         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 3, 2004

                 STATE OF TENNESSEE v. CEDRIC ANTHONY

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 02-01482    Chris Craft, Judge


                 No. W2004-00255-CCA-MR3-CD - Filed December 10, 2004


Defendant, Cedric Anthony, was indicted in count one for the aggravated robbery of Teresa Stegall,
in count two for the aggravated robbery of Regina Davis, in count three for the aggravated robbery
of Antoinette Hubbard, and in count four for the aggravated robbery of Leslie Ross. Following a jury
trial, Defendant was convicted of all four counts of aggravated robbery and sentenced to eight years
for each offense. The trial court ordered Defendant’s sentences for counts two, three, and four to be
served concurrently, and his sentence for count one to be served consecutively to the other counts
for an effective sentence of sixteen years. Defendant does not appeal the sufficiency of the
convicting evidence but argues that his aggravated robbery convictions in counts three and four
violate the principles of double jeopardy. Defendant does not argue on appeal that his conviction in
count two of the aggravated robbery of Ms. Davis raises double jeopardy concerns. Defendant also
argues that the trial court erred in ordering his sentence for count one, aggravated robbery, to be
served consecutively to the other sentences. Since the filing of the briefs, Defendant has also asked
us to consider the impact of the ruling in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531
(2004) on his sentences. After a thorough review of the record, we affirm Defendant’s convictions
for aggravated robbery in counts one and two. Because the facts and circumstances supporting the
offenses in counts one, three, and four support only one conviction for aggravated robbery, we
modify Defendant’s convictions for aggravated robbery in counts three and four to aggravated
assault. We remand Defendant’s convictions in counts three and four for resentencing during which
the trial court may only consider Defendant’s prior convictions as an enhancement factor under
Blakely. We affirm Defendant’s convictions for aggravated robbery in counts one and two, and
affirm the trial court’s imposition of consecutive sentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed as Modified;
         Remanded for Resentencing for Convictions of Counts Three and Four

THOMAS T. WOODALL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
NORMA MCGEE OGLE, J., joined.

Robert Wilson Jones, District Public Defender; Garland Erguden, Assistant Public Defender; Trent
Hall, Assistant Public Defender; and Cathy Hailey, Assistant Public Defender, for the appellant,
Cedric Anthony.
Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Glen Baity, Assistant District Attorney General,
for the appellee, the State of Tennessee.

                                              OPINION

         Teresa Stegall was working as a cashier at a Big Star grocery store in Memphis, Tennessee,
when two African-American men entered the store around 5:00 p.m. One of the men approached
Ms. Stegall, pointed a gun at her, and ordered her to open her cash register. The man grabbed some
money from the register. He then removed cash from the cash register located next to Ms. Stegall’s
which was operated by Antoinette Hubbard. The man also took money from a customer whom Ms.
Stegall had been assisting prior to the robbery. Ms. Stegall said that a second man approached Leslie
Ross, who was working at the store’s customer service desk, and pointed a gun at her. The customer
service desk was located about fifteen to twenty feet away from Ms. Stegall’s cash register. The two
perpetrators left the store through the front door. One of the men fired two gunshots at the door as
he left.

        Ms. Stegall said that the two men were in their twenties. The man who robbed Ms. Stegall
was tall and wore dark jeans, a striped shirt, and a bandana over his face. Ms. Stegall said that the
man also wore a hat so that only his eyes were visible. Ms. Stegall said that she could not identify
Defendant as the man who robbed her.

         Regina Davis testified that she was paying for her groceries at Ms. Stegall’s cash register
when the two men entered the store. One of the men turned toward the customer service desk, and
the other came to the check-out area and demanded that Ms. Stegall give him the cash in her cash
register. Ms. Davis described the man who robbed her as in his early to mid-twenties, thin, and
around five feet nine inches tall. Ms. Davis said that the perpetrator wore a striped polo shirt, a beige
paisley bandana over his face, and carried an automatic gun. The man grabbed some money out of
Ms. Davis’ hand and demanded her purse. Ms. Davis slid her purse over the counter, and the man
removed some cash. Ms. Davis said that the other man wore dark clothes and a ski mask. Both men
left by the front door. One of the men fired two shots at the door as he left.

