             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                        Remanded by Supreme Court October 15, 2007

                       STATE OF TENNESSEE v. COREY FINLEY

                         Appeal from the Criminal Court for Shelby County
                              No. 03-05912    John P. Colton, Judge



                      No. W2007-02321-CCA-RM-CD - Filed March 18, 2008


The Tennessee Supreme Court has remanded this case for further consideration of the defendant’s
sentencing in light of State v. Gomez, 239 S.W.3d 733 (Tenn., Oct. 9, 2007). Although the
defendant’s original 23-year sentence1 involved the use of enhancement factors that violated the
defendant’s Sixth Amendment right to a jury trial, we hold that the sentence of 23 years is not plain
error. Accordingly, the 23-year sentence is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , JJ., joined.

Robert Jones, District Public Defender; Jim Hale, Assistant District Public Defender (at trial); and
Phyllis Aluko, Assistant District Public Defender (on appeal), for the appellant, Corey Finley.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Atttorney
General; William L. Gibbons, District Attorney General; and Dennis Johnson, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                                   OPINION

                 At the time of sentencing in this case, September 9, 2005, the Tennessee Supreme
Court had held that, despite Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), Gomez’
sentencing was not plainly erroneous because the Tennessee Criminal Sentencing Reform Act of
1989, pursuant to which Gomez was sentenced, but did not run afoul of the Sixth Amendment right
to jury trial as interpreted in Blakely. See State v. Gomez, 163 S.W.3d 632, 654-61 (Tenn. 2005)
(Gomez I), vacated and remanded, Gomez v. Tennessee, ___ U.S. ___, 127 S. Ct. 1209 (2007). In
this court’s opinion in the present case, we affirmed the use of multiple sentencing enhancement


         1
           The trial court actually enhanced the sentence from the presumptive sentence of 20 years to 24 years, then
it mitigated the sentence by one year because the defendant “had completed some classes in the jail.”
factors, see generally T.C.A. § 40-35-114 (2003) (amended 2005), and in so doing, we affirmed the
defendant’s 23-year, Range I sentence for the Class A felony of attempt to commit first degree
murder. See State v. Corey Finley, No. W2005-02804-CCA-R3-CD (Tenn. Crim. App., Jackson,
June 7, 2007).2

                 On October 15, 2007, the Tennessee Supreme Court, however, remanded this case
to this court in the wake of its overturning Gomez I. See State v. Gomez, 239 S.W.3d 733 (Tenn.,
Oct. 9, 2007) (Gomez II).

                 Blakely held that the “statutory maximum” to which a trial court may sentence a
defendant is not the maximum sentence after application of appropriate enhancement factors, other
than the fact of a prior conviction, but the “maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant.” See Blakely at 303, 124
S.Ct. at 2537. Under Blakely, then, the “statutory maximum” sentence which may be imposed is the
presumptive sentence applicable to the conviction offense. Id. The presumptive sentence may be
exceeded without the participation of a jury only when the defendant has a prior conviction and/or
when an otherwise applicable enhancement factor was reflected in the jury’s verdict or was admitted
by the defendant.

                On January 22, 2007, the United States Supreme Court released its decision in
Cunningham v. California, ___ U.S. ___, 127 S. Ct. 856 (2007), holding that California’s sentencing
scheme did not survive Sixth Amendment scrutiny intact under Blakely. In short, the
Blakey-Cunningham-Gomez II regime controls the present case, and that regime instructs us,
“‘Other 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.’”
Blakey, 542 U.S. at 301, 124 S. Ct. at 2536 (quoting Appendi v. New Jersey, 530 U.S. 466, 490, 120
S. Ct. 2348, 2362-63 (2000)); see State v. Schiefelbein, 230 S.W.3d 88, 149 (Tenn. Crim. App.
2007), reh’g granted (Mar.7, 2007) (order on petition to rehear modifying defendant’s sentences
pursuant to Blakely and Cunningham)(“Cunningham did apply the coup de grace to the rationale
employed in Tennessee’s pre-2005 sentencing law.”).

