        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   July 20, 2010 Session

              STATE OF TENNESSEE v. JONATHAN LONDONO

                  Appeal from the Criminal Court for Davidson County
              No. 2001-A-280 & 2000-B-1070 Cheryl A. Blackburn, Judge



                 No. M2009-01745-CCA-R3-CD - Filed February 24, 2011


Appellant, Jonathan Londono, was convicted by a Davidson County jury of conspiracy to
commit aggravated robbery, facilitation of felony murder, facilitation of especially
aggravated robbery and facilitation of aggravated robbery. He was sentenced to an effective
sentence of forty-nine years. Appellant was resentenced after an unsuccessful appeal to this
Court, an unsuccessful appeal to the Tennessee Supreme Court, a remand from the United
States Supreme Court to the Tennessee Supreme Court, and a remand from the Tennessee
Supreme Court to the trial court for resentencing. As a result, Appellant’s sentence was
enhanced based upon one enhancing factor, that he had a previous history of criminal
convictions and criminal behavior. The trial court sentenced Appellant to an effective
sentence of forty-nine years. Appellant appeals his sentence arguing that the trial court erred
in basing the application of the enhancing factor on convictions that occurred in the time
between the commission of the offenses in question and the imposition of his sentence for
the offenses in question. We determine that based upon prior case law in this State the trial
court did not err. Therefore, we affirm the judgments of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are
                                     Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which A LAN E. G LENN and R OBERT
W. W EDEMEYER, JJ., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Jonathan Londono.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Victor S. Johnson, District Attorney General, and Bret Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                   Factual Background

                                        Guilty Plea

        On March 16, 1999, a jewelry store at the Green Hills Mall in Nashville had a special
showing of 100 to 110 Rolex watches. State v. Edwin Gomez, et. al., No. M2002-01209-
CCA-R3-CD, 2004 WL 305787, at *1 (Tenn. Crim. App., at Nashville, Feb. 18, 2004), appl.
perm. app. granted, (Tenn. Oct. 4, 2004). The next morning, on March 17, Appellant and
his co-defendants attacked two security guards who were removing the watches from the
jewelry store. One of the guards, Eugene Nagele, was struck in the head and lost
consciousness. The other guard, Roy Rogers, was shot and died twenty-one days later as a
result of his gunshot wound. Id. The watches were later sold for $230,000 in Miami. Id. at
*4.

       Appellant was indicted for conspiracy to commit aggravated robbery, felony murder
of Roy Rogers, especially aggravated robbery of Roy Rogers, and aggravated robbery of
Eugene Nagele. Id. At the conclusion of trial, a jury convicted Appellant of conspiracy to
commit aggravated robbery, facilitation of felony murder, facilitation of especially
aggravated robbery and facilitation of aggravated robbery. The trial court held a sentencing
hearing and sentenced Appellant to an effective sentence of forty-nine years. Id.

       Appellant and his co-defendant, Edwin Gomez, appealed both their convictions and
sentences to this Court. Id. at *1. We affirmed the judgments of the trial court. Id.
Appellant and his co-defendant requested permission to appeal to our supreme court and
were granted permission to appeal. State v. Gomez, 163 S.W.3d 632, 640 (Tenn. 2005).

       The resulting opinion, State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), became a
pivotal case in our appellate court system’s analysis of sentencing issues in light of the
United States Supreme Court’s opinion in Blakely v. Washington, 542 U.S. 296, 124 S. Ct.
2531 (2004). The Tennessee Supreme Court determined that despite the ability of trial
judges to set sentences above the presumptive sentence based on the finding of enhancement
factors neither found by a jury nor admitted by a defendant, Tennessee’s sentencing structure
does not violate the Sixth Amendment and does not conflict with Blakely because “the
Reform Act [of Tennessee] authorizes a discretionary, non-mandatory sentencing procedure
and requires trial judges to consider the principles of sentencing and to engage in a

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qualitative analysis of enhancement and mitigating factors . . . all of which serve to guide
trial judges in exercising their discretion to select an appropriate sentence within the range
set by the Legislature.” Gomez, 163 S.W.3d at 661.

       In a subsequent opinion, Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856
(2007), the United States Supreme Court again addressed sentencing issues with regard to
the right to a trial by jury. The decision in Cunningham called into question our supreme
court’s decision in Gomez. Shortly thereafter, the United States Supreme Court vacated the
judgment in Gomez and remanded the case to Tennessee Supreme Court in light of
Cunningham. Gomez v. Tennessee, 549 U.S. 1190, 127 S. Ct. 1209 (2007). On remand from
the United States Supreme Court, our supreme court vacated Appellant’s sentence and
remanded to the trial court for resentencing. State v. Gomez, 239 S.W.3d 733, 742 (Tenn.
2007). The trial court’s judgments were affirmed in all other respects. Id.