        Antoinette Hubbard was working at the second cash register. The man who robbed her cash
register was carrying a weapon, but Ms. Hubbard could not identify the type of gun. Ms. Hubbard
said that she did not think the man who robbed her was wearing a mask, but agreed that one of the
men fired two gunshots at the store’s front door. Ms. Hubbard said that the robber did not take any
of her personal belongings. She could not identify Defendant as the man who robbed her cash
register.

        Leslie Ross said that one of the men approached her customer service counter and demanded
that she open the cash register that was behind the counter. After she opened the cash drawer, the
man grabbed some money. He was carrying a gun with a silver barrel and black handle. The


                                                  -2-
perpetrator wore latex gloves. Ms. Ross said that the man who robbed Ms. Stegall’s and Ms.
Hubbard’s cash registers was wearing a horizontally striped shirt. Ms. Ross said that none of her
personal belongings were taken during the robbery. Ms. Ross also heard two gunshots after the men
had left the store.

        William Warren had just entered the grocery store when he saw an armed man at one of the
cash registers. He turned around and left the store and got back into a friend’s truck. When his
friend drove around to the front of the store, Mr. Warren saw two men running down the street. Mr.
Warren and his friend followed the men until they lost sight of them. When Mr. Warren got out of
the truck, he spotted the two men again and yelled at them. Mr. Warren said that the men threw
some items in the bushes near a house on Gibbons Place.

       John Chevalier, an officer with the Memphis Police Department, responded to the call about
the robbery at Big Star. When he arrived at the store, some bystanders pointed out two men running
away from the grocery store. Officer Chevalier chased the men until they were apprehended.

        Sergeant Joe Edward Stark said that he dusted the grocery store’s front door for fingerprints,
but did not find any. Two .22 caliber shell casings were discovered just outside the front door.
Police officers had retrieved two guns and a black hat with holes cut out for the wearer’s eyes by the
time Sergeant Stark arrived at the house on Gibbons Place. The police later found a long-sleeved,
multi-colored shirt and a bandana hidden in a barbeque grill behind a house on Sellers Street. The
police also found a check made out to “Big Star,” various sales receipts with the name of the store,
some cash and a pair of latex gloves in the vicinity of the Sellers Street house.

         Sergeant Walter Lee Williams, Jr. took Defendant’s statement after he was transported to the
Memphis Police Department. Sergeant Williams advised Defendant of his Miranda rights and
testified that Defendant appeared to understand the process. In his statement, Defendant confessed
that he committed the robbery. He said that a friend drove him and his brother, Sean Anthony, to
the Big Star grocery store. Defendant said that his brother was wearing a gray shirt and black hat
pulled down over his face and carried a .22 caliber Smith and Wesson revolver. Defendant said that
he wore a blue tee-shirt and a bandana over the lower half of his face and was armed with a .22
caliber semi-automatic Smith and Wesson. Defendant said that he took the money out of the two
cash registers at the front of the store while his brother took the money out of the cash register
located at the customer service desk. Defendant said that he also took some money from a customer
standing at the first cash register. Defendant said that he put his shirt and bandana in a brick
barbecue grill behind a house. Defendant said that he tripped on the way out of the grocery store,
and his gun discharged twice.

II. Double Jeopardy

       Defendant does not challenge his convictions in counts one and two for the aggravated
robberies of Teresa Stegall and the customer, Regina Davis. Relying on State v. Franklin, 130
S.W.3d 789 (Tenn. Crim. App. 2003), Defendant argues, however, that the convictions for the


                                                 -3-
aggravated robbery of Ms. Hubbard and Ms. Ross violate double jeopardy provisions. Defendant
contends that the evidence supports only a single robbery connected to the theft from the Big Star
grocery store. He argues that his other two convictions for aggravated robbery should be modified
to aggravated assault as a lesser included offense of aggravated robbery. The State, on the other
hand, argues that Defendant’s conduct constituted three separate “takings” which survive a double
jeopardy challenge.

