         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON

                  STATE OF TENNESSEE v. GUSTAVO CHAVEZ

                   Direct Appeal from the Circuit Court for Decatur County
                          No. 03-CR-140 C. Creed McGinley, Judge



                    No. W2004-01154-CCA-R3-CD - Filed March 17, 2005




DAVID G. HAYES, Judge, dissenting.


       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 now waived because
the defendant did not object at trial to what he now contends is a constitutionally invalid sentencing
scheme. See Tenn. R. App. P. 36(a). Our rules of appellate procedure provide that an issue may not
be raised for the first time on appeal. Tenn. R. App. P. 36(a). I see no valid reason to carve out an
Apprendi/Blakely exception to this established rule. 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. Similarly, I find the Supreme Court’s ruling
in Cotton applicable to the review of Blakely claims raised on appeal in this State.

        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). Clearly, this was the import of the
Supreme Court’s recent holding in U. S. v. Booker, 543 U. S. _____, 125 S. Ct. 738, 769 (2005),
wherein it 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.” The
Supreme Court’s expectations in Booker are ignored by the majority as the “plain-error test” is not
employed.

        The record supports application of enhancing factor (16), that the defendant abused a position
of trust. The majority rejects factor (16), not because it does not exist, but because it violates
Blakely. Indeed, on appeal, the defendant does not contest the fact that the mother of the victim, the
victim, and the defendant shared the same home, and the defendant served as a “parental figure” to
the five-year-old victim. I find, however, under plain-error review, that had a jury heard the proof
with regard to factor (16), its verdict would have been the same. Accordingly, the defendant has
failed to establish prejudice in order to satisfy the “affecting substantial rights” requirement of Rule
52(b). See Cotton, 535 U.S. at 1786, 122 S. Ct. at 633 (affirming enhancement of the defendant’s
sentence following plain error analysis notwithstanding presence of Apprendi error). The distinction
between harmless error analysis and error assigned on appeal cannot be overlooked. See U. S. v.
Monroe, 353 F.3d 1346 (11th Cir. 2003). It is the defendant, not the State, who has the burden of
establishing how the Blakely error changed the outcome of the sentencing decision. See id. Clearly,
the defendant has not met this burden. For these reasons, I would affirm the trial court’s imposition
of the ten-year sentence.



                                                        _____________________________
                                                        David G. Hayes, Judge




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