         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 2, 2004

                  STATE OF TENNESSEE v. CARLOS EDDINGS

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 01-03777    W. Otis Higgs, Jr., Judge



                    No. W2003-02255-CCA-R3-CD - Filed October 8, 2004




DAVID G. HAYES, Judge, concurring in part; dissenting in part.


         The majority concludes that modification of the defendant’s ten-year 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 now waived because
the defendant did not object at trial to what he now contends is a constitutionally invalid sentencing
scheme. Tenn. R. App. P. 36(a). In Blakely, the Supreme Court did not pronounce a new rule of
law. Rather, it only provided an explanation of the rule previously expressed in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), with regard to the term “statutory maximum.” Clearly,
the defendant could have raised this issue under Apprendi at the trial level as did the defendant
Blakely; however, this was not done. 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 the defendant’s
claim of right to a trial and finding by a jury on a fact used to enhance the defendant’s sentence was
forfeited because it was not raised at trial. Moreover, the Supreme Court has held

       (1) the Apprendi rule is not a substantive rule that alters the range of conduct or the
       class of persons that the law punishes; rather, it is a procedural rule that affects only
       the manner of determining the defendant’s culpability, and (2) the Apprendi rule is
       not a “watershed rule of criminal procedure” that implicates the fundamental fairness
       and accuracy of criminal proceedings.

People v. George Carl Sample, No. C044445 (Cal. Ct. App. Sept. 13, 2004) (quoting Schriro v.
Summerlin, __ U.S. __, 124 S. Ct. 2519, 2523-24 (2004)). Accordingly, I find the Blakely issue
waived.

        Because the issue is waived, it is reviewable only under the discretionary authority of plain
error. Tenn. R. Crim. P. 52(b). Rule 52(b) provides, “[a]n error which has affected the substantial
rights of an accused may be noticed at any time, even though not raised in the motion for a new trial
or assigned as error on appeal, in the discretion of the appellate court where necessary to do
substantial justice.” This court is permitted to correct an error not raised before the trial court only
when (1) the lower record is clear, (2) a clear rule of law has been breached, (3) a substantial right
has been affected, (4) the waiver was non-tactical, and (5) consideration of the error is necessary to
do substantial justice. State v. Smith, 24 S.W.3d 282-83 (Tenn. 2000) (adopting the test articulated
by this court in State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994)). The asserted
“‘plain error’ must [have been] of such a great magnitude that it probably changed the outcome of
the trial.” Adkisson, 899 S.W.2d at 642.

         First, assuming that the error is plain, my review of the record fails to demonstrate that the
fifth factor of plain error analysis is satisfied. The proof at trial established beyond a reasonable
doubt that the defendant treated the victim with exceptional cruelty during the commission of the
offense. The victim was choked, her mouth and face were wrapped with duct tape, which made
breathing almost impossible, she was repeatedly called a “bitch,” she was dragged from her chair to
the safe, she was placed on her knees with a gun at her head, and she was repeatedly threatened with
death. As a result of the physical abuse and personal indignities, she suffered a heart attack. The
fact that the victim was treated with exceptional cruelty is not contested. Clearly these facts would
permit a rational trier of fact to find that the victim was treated with exceptional cruelty. In view of
these circumstances, the defendant has failed to establish that consideration of the error is “necessary
to do substantial justice” or that the alleged error changed the outcome of the sentencing decision.
See United States v. Stephen Savarese, No. 04-1009 (1st D. Sept. 22, 2004).

               The reasoning of the United States Supreme Court in Cotton is similar to, but
       not identical with, harmless error analysis. The court previously had explained that
       invariably to refuse to consider errors when no objection was made would be out of
       harmony with rules of fundamental justice. Accordingly, if the defendant points to
       plain error that affected substantial rights, then an appellate court has discretion to
       correct the error. Normally, although perhaps not in every case, the defendant must
       make a specific showing of prejudice to satisfy the “affecting substantial rights”
       prong of Rule 52(b). But such a showing is not itself sufficient. An appellate court
       should not correct the error unless it “seriously affect[s] the fairness, integrity or
       public reputation of judicial proceedings.”

               It was this latter test the Supreme Court applied in Cotton, concluding that
       when the defendants did not object in the district court to the sentencing proceeding
       and did not attempt to dispute or controvert the evidence in support of a sentencing
       factor that justified the sentence imposed, and the evidence of the factor was
       overwhelming, then forfeiture applies and reversal on appeal is wholly unwarranted.

George Carl Sample, No. C044445 (internal citations omitted).




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        I conclude that application of the exceptional cruelty factor, in the absence of any mitigating
factors, is sufficient to enhance the defendant’s sentence by two years. For these reasons, I would
affirm the defendant’s sentence of ten years. In all other respects, I join with the majority.




                                                               ______________________________
                                                               David G. Hayes, Judge




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