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State v. Duckett10/26/2005
ent right to jury trial." State v. Gomez, 163 S.W.3d 632, 651 n.16 (Tenn. 2005). Given the dictates of Gomez, the appellant's reliance on Blakely must fail. In any event, the appellant admitted during the sentencing hearing that he had prior convictions and that he had previously violated probation. Therefore, the trial court properly enhanced the appellant's sentences based upon these admissions.
The appellant also claims that the trial court erred by refusing to apply mitigating factor (1), that the appellant's criminal conduct neither caused nor threatened serious bodily injury, to his felony sentence. The trial court refused to apply this factor based upon State v. Vanderford, 980 S.W.2d 390 (Tenn. Crim. App. 1997). In that case, this court stated that factor (1) should not be applied when a defendant is convicted of a crime involving cocaine. Id. at 407. However, our supreme court subsequently rejected a per se exclusion of this mitigating factor in cocaine possession cases. See State v. Ross, 49 S.W.3d 833, 848-49 (Tenn. 2001). The State claims that the trial court properly refused to apply factor (1) because methamphetamine laboratories are extremely dangerous and can cause serious bodily injury. However, while Lieutenant Gibson testified that the materials used to make methamphetamine can cause an explosion, there was no specific testimony as to the level of dangerousness involved with the items in this particular case. In any event, even if the trial court improperly refused to apply mitigating factor (1), the proper application of the two enhancement factors and the great weight given to them supports the appellant's six-year sentence for attempting to manufacture methamphetamine.
III. Conclusion
Based upon the record and the parties' briefs, we affirm the judgments of the trial court.
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