                In the present case, although the offense was committed before Blakely was filed,
the defendant was sentenced after Blakely was filed and during the erstwhile reign of Gomez I. As
noted, the defendant did not execute a waiver as a means of electing sentencing via the Blakely-
compliant 2005 amendments to the sentencing law. Moreover, he raised the Blakely issue neither
at sentencing nor on direct appeal. Apparently, he raised the issue for the first time in his application
to our supreme court for permission to appeal following this court’s affirming the conviction and
sentence. Thus, we must determine in the present case whether the application of Blakely principles

         2
             As noted in this court’s June 7, 2007 opinion, the defendant did not waive his ex post facto protections and
elect to be sentenced under the new, Blakely-compliant sentencing scheme that became effective for offenses committed
on or after June 7, 2005, and provided that “defendants who are sentenced after June 7, 2005, for offenses committed
on or after July 1, 1982, may elect to be sentenced under the provisions of the act by executing a waiver of such
defendant’s ex post facto provisions.” See 2005 Tenn. Pub. Acts ch. 353 § 18; T.C.A.§ 40-35-102 (2006), Compiler’s
Notes.

                                                          -2-
is precluded by the usual rule that issues presented for the first time on appeal are waived. See, e.g.,
Tenn. R. App. P. 36 (“The Supreme Court, Court of Appeals, and Court of Criminal Appeals shall
grant the relief on the law and facts to which the party is entitled or the proceeding otherwise
requires and may grant any relief, including the giving of any judgment and making of any order;
provided, however, relief may not be granted in contravention of the province of the trier of fact.”);
State v. Townes, 56 S.W.3d 30, 35 (Tenn. Crim. App. 2000); State v. Johnson, 970 S.W.2d 500, 508
(Tenn. Crim .App. 1996) (“Issues raised for the first time on appeal are considered waived.”).

                 On this point, the United States Supreme Court, in adjudicating a Blakely claim, said
that not every Blakely-deficient sentence “gives rise to a Sixth Amendment violation . . . [,nor will]
every appeal . . . lead to a new sentencing hearing.” United States v. Booker, 543 U.S. 220, 268, 125
S. Ct. 738, 769 (2005). The Court elaborated, “[W]e 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.” Id.3

                 We conclude that the defendant’s failure to raise the Blakely issue prior to appeal
deprives him of plenary review, and we examine the claim via the protocol for plain error review.
Before an error is recognized as plain error, it must be “plain” and must affect a substantial right of
the accused. The term “plain” equates to “clear” or “obvious.” See United States v. Olano, 507 U.S.
725, 734, 113 S. Ct. 1770, 1777 (1993). Plain error is not error that is simply conspicuous; rather,
it is especially egregious error that strikes at the fairness, integrity, or public reputation of judicial
proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983).

                In State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994), this court defined
“substantial right” as a right of “fundamental proportions in the indictment process, a right to the
proof of every element of the offense and . . . constitutional in nature.” Id . at 639. In that case, this
court established five factors to be applied in determining whether an error is plain:

                  (a) the record must clearly establish what occurred in the trial court;

                  (b) a clear and unequivocal rule of law must have been breached;

                  (c) a substantial right of the accused must have been adversely affected;

                  (d) the accused [must not have waived] the issue for tactical reasons; and

                  (e) consideration of the error must be “necessary to do substantial justice.”




         3
           The Tennessee Supreme Court, in Gomez II, did not adjudicate whether Gomez had waived his claim to
Blakely relief; the court merely determined that Blakely compelled resentencing even if the plain-error rationale were
required. Gomez II, 239 S.W.3d at 740; see Schiefelbein, 230 S.W.3d at 150 n.1 (order on petitioner to rehear)
(conducting plenary review of Blakely claim when defendant had raised issued at sentencing hearing).

                                                         -3-
Id. at 641-42 (footnotes omitted). Our supreme court characterized the Adkisson test as a “clear and
meaningful standard” and emphasized that each of the five factors must be present before an error
qualifies as plain error. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000).

