State v. Austin4/14/2005
ssues by failing to properly raise it before the trial court. We reject this contention in conformity with prior decisions of this Court. See State v. Chester Wayne Walters, No. M2003-03019-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 1053, at *55-56 (Tenn. Crim. App., at Nashville, Nov. 30, 2004); State v. Earice Roberts, No. W2003-02668-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 1049, at *29-30 (Tenn. Crim. App., at Jackson, Nov. 23, 2004).
In Blakely, the Supreme Court, applying the rule in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), held 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." Blakely, 124 S.Ct. at 2537.
The two enhancement factors utilized in this case were neither reflected in the jury verdict or admitted by the defendant and, therefore, are in violation of Blakely. The range of punishment for a Range I defendant is fifteen to twenty-five years for a Class A felony. Tenn. Code Ann. § 40-35-112(a)(1). The presumptive sentence to be imposed is the midpoint in the range for a Class A felony, twenty years. We conclude that the two enhancement factors were inappropriately applied in light of Blakely and that the one mitigating factor is of such minimal weight that the sentence should be reduced to the presumptive sentence of twenty years.
Conclusion
Based on the foregoing reasons, we affirm the defendant's conviction for second degree murder but remand for entry of a sentence modification to twenty years.
David G. Hayes, Judge, dissenting.
The majority concludes that modification of the defendant's sentence is required in light of the Supreme Court's decision in Blakely v. Washington, 542 U.S. ______, 124 S. Ct. 2531 (2004). I must respectfully dissent.
The majority's analysis of the issue ends with the finding of Blakely error. Clearly, this was not the import of the Supreme Court's recent holding in U.S. v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005), wherein the Court opined that not "every [Blakely/Booker] appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines determining, for example, whether the issue was raised below and whether it fails the `plain-error-test.'" No such test was performed in this case. After review, I find the evidence overwhelmingly supports application of sentencing enhancement factors (3), leader in the commission of the offense, and (11), the defendant committed a crime where the risk to human life was high. In the midst of a crowd of thirty to fifty people, the defendant began firing his weapon. Additionally, although not found by the trial court, the proof supports application of enhancement factor (10), employment of a firearm. The Supreme Court has held that generally to establish "plain-error," the defendant must make a specific showing of prejudice. United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002). Interestingly, the defendant does not contest factual application of the enhancing factors. Thus, failure to perform plain-error review as contemplated by the Supreme Court grants the defendant an undeserved windfall. I find that under plain-error review, had a jury heard the sentencing proof, they would have found the above factors applicable. For this reason, no prejudice is shown. Accordingly, I would affirm the sentence imposed by the trial court.
David G. Hayes, Judge
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