        The State initially argues that Defendant has waived consideration of his double jeopardy
issue on appeal because he failed to raise this issue in his motion for new trial. See Tenn. R. App.
P. 3(e). Nevertheless, we choose to address this issue on its merits. Tenn. R. Crim. P. 52(b); see
also State v. Lewis, 958 S.W.2d 736 (Tenn. 1997) (citing State v. Goins, 705 S.W.2d 648, 650 (Tenn.
1986)); State v. Epps, 989 S.W.2d 742, 745 (Tenn. Crim. App. 1998)(applying plain error doctrine
to review whether the defendant’s dual convictions violated double jeopardy principles).

        Both our federal and state constitutions prohibit persons from being “twice put in jeopardy”
for the same offense. U.S. Const. amend. V; Tenn. Const. art. I, § 10. “This prohibition against
‘double jeopardy provides protection from three evils: (1) a second prosecution after an acquittal;
(2) a second prosecution after a conviction; and (3) multiple punishments for the same offense.”
Franklin, 130 S.W.3d at 797 (citing Lewis, 958 S.W.2d at 738).

        In Franklin, the owner of an Amoco market and his employee were working behind the sales
counter when the defendant and the co-defendant entered the store. The defendant, brandishing a
handgun, went behind the counter and ordered the store’s owner to open the cash register. The
defendant took the money from the cash register. He then told the owner and his employee to go into
the market’s restroom, and the two perpetrators left the store. Defendant was later convicted of two
counts of aggravated robbery. Franklin, 130 S.W.3d at 791. Although the State pursued dual
convictions under the theory that two employees had been threatened with a handgun, a panel of this
court concluded that the defendants had committed a single theft from the Amoco market, and
therefore only one aggravated robbery. Id. at 798.

       The Franklin court observed that

       Tennessee’s legislature has defined robbery as “the intentional or knowing theft of
       property from the person of another by violence or putting the person in fear.” Tenn.
       Code Ann. § 39-13-401(a). Thus, Tennessee’s robbery statute is defined in terms of
       “theft.” “A person commits theft of property if, with intent to deprive the owner of
       property, the person knowingly obtains or exercises control over the property without
       the owner’s effective consent.” Id. § 39-14-103. Our supreme court has recognized
       that, “[t]he element which distinguishes robbery from theft is the use of violence or
       fear.” State v. Owens, 20 S.W.3d 634, 638 (Tenn. 2000). “Therefore, whether a
       taking is properly characterized as a theft or a robbery is contingent upon whether
       and when violence or fear is imposed.” Id. Indeed, Tennessee courts have frequently
       characterized the crime of robbery as “‘an aggravated form of larceny.’” See, e.g.,


                                                -4-
       State v. Winsett, 217 Tenn. 564, 399 S.W.2d 741, 742 (Tenn. 1965) (quoting 54 C.J.
       1010); Freeman v. State, 520 S.W.2d 739, 741 (Tenn. Crim. App. 1974).

Franklin, 130 S.W.3d at 796.

       The Franklin court thus concluded that,

       Tennessee appears to distinguish robbery from theft on the basis of the method of the
       taking, rather than on the basis of from whom the property is taken. “It is violence
       that makes robbery an offense of greater atrocity than larceny.” Winsett, 399 S.W.2d,
       at 743. The method of the taking remains unaffected by the number of persons who
       may be threatened during the crime. Accordingly, we hold that the proper unit of
       prosecution for robbery in Tennessee is the number of takings, i.e. the number of
       thefts.

Franklin, 130 S.W.3d at 796-97.

         Thus, the question presented in the case sub judice is how many thefts occurred at the Big
Star grocery store, involving employees of the store. (As noted above, Defendant concedes that the
offense committed against the customer constituted a separate theft, and therefore a separate
aggravated robbery.) In Epps, Elizabeth Franklin returned home from a shopping trip and discovered
that someone had entered the house through a broken window. Mrs. Franklin determined that a .38
pistol was missing from her dresser drawer and that the perpetrator(s) had also taken a .20 gauge
shotgun, a .38 long barrel pistol, and a Winchester rifle. Epps, 989 S.W.2d at 743. There was also
evidence that the perpetrator(s) had attempted to steal Mrs. Franklin’s automobile. Based on these
facts, the defendant was convicted of one count of aggravated burglary, one count of theft of property
over $1,000 and one count of attempted theft of property over $1,000. Although not raised in the
trial court, this Court concluded, as plain error, that the defendant’s convictions for both theft and
attempted theft violated double jeopardy principles. Id. at 745. “Specifically, the proof established
that the offenses of theft and attempted theft arose from a single criminal episode, involved the
property of one victim, and both occurred at the same location.” Id.

