
A's nd O's or
Class is D or E. 6 of
ary
* Grech sengie course of conduct

BEST AVAILABLE COPY

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0172%3A2. Public record. Not legal advice.