       On May 26, 2009, the trial court held a resentencing hearing to determine Appellant’s
sentence. At the time of Appellant’s resentencing a new sentencing law was in effect that
was enacted as a response to Blakely. The new sentencing law gave Appellant the ability to
choose to be sentenced under the previous law or the new law. Appellant chose to be
sentenced under the new law. The trial court determined that Appellant was a Range I,
Standard Offender. The court applied one enhancing factor, that the defendant has a
previous history of criminal convictions or criminal behavior. The trial court concluded that
no mitigating factors applied. The trial court sentenced Appellant to the maximum in the
range for each conviction, six years for conspiracy to commit aggravated robbery, twenty-
five years for facilitation of felony murder, twelve years for facilitation of especially
aggravated robbery, and six years for facilitation of aggravated robbery. The trial court
ordered that the sentences be served consecutively. The trial court also ordered that these
sentences be served consecutively to sentences Appellant was serving in the federal system
and in Texas. Appellant filed a timely notice of appeal.

                                        ANALYSIS

      On appeal, Appellant argues that the trial court erred in applying the enhancing factor
because the two prior criminal convictions used to support the enhancing factor were
committed after the offenses at issue in the case at hand.

        Before the release of Blakely, in order to determine a defendant’s sentence, a trial
court started at the presumptive sentence, enhanced the sentence within the range for existing
enhancement factors, and then reduced the sentence within the range for existing mitigating
factors in accordance with Tennessee Code Annotated section 40-35-210(e). No particular
weight for each factor was prescribed by the statute; the weight given to each factor was left

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to the discretion of the trial court as long as it comports with the sentencing principles and
purposes of our Code and as long as its findings are supported by the record. See State v.
Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995). In Blakely, the Supreme Court
determined that the “statutory maximum” sentence for Apprendi1 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.” 542 U.S. at 303, 124 S. Ct. at 2537. In other words:

        [T]he relevant “statutory maximum” is not the maximum sentence a judge may
        impose after finding additional facts, but the maximum he may impose without
        any additional findings. When a judge inflicts punishment that the jury’s
        verdict alone does not allow, the jury has not found all the facts “which the law
        makes essential to the punishment,” and the judge exceeds his proper
        authority.

Id.

       In response to the United States Supreme Court’s decision in Blakely v. Washington,
542 U.S. 296 (2004), the Tennessee Legislature amended the Tennessee Code Annotated
section 40-35-210 so that Class A felonies would now have a presumptive sentence
beginning at the minimum of the sentencing range. Compare T.C.A. § 40-35-210(c) (2003)
with T.C.A. § 40-35-210(c) (2006).2 In addition, the amended statute stated that the trial
court was not bound by the sentencing guidelines concerning the minimum sentence within
a range and the application of enhancement and mitigating factors to increase the sentence
above the minimum and that the guidelines were advisory. Id. This amendment became
effective on June 7, 2005. The legislature also provided that this amendment would apply
to defendants who committed a criminal offense on or after June 7, 2005. Acts 2005, ch.


        1
           In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court held that,
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at
490. In Ring v. Arizona, 536 U.S. 584, 587 (2002), the Court applied Apprendi to hold that because Arizona
conditioned eligibility for the death penalty upon the presence of an aggravating fact that was not an element
of first degree murder, the Sixth Amendment guaranteed the defendant a right to a jury determination of that
fact.

        2
          This new act as amended by the legislature in 2005 has been cited with approval by the United
States Supreme Court. Cunningham v. California, 549 U.S. 270, 294, 127 S. Ct. 856, 871 n.18 (2007) In
Cunningham, the Supreme Court revisited issues addressed in the Blakely line of cases. The Supreme Court
stated, with approval, that “[o]ther States have chosen to permit judges genuinely ‘to exercise broad
discretion . . . within a statutory range,’ [FN18] which ‘everyone agrees,’ encounters no Sixth Amendment
shoal.” Id. (quoting United States v. Booker, 543 U.S.220, 233 (2005)).

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353, § 18. In addition, if a defendant committed a criminal offense on or after July 1, 1982
and was sentenced after June 7, 2005, such defendant can elect to be sentenced under these
provisions by executing a waiver of their ex post facto protections. Id. As stated above,
Appellant chose to be sentenced under the prior sentencing law.

