         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs August 18, 2004

                  STATE OF TENNESSEE v. ERIC THOMAS NOE

                  Direct Appeal from the Criminal Court for McMinn County
                             No. 03-231 R. Steven Bebb, Judge


                     No. E2004-00550-CCA-R3-CD - Filed January 7, 2005


Hayes, David G., J., dissenting, with regard to sentencing modification.

       The majority concludes that modification of the Defendant’s sentence is required in light of
Blakely v. Washington, 542 U.S.___, 124 S. Ct. 2531 (2004). I must respectfully dissent.

        Any sentencing challenge available to the Defendant under Blakely is waived because the
Defendant did not object at the sentencing hearing to what he now contends is a constitutionally
invalid sentencing scheme. See Tenn. R. App. P. 36(a). I see no valid reason to exempt an
Apprendi/Blakely claim from established rules of appellate procedure. In United States v. Cotton,
535 U.S. 625, 631-34, 122 S. Ct. 1781, 1785-87 (2002), the Supreme Court held, after its decision
in Apprendi, that a defendant’s claim of right to a trial and finding by a jury on a fact used to enhance
his sentence was forfeited because it was not raised at trial. This is precisely the issue before us in
this case. Review and modification of the Defendant’s sentence for the first time on appeal not only
has the effect of removing the trial court as the primary sentencing court, it also denies the State the
opportunity to be heard in the sentencing decision. Because the issue is waived, it is reviewable on
appeal only under the discretionary authority of plain error. See Tenn. R. Crim. P. 52(b).

        An appellate court is permitted to correct plain error, or in this case Blakely error, only when
the error is “of such a great magnitude that it probably changed the outcome of the trial.” State v.
Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994). The record supports application of
enhancing factors (2), prior criminal history, and (9), previous history of unwillingness to comply
with conditions of release. These factors were not contested at sentencing, nor are they controverted
on appeal. The majority rejects factor (9), not because it does not exist, but because it violates
Blakely. I find, however, under plain-error review, that had a jury heard the uncontested proof with
regard to factor (9), its verdict would have been the same. Accordingly, the Defendant has failed to
establish prejudice. It is the Defendant, not the State, who has the burden of establishing how the
Blakely error changed the outcome of the sentencing decision.

        For these reasons, I would affirm the Defendant’s sentence of six years.


                                                               ________________________________
                                                               David G. Hayes, Judge