       The Epps court noted that “[t]he issue of multiple punishments arising from a single criminal
episode was addressed by our supreme court in State v. Phillips, 924 S.W.2d 662 (Tenn. 1996).”
Id. The supreme court, in Phillips, outlined the general principles involved in determining when
offenses are multiplicitous:

       1.      A single offense may not be divided into separate parts; generally, a single
               wrongful act may not furnish the basis for more than one criminal
               prosecution;

       2.      If each offense charged requires proof of a fact not required in proving the
               other, the offenses are not multiplicitous; and


                                                 -5-
       3.      Where time and location separate and distinguish the commission of the
               offenses, the offenses cannot be said to have arisen out of a single wrongful
               act.

Phillips, 924 S.W.2d at 665. “Additional factors such as the nature of the act; the time elapsed
between the alleged conduct; the intent of the accused, i.e., was a new intent formed; and cumulative
punishment may be considered for guidance in determining whether the multiple convictions violate
double jeopardy.” Epps, 989 S.W.2d at 745 (citing Phillips, 924 S.W.2d at 665). With these
principles in mind, the Epps court analyzed,

               Again, the conduct at issue involves the theft of property and attempted theft
       of property from the premises of Elizabeth Franklin. There is no dispute that the four
       weapons taken from inside the home and the automobile, parked under the shed,
       were the property of Elizabeth Franklin. Where several articles are stolen from the
       same owner at the same time and place, only a single crime is committed. See 52A
       C.J.S. Larceny § 53 (1968); see also Nelson v. State, 208 Tenn. 179, 344 S.W.2d
       540, 542 (1960); People v. Timmons, 233 Ill. App. 3d 591, 174 Ill. Dec. 616, 599
       N.E.2d 162, 165 (2 Dist. 1992); Holt v. State, 178 Ind. App. 631, 383 N.E.2d 467,
       472 (1978). Cf. State v. Byrd, 968 S.W.2d 290 (Tenn. 1998) (holding that theft
       offenses may be aggregated into one single charge when the separate larcenous acts
       are from the same location, and pursuant to a continuing criminal impulse); State v.
       Lewis, 958 S.W.2d 736, 739 (Tenn. 1997) (holding that act of setting apartment
       building on fire was single action and double jeopardy prohibits separate convictions
       for each apartment destroyed). Whether the acts of the defendant constitute several
       thefts or one single crime must be determined by the facts and circumstances of each
       case. Id. If each taking is the result of a separate intent, each is a separate crime;
       however, where the takings are all pursuant to a single intent, there is but a single
       larceny. Id. See also Phillips, 924 S.W.2d at 665. It is of no consequence whether
       the taking is completed, or, but, a mere attempt. See Dellenbach v. State, 508 N.E.2d
       1309, 1314 (Ind. App. 3 Dist. 1987). Cf. AMERICAN LAW INSTITUTE, MODEL PENAL
       CODE § 223.1(2)(c) & Comment (1980).

Epps, 989 S.W.2d at 745-46.

         In State v. Pauli, No. M2002-01607-CCA-R3-CD, 2003 WL 21302991 (Tenn. Crim. App.,
Nashville, June 5, 2003), perm. to appeal denied (Tenn. Oct. 27, 2003), the defendant, among other
charges, was initially charged with sixteen counts of theft of property over $60,000. The charges
related to a series of invoices, issued over a span of nearly four months, which documented sales of
products from the defendant’s company, AKO-ISMET, to KMS, an unrelated company. The
defendant, an employee of AKO-ISMET, purchased products from AKO-ISMET and sold them to
KMS at unauthorized prices without the knowledge of AKO-ISMET. Testimony at trial established
that the losses, based upon the difference between the authorized price of the products and the actual
sales price to KMS, exceeded $60,000 per invoice. Id., 2003 WL 21302991, at *10. In its amended


                                                 -6-
bill of particulars, the State aggregated the sixteen theft counts into three charges of theft of property
over $60,000. The first count included invoices dated between April 24 to May 19, 1998; the second
count included invoices dated between June 9 to August 12, 1998; and the third count included
invoices dated between August 26 to September 18, 1998. The jury subsequently found the
defendant guilty, among other offenses, of the three counts of theft of property over $60,000.