       “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo
review on the record of such issues. Such review shall be conducted with a presumption that
the determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s
action is conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider the
defendant’s potential for rehabilitation, the trial and sentencing hearing evidence, the pre-
sentence report, the sentencing principles, sentencing alternative arguments, the nature and
character of the offense, the enhancing and mitigating factors, and the defendant’s
statements. T.C.A. §§ 40-35-103(5), -210(b); Ashby, 823 S.W.2d at 169. We are to also
recognize that the defendant bears “the burden of demonstrating that the sentence is
improper.” Ashby, 823 S.W.2d at 169.

       In balancing these concerns, a trial court should start at the presumptive sentence,
enhance the sentence within the range for existing enhancement factors, and then reduce the
sentence within the range for existing mitigating factors. T.C.A. § 40-35-210(e). No
particular weight for each factor is prescribed by the statute. See Santiago, 914 S.W.2d at
125. The weight given to each factor is left to the discretion of the trial court as long as it
comports with the sentencing principles and purposes of our code and as long as its findings
are supported by the record. Id.

       The trial court made the following findings when applying the enhancing factor in
question:


       It is clear from the presentence report as well as the last hearing that he was
       convicted of manslaughter out of Texas. What is interesting about the date of
       that offense is the offense was May the 8th of 1999. And if you look at – and
       the date of this offense, the one we’re here about that happened at the Green
       Hills Mall, it had occurred on March the 17th of 1999. So before he was – so
       he goes to Texas and picks up this manslaughter conviction. And then on 4-24
       of 1999 is when we have the theft from the shipment, which is also a felony.
       And, again, I’m going to use those facts. But though those offenses occurred
       after the offense in this case it’s very instructive that he goes from here, being

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       involved in an incredibly serious offense that took a person’s life, and then
       goes and is convicted of manslaughter and then the theft from an institution.
       So I’m going to use those. There are other things that are in his history, but we
       do not know what the result of that is. But he also previously has admitted
       using cocaine and marijuana. So that factor is borne out by the record. I can’t
       use any of the other factors because they were not found by the jury.


       This Court has previously held that this enhancing factor applies when the “criminal
behavior” occurs after the convicted offense but prior to sentencing. See State v. Robert
Arthur White, No. 02C01-9601-CC-00009, 1997 WL 81653 (Tenn. Crim. App., at Jackson,
February 27, 1997); State v. Shawn Phillip Yeager, No. 02C01-9502-CC-00052, 1986 WL
89386 (Tenn. Crim. App., at Jackson, Feb. 29, 1996). The facts in State v. Robert Arthur
White, No. 02C01-9601-CC-00009, 1997 WL 81653 (Tenn. Crim. App., at Jackson, February
27, 1997) and State v. Shawn Phillip Yeager, No. 02C01-9502-CC-00052, 1986 WL 89386
(Tenn. Crim. App., at Jackson, Feb. 29, 1996), are very similar to the facts in the case at
hand. In Robert Arthur White and Shawn Phillip Yeager, the defendants committed the
offenses in question and were not convicted of the offenses in question until they had
committed offenses in other states. This Court upheld the application of the enhancing factor
of previous criminal behavior based upon the offenses committed in the other states between
the commission of the offenses in question and the imposition of the sentences for the
offenses in question. See Robert Arthur White, 1997 WL 81653, at * 4-5; Shawn Phillip
Yeager, 1986 WL 89386, at *1.

        The facts are similar in the case at hand. Here, Appellant committed the offenses in
question. He later committed manslaughter and theft. He was subsequently tried and
convicted for these offenses in question. The trial court applied the enhancing factor based
upon the offenses which occurred after the commission of the offenses in this case but prior
to the imposition of sentences for the instant offenses. Therefore, we conclude that the trial
court did not err in basing the imposition of the enhancing factor on the convictions for
manslaughter and theft from an institution.

       Also, we note that Appellant makes a cursory statement that his sentences should not
be enhanced to the maximum of the range because in his prior sentencing hearing his
sentences were enhanced to the maximum of the range based upon additional enhancing
factors the application of which were determined to be contrary to Blakely. As stated above,
the weight of the factors is left in the discretion of the trial court as long as it comports with
the sentencing principles. Santiago, 914 S.W.2d at 125. We agree with the trial court that
Appellant participated in the planning and commission of a very dangerous and violent crime



                                               -6-
that resulted in the death of an individual. We conclude that the enhancing of the sentences
to the maximum in the range comports with the sentencing principles set out in the statute.

       Therefore, we affirm the judgments of the trial court.

                                     CONCLUSION

       For the foregoing reasons, we affirm the judgments of the trial court.


                                          ___________________________________
                                          JERRY L. SMITH, JUDGE




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