         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 27, 2006

               STATE OF TENNESSEE v. TIMOTHY R. BOUTON

                      Appeal from the Hamilton County Criminal Court
                           No. 251419   Rebecca J. Stern, Judge



                     No. E2005-02294-CCA-R3-CD Filed August 17, 2006


The Defendant, Timothy R. Bouton, pled guilty to vehicular manslaughter and reckless
endangerment and was sentenced to ten years in the Tennessee Department of Correction. On
appeal, the Defendant contends that the trial court erred: (1) when it failed to have him execute an
ex post factor waiver with regard to the 2005 Sentencing Act; (2) in its application of enhancement
and mitigating factors; and (3) when it denied him probation or other alternative sentencing. After
reviewing the record and applicable authorities, we conclude that the trial court erred when it failed
to have the Defendant execute an ex post factor waiver with regard to the 2005 Sentencing Act.
Therefore, we reverse the case and remand it for a new sentencing hearing.

      Tenn. R. App. 3 Appeal as of Right; Judgments of the Criminal Court Reversed
                                      and Remanded

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JAMES CURWOOD WITT , JR., JJ., joined.

Donna Robinson Miller, Chattanooga, Tennessee (on appeal) and Christian J. Coder, Chattanooga,
Tennessee (at trial) for the appellant, Timothy R. Bouton.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
William H. Cox III, District Attorney General; and Jay Woods, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

         On June 29, 2005, the Defendant pled guilty to vehicular manslaughter and reckless
endangerment. During the hearing on the guilty plea, the State submitted that, had the case gone to
trial, the following facts would have been established:
       [O]n August 19, 2003, the [D]efendant was following his wife on Highway 153. His
       wife changed lanes, passing a slow moving truck, and then that truck . . . changed
       lanes in a sense cutting her off. She had to slow quickly to avoid hitting that truck.
       The [D]efendant was not able to stop. He tried to dodge his wife’s vehicle and
       clipped it instead and he lost control. Both cars crossed the median and hit a van
       driven by Edna Williams. The [D]efendant’s car hit Ms. Williams’ van along the
       side and the other vehicle hit - - his wife’s vehicle hit the van nearly head on. Ms.
       Williams’ van came to rest in a driveway and caught fire. Two deputies tried to
       rescue her from her vehicle. They were not successful and suffered burns in the
       process. Ms. Williams died in the accident, in the fire.

                According to hospital records the [D]efendant’s blood alcohol level was .156
       at the time of the wreck.

       The trial court sentenced the Defendant, a Range I offender, to ten years in prison for
vehicular homicide and to one year in prison for reckless endangerment, and it ordered that the
Defendant’s sentences be served concurrently.

                                            II. Analysis

       On appeal, the Defendant asserts that the trial court erred: (1) when it failed to have him
execute an ex post factor waiver with regard to the 2005 Sentencing Act; (2) in its application of
enhancement and mitigating factors; and (3) when it denied him probation or other alternative
sentencing.

                                      Ex Post Facto Waiver

        The Defendant contends that the trial court erred when it failed to either have the Defendant
execute an ex post facto waiver with regard to the new sentencing act, or, alternatively, apply the
prior law. It appears from the record that, after a bench conference, the Assistant District Attorney
stated “[w]e’re going to go under the new sentencing guidelines,” referring to the 2005 amendments
to the Sentencing Act. The State does not address this contention.

        Effective June 7, 2005, the Sentencing Act was amended in response to a United States
Supreme Court case Blakely v. Washington, 542 U.S. 296 (2004). The amendment, among other
things, removed the presumptive sentence language from the Act and mandated that the trial “court
shall impose a sentence within the range of punishment . . . .” See Tenn. Code Ann. § 40-35-210(c)
(Supp. 2005); cf. Tenn. Code Ann. § 40-35-210(c) (2003). In the “Complier’s Notes” section to this
amendment, it states:

       Acts 2005, ch. 353, § 18 provided that the act shall apply to sentencing for criminal
       offenses committed on or after June 7, 2005. Offenses committed prior to June 7,
       2005, shall be governed by prior law, which shall apply in all respects. However, for


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       defendants who are sentenced after June 7, 2005, for offenses committed on or after
       July 1, 1982, the defendant may elect to be sentenced under the provisions of the act
       by executing a waiver of such defendant’s ex post facto protections. Upon executing
       such a waiver, all provisions of the act shall apply to the defendant.

Tenn. Code Ann. § 40-35-210 (Supp. 2005) Complier’s Notes.

        In the case under submission, the offenses to which the Defendant pled guilty occurred on
August 19, 2003, and the Defendant was sentenced on August 29, 2005. Therefore the Defendant’s
sentences are governed by the prior law unless the Defendant elects to be sentenced under the
provisions of the new act, enacted June 7, 2005, by executing a waiver of his ex post facto
protections. No such waiver appears in the record. Accordingly, we are constrained to remand this
case for resentencing under the old law or for a properly executed waiver of ex post facto
protections. Upon remand, we encourage the trial court to articulate in the record any applicable
enhancement and mitigating factors, and other factual bases, upon which it relies.

                                         III. Conclusion

         In accordance with the foregoing, we conclude that this case must be reversed and remanded
to the trial court for resentencing.

                                                      ____________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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