        Although not raised on appeal, a panel of this Court addressed the double jeopardy issues
implicated by the defendant’s three theft convictions. Utilizing the principles enunciated in Phillips,
this Court concluded that “the three separate convictions for theft over $60,000 was plain error and
violated the prohibition against double jeopardy. The acts upon which the convictions were based
arose from a single criminal episode, involved the same victim, and occurred at the same location.
Therefore, the acts constituted only one offense of theft.” Pauli, 2003 WL 21302991, at *15
(citation omitted).

        Turning to the instant case, the evidence showed that Defendant and his brother, Sean
Anthony, entered the Big Star grocery store at the same time and proceeded to separate cash registers
in the same general location of the store, evidencing an intent to rob all three cash registers
simultaneously. Sean Anthony went to the customer service area, brandished a gun over the counter
at Ms. Ross, and then reached behind the counter to remove money from her cash register after Ms.
Ross opened the cash drawer. Defendant admitted that at the same time, he went to the cash registers
near the front door and told each employee to open her cash register. He first removed the cash from
Ms. Stegall’s register and then the cash from Ms. Hubbard’s register. Defendant and his brother both
exited the store at the same time through the front door.

        Based on these facts presented in this case, we conclude that Defendant’s three convictions
for aggravated robbery based upon the robbery of each of the store’s three employees violates the
prohibition against double jeopardy. The acts upon which the convictions were based occurred at
the same time and location and represented a single criminal episode with a single criminal intent
to rob the cash registers within the reach of the two perpetrators and then escape from the premises.
See Franklin, 130 S.W.3d at 798; Epps, 989 S.W.2d at 745-46.

        Accordingly, as required by double jeopardy principles, we reverse Defendant’s convictions
for aggravated robbery in counts three and four. That is not to say, however, that Defendant is not
guilty of an offense against Ms. Hubbard and Ms. Ross. See Franklin, 130 S.W.3d at 798. A person
who intentionally or knowingly displays a gun to another, and thereby causes the other to reasonably
fear imminent bodily injury, has committed an aggravated assault. Tenn. Code Ann. § 39-13-
102(a)(10(B). Both Ms. Ross and Ms. Hubbard testified that Defendant brandished a gun during the
robbery, and that they were afraid. Aggravated assault is a lesser included offense of aggravated
robbery. See State v. Jason C. Carter, No. M1998-CCA-R3-CD, 2000 WL 515930, at *8 (Tenn.
Crim. App., Nashville, Apr. 27, 2000), perm. to appeal denied (Tenn. 2000). As a lesser included
offense, Defendant was charged with this offense in count three and count four alleging the
aggravated robbery of Ms. Hubbard and Ms. Ross. Thus, the evidence is sufficient to support a
conviction in counts three and four for aggravated assault against Ms. Hubbard and Ms. Ross. See
Franklin, 130 S.W.3d at 798.

                                                   -7-
III. Sentencing Issues

        At the conclusion of Defendant’s sentencing hearing, the trial court found that three
enhancement factors were applicable: factor (2), Defendant has a previous history of criminal
convictions; factor (3), Defendant was a leader in the commission of the offense; and factor (9),
Defendant has shown a previous unwillingness to comply with the conditions of a sentence involving
release in the community. Tenn. Code Ann. §§ 40-35-114(2), (3), and (9). The trial court extended
some slight consideration to Defendant’s learning disability and the fact that he was on medication
for a mental condition in mitigation of the length of his sentence.

         The trial court also found that Defendant was a dangerous offender and that consecutive
sentencing was necessary to protect society from Defendant’s criminal acts. The trial court based
its findings on the extent of Defendant’s criminal activity since turning eighteen and the dangerous
circumstances under which the current offenses were committed. See Id. § 40-35-115(b)(2), (4).

