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State v. Marshall6/17/2005
00 and threatened to shoot her if he didn't get it. On the scene, contact was made with Paul Williams. He was with another male identified as [the defendant]. Williams was taken into custody for auto theft.
When officers removed [the defendant] from the vehicle, to check for weapons, a small baggie containing what appeared to be crack cocaine was found, along with a baggie containing a leafy substance, possibly marijuana. [The defendant] was taken into custody and the vehicle was seized.
Under these circumstances, it would appear that the defendant was entitled to the application of this factor. In our view, however, this factor is entitled to little weight. Further, the record supports the trial court's determination that enhancement factor (2) was entitled to great weight. The presentence report establishes that the defendant has a lengthy criminal history including two convictions for attempted rape, two convictions for sexual battery, three convictions for possession of cocaine, and one conviction for driving under the influence . In consequence, the application of mitigating factor (1) does not warrant a modification of the sentence. See State v. Robert Wilson, No. 03C01-9209-CR-00305 (Tenn. Crim. App., at Knoxville, Mar. 22, 1993) (holding that "the existence of mitigating factors does not necessarily call for a reduced sentence if they are sufficiently outweighed by existing enhancement factors"); see also State v. Jeffrey Allen Partin, No. 01C01-9202-CC-00054 (Tenn. Crim. App., at Nashville, Sept. 11, 1992).
Finally, the defendant asserts that the application of enhancement factor (9) violates the requirements of Blakely v. Washington, 524 U.S. ___, 124 S.Ct. 2351 (2004). The state submits that the defendant has waived any challenge to his sentence under Blakely by failing to present it in the trial court. In the alternative, the state contends that the erroneous application of enhancement factor (9) was harmless beyond a reasonable doubt.
This court had previously held that the United States Supreme Court's opinion in Blakely called into question the continuing validity of our current sentencing scheme. In that case, the Court, applying the rule in Apprendi v. New Jersey, 566 U.S. 466, 490 (2000), struck down a provision of the Washington sentencing guidelines that permitted a trial judge to impose an "exceptional sentence" upon the finding of certain statutorily enumerated enhancement factors. The Court observed that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 2537. Finally, the Court concluded that "every defendant has a right to insist that the prosecutor prove to a jury [beyond a reasonable doubt] all facts legally essential to the punishment." Id. at 2543.
Recently, however, in State v. Edwin Gomez and Jonathan S. Londono, No. M2002-01209-SC-R11-CD, slip op. at 25 (Tenn. April 15, 2005), a majority of our supreme court held that " nlike 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." It is our view that the holding in Gomez does not permit any relief.
Accordingly, the judgment of the trial court is affirmed.
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