         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE

             STATE OF TENNESSEE v. MARK A. SCHIEFELBEIN

                             Criminal Court for Williamson County
                                        No. I-1102-427



                     No. M2005-00166-CCA-R3-CD - Filed March 7, 2007


                                               ORDER

                 The defendant petitions the court to rehear the portion of its sentencing determination
that addressed Cunningham v. California, ___ U.S. ___, 127 S. Ct. 856 (2007) and State v Gomez,
163 S.W.3d 632 (Tenn. 2005). The petition stated that the defendant’s counsel is “not unmindful
of the Court’s observation in footnote 33 of the Opinion that ‘should a court upon further review,
determine that the lengths of the defendant’s sentences violate the Sixth Amendment, the
configuration of consecutive sentencing [yielding an effective 36-year sentence] should be adjusted
appropriately.’” Relying upon the pendency of Gomez before the United States Supreme Court, the
defendant asked this court to revisit the Sixth Amendment right-of-jury-trial issue “after the United
States Supreme Court rules in the Gomez case.” Subsequently to the filing of the petition for
rehearing, the High Court vacated the Tennessee Supreme Court’s judgment in Gomez and remanded
the case to the latter court for reconsideration in light of Cunningham. See Gomez v. Tennessee, ___
U.S. ___, 127 S. Ct. ___ 75 U.S.L.W. 3429 (2007).

               In the opinion in the present case, we expressed the view that Gomez ran afoul of the
Sixth Amendment despite that Tennessee’s pre-2005 sentencing law arguably (1) contained no
mandatory, binding requirements and (2) utilized an indeterminate sentencing range. See State v.
Mark A. Schiefelbein, No. M2005-00166-CCA-R3-CD, slip op. at 59-60 (Tenn. Crim. App.,
Nashville, Feb. 8 2007). Nevertheless, we determined that Gomez, which premised its validation
of the pre-2005 sentencing law upon those two factors, controlled our decision-making so long as
it remained viable. Id., slip op. at 60. The United States Supreme Court’s vacated the judgment and
opinion in Gomez and remanded the case to the Tennessee Supreme Court for reconsideration in
light of Cunningham. Even though the Tennessee Supreme Court has not acted on remand, we no
longer feel constrained to follow that court’s erstwhile opinion in Gomez and conclude that
Cunningham did apply the coup de grace to the rationale employed in Tennessee’s pre-2005
sentencing law.

               Thus, it is ORDERED that the petition for rehearing is GRANTED.
                 Now, in disposing of the case upon rehearing, we hold that the trial court’s use of
statutory enhancement factors to increase the length of each of the petitioner’s sentences to the
maximum in the range violated his Sixth Amendment right to trial by jury. We premise this holding
upon the reasoning and “suspicions” expressed in our opinion, see id., slip op. at 55-61, but we can
now hold rather than merely speculate that Tennessee’s pre-2005-revision sentencing law, which
mandated an inertial, presumptive sentence, was “just as determinative as Washington’s scheme –
because the sentence was fixed by statute in the absence of fact-finding not embraced in the jury’s
verdict – and just as mandatory, as well – because the judge was not authorized to depart from the
presumptive sentence unless he or she found certain facts not embraced in the jury’s verdict,” id.,
slip op. at 60.1

              In the present case, the trial court applied a total of two enhancement factors,2 both
of which, pursuant to the Sixth Amendment, required a jury’s finding beyond a reasonable doubt.
Pursuant to Blakely and Cunningham, then, no statutory enhancement factors are applicable to
overcome the inertia of the presumptive sentence, which on each count is eight years. See T.C.A. §
40-35-112(a)(2) (2003).

                In the opinion in this case, we cautioned that our revision of the effective sentence
from 96 to 36 years was “based upon a statutory mandate to fashion a proportionate sentence” and
that if, upon further review, it should be determined that “the lengths of the defendant’s sentences
violate the Sixth Amendment, the configuration of consecutive sentencing should be adjusted
appropriately.” See Mark A. Shiefelbein, slip op. at 62 n.33. Therefore, considering that each
sentence must be modified to eight years, this court’s judgment should be further modified to impose
the sentences in indictment counts 4, 6, 10, and 11 to run consecutively to each other and the
sentences in indictment counts 2, 7, 8, and 9 to run concurrently with each other and with the
sentence in indictment count 4, thereby yielding an effective sentence of 32 years.

             Thus, it if further ORDERED that this court’s judgment in this cause shall be
amended to reflect the imposition of a sentence of eight years for each conviction and that a
combination of consecutive and concurrent sentencing as described in this order shall be
implemented.

               It is further ORDERED that the appellate costs associated with the petition to rehear
and the entry of this order and of an amended judgment shall be taxed to the State of Tennessee.


         1
          W e note that, unlike in Gomez where the defendants failed to raise the Sixth Amendment issue at the time of
sentencing, the defendant in the present case did raise the issue in a timely fashion in the trial court. See Gomez, 163
S.W .3d at 648.

         2
          The trial court enhanced each sentence for aggravated sexual battery by applying Tennessee Code Annotated
section 40-35-114(16), that the defendant abused a position of private trust and used a special skill that facilitated the
commission of the offense. In sentencing for the conviction of aggravated sexual exploitation of a minor, the trial court
also applied section 40-35-114(8) that the defendant committed the offense to gratify his desire for pleasure or sexual
excitement.

                                                           -2-
      PER CURIAM

      (Witt, Wedemeyer, JJ., Wade, P.J.,
       not participating)




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