        The trial court concluded, however, that the length of Defendant’s sentence would be greater
than that deserved for the offense if both enhancement factors and consecutive sentencing were
imposed. Accordingly, the trial court sentenced Defendant to the minimum term of eight years for
each count of aggravated robbery as a Range I, standard offender. The trial court ordered
Defendant’s sentences for counts two, three, and four to run concurrently, and his sentence for count
one to run consecutively with his sentences for the remaining counts, for an effective sentence of
sixteen years.

       Defendant now appeals the trial court’s order of consecutive sentencing arguing that the
evidence fails to support the trial court’s conclusion that Defendant is a dangerous offender.
Defendant also contends that the trial court improperly considered Defendant’s prior convictions
in determining whether Defendant’s record of criminal activity was extensive for purposes of
consecutive sentencing.

         When a defendant appeals the manner of service of a sentence imposed by the trial court, this
court conducts a de novo review of the record with a presumption that the trial court’s determinations
are correct. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness 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). The
defendant has the burden of showing that the sentence is improper. Tenn. Code Ann. § 40-35-
401(d), Sentencing Commission Comments. However, if the record shows that the trial court failed
to consider the sentencing principles and all relevant facts and circumstances, then review of the
sentence is purely de novo. Ashby, 823 S.W.2d at 169.

         When a Defendant is convicted of multiple crimes, the trial court, in its discretion, may order
the sentences to run consecutively if it finds by a preponderance of the evidence that a defendant falls
into one of seven categories listed in Tennessee Code Annotated section 40-35-115. In this instance,
the trial court found that Defendant was “a dangerous offender whose behavior indicates little or no


                                                  -8-
regard for human life, and no hesitation about committing a crime in which the risk to human life
is high.” Tenn. Code Ann. §40-35-115(a)(4). However, if the trial court rests its determination of
consecutive sentencing on this category, the court must make two additional findings. State v.
Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). First, the trial court must find that an extended sentence
is necessary to protect the public from further criminal conduct by Defendant, and, second, it must
find consecutive sentencing to be reasonably related to the severity of the offenses. State v.
Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

        Although such specific factual findings are unnecessary for the other categories enumerated
in Tennessee Code Annotated section 40-35-115(b), the imposition of consecutive sentences is also
guided by the general sentencing principles that the length of a sentence be “justly deserved in
relation to the seriousness of the offense” and “no greater than that deserved for the offense
committed.” Imfeld, 70 S.W.3d at 708 (quoting Tenn. Code Ann. §§ 40-35-102(1) and -103(2));
State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

        Defendant’s contention that a sentencing court is limited to consideration of only the offenses
before it in determining whether a defendant has an extensive criminal history, for purposes of
consecutive sentencing, has been specifically rejected by this Court in State v. Palmer, 10 S.W.3d
638, 648-49 (Tenn. Crim. App. 1999). In Palmer, this Court concluded that Tennessee Code
Annotated section 40-35-115(b)(2) applies to defendants with extensive prior criminal convictions.
Id. at 649.

        In the seven years between the time Defendant turned eighteen and the pre-sentencing report
was prepared, Defendant had at least thirteen convictions including one felony and two misdemeanor
theft convictions, three assault convictions, two misdemeanor drug convictions, four convictions for
driving with a suspended or revoked license, and one violation of probation. The evidence does not
preponderate against the trial court’s finding that Defendant is an offender whose record of criminal
activity is extensive.

         Defendant argues that the record does not support a finding that there were aggravating
circumstances beyond that inherent in the offense of aggravated robbery that would support the trial
court’s finding that he is a dangerous offender. The trial court found that Defendant’s pattern of
criminal activity since turning eighteen, particularly the assault convictions, evidenced his
dangerousness to society. Further, the trial court found that Defendant’s numerous convictions for
driving with a revoked license and his violation of probation indicated a lack of intent to abide by
the law. Coupled with the dangerousness displayed during the aggravated robberies at the Big Star,
the trial court found that consecutive sentencing was necessary to protect society from Defendant’s
conduct.