                Looking first the adequacy of the record, we have before us the trial court record,
including the presentence report and the transcripts of the trial and of the sentencing hearing, from
all of which we can glean the trial court’s bases for enhancing the defendant’s sentence from the
presumptive sentence of 20 years to 23 years. See id. § 40-35-210(c) (“The presumptive sentence
for a Class A felony shall be the midpoint of the range . . . .”). The trial court enhanced the
defendant’s sentence based upon his prior criminal record that included four convictions of criminal
trespass and one of gambling, the infliction of particularly great injuries upon the victim, the
defendant’s possession of a firearm, his lack of hesitation about committing a dangerous offense, and
his record of juvenile adjudications. See id. § 40-35-114(2), (7), (10), (11), (21) (2003). We deem
the record adequate for review on the merits.

                 The issue at stake is the defendant’s Sixth Amendment right to have a jury determine
the factors that enhance his sentence beyond the presumptive sentence of 20 years. In Gomez II, our
supreme court determined that Gomez’ sentence enhancement violated a clear and unequivocal rule
of law for purposes of noticing plain error. As in Gomez II, the Blakely claim in the present case
implicates a clear and unequivocal rule of law.

                Looking next to whether the claimed violation of the Sixth Amendment adversely
affected a substantial right of the defendant, the trial court, in addition to considering the defendant’s
record of prior convictions, utilized at least three enhancement factors that involved factual
determinations of the “type . . . prohibited by Apprendi.” Gomez II, 239 S.W.3d at 743. Thus, as
in Gomez II, the enhancement of the sentence via multiple factors adversely affected a substantial
right of the defendant.

                 “The fourth consideration for plain error review is whether the record indicates that
the [d]efendant[] waived [his] Sixth Amendment claims for tactical reasons.” Id. at 741. As in
Gomez II, “the record in this case is silent and does not establish that the [d]efendant[] made a
tactical decision to waive [his] Sixth Amendment claims.” See id. Thus, the record evinces no basis
in tactics or strategy for rejecting plain error review.

                 Finally, we examine the need for assuring substantial justice as a basis for noticing
plain error. In Gomez II, our supreme court, in examining whether substantial justice had been
availed or withheld, looked at the relative impact on sentence enhancement of Gomez’ prior criminal
record vis a vis the other, Blakely-infirm factors. The court commented that, as a reviewing appellate
court, it was authorized to “[a]ffirm, reduce, vacate or set aside the sentence imposed,” id. at 743
(quoting T.C.A. § 40-35-401(c) (2006)), suggesting that the court, if it could, would look at what
sentence it would impose using the Blakely-compliant enhancement factor of prior criminal record
to determine whether the trial court’s use of other factors deprived the defendant of “substantial
justice.” In Gomez II, however, the court determined that the record of “criminal histories [was] not
sufficiently well-developed [to allow a] determin[ation of] the proper sentences based on this
enhancement factor alone.” Id. at 743. In that situation, the Gomez II court apparently reasoned, the

                                                   -4-
appellate court could not bring an appropriate, Blakely-compliant sentence into focus, and
accordingly, the court held that, to ensure substantial justice, it must remand the case to the trial
court for a “resentencing hearing at which the trial court will have an opportunity both to determine
the full scope of the Defendants’ criminal histories and to consider whether imposition of the
maximum sentence on all convictions is appropriate.” Id. We stress that this analysis of the
propriety of the sentence length was undertaken as part of – and not after – the court’s consideration
of the need for “substantial justice” as a component of a plain-error examination.

               Thus, in the present case, we look at what sentence we might impose on the basis of
the defendant’s prior criminal record. We are not hampered, as was the Gomez II court, by an
inadequate or confusing record of the defendant’s prior convictions.

                 The defendant’s prior criminal record, although comprised of misdemeanors, is
extensive and, as the trial court noted, includes four convictions of the same offense – criminal
trespass. This record justifies an enhancement of the presumptive 20-year sentence to a level of 24
years. Considering that, the mitigating factor utilized by the trial court could mitigate the sentence
by one year, see id. § 40-35-113(13), the result would be an appropriate sentence of 23 years. As
a result, the sentencing regimen used by the trial court, though erroneous, does not equate to plain
error.

               As a consequence, the sentencing order is affirmed.

                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




                                                 -5-