        Based on our review, we cannot conclude that the trial court erred in classifying Defendant
as a dangerous offender for purposes of consecutive sentencing. In any event, it is necessary to find
the presence of only one of the statutory categories listed in Tennessee Code Annotated section 40-
35-115(b) to support the imposition of consecutive sentencing. See State v. Adams, 973 S.W.2d 224,


                                                 -9-
231 (Tenn. Crim. App. 1997). Defendant’s extensive criminal history alone is sufficient to support
consecutive sentencing. Id. Defendant is not entitled to relief on this issue.

IV. Blakely Issues

        Defendant does not challenge the length of his sentences on appeal because the trial court
sentenced him to the minimum sentence of eight years for a Range I standard offender convicted of
a Class B felony. After the parties filed their briefs in this matter, however, Defendant asked this
Court to consider the impact of the ruling in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531
(2004) as to the trial court’s imposition of consecutive sentences. The State argues that Defendant
has waived this issue under rules 3(e) and 36(a) of the Tennessee Rules of Appellate Procedure.
Because Blakely, however, calls into question certain aspects of our current sentencing scheme, we
will address Defendant’s issue on the merits. See State v. Graham, 90 S.W.3d 687, 692 (Tenn. 2002)
(Under Apprendi, a trial court still retains its discretion to consider applicable enhancement and
mitigating factors so long as the defendant’s sentence is not enhanced beyond the statutory
maximum.)

        In Blakely, the Supreme Court’s concern was the method by which a particular punishment
for an offense can be imposed “in a way that respects the Sixth Amendment.” Blakely, 124 S.Ct. at
2540. The court concluded 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.’” Blakely, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000)).

         Prior to Blakely, the Apprendi court had observed “that nothing in [the] history [of the
common law] suggests that it is impermissible for judges to exercise discretion–taking into
consideration various factors relating both to offense and offender–in imposing a judgment within
the range prescribed by statute.” Apprendi, 530 U.S. at 481, 120 S. Ct. at 2358, 47 L. Ed. 2d at 449;
see also Ring v. Arizona, 536 U.S. 584, 602, 122 S. Ct. 2428, 2439, 153 L. Ed. 2d 556, 572 (2002)
(“If a State makes an increase in a defendant’s authorized punishment contingent on the finding of
a fact, that fact–no matter how the State labels it–must be found by a jury beyond a reasonable
doubt.”).

        The Blakely court clarified that the relevant “statutory maximum” which forms the basis of
the Apprendi rule “is not the maximum sentence a judge may impose after finding additional facts,
but the maximum he may impose without any additional findings.” Blakely, 124 S. Ct. at 2537. In
the case sub judice, although finding that several enhancement factors were applicable, the trial court
imposed the minimum sentence for each aggravated robbery conviction relevant to a Class B felony.
Thus, the length of each of Defendant’s sentences is not affected by Blakely.

        Defendant argues, however, that although the length of his sentence was not enhanced
beyond the statutory minimum, the imposition of consecutive sentencing has the practical effect of
increasing the length of time he must serve as a result of his convictions. It is this effect of
consecutive sentencing which Defendant contends offends Blakely.

                                                 -10-
        We observe initially, and as the State points out in its brief, a panel of this Court has
previously concluded that Apprendi does not preclude a trial court from determining whether a
defendant’s multiple sentences should be served consecutively or concurrently. State v. Ira Ishmael
Muhammed, No. E2003-01629-CCA-R3-CD, 2204 WL 1073889 (Tenn. Crim. App., Knoxville, May
10, 2004). The question becomes, therefore, to what extent, if any, does Blakely impact the trial
court’s discretion to impose consecutive sentencing under our sentencing scheme.

         As noted above, the concerns expressed in Blakely revolve around a defendant’s Sixth
Amendment right to have a jury determine the presence of all of the essential elements of the charged
offense beyond a reasonable doubt, no matter how these elements are labeled by the State. Blakely,
124 S. Ct. 2538-39. The determination of the manner in which a defendant’s sentences will be
served, however, occurs only after the defendant has either pled guilty or been found guilty of two
or more offenses beyond a reasonable doubt and under the protections afforded by the defendant’s
due process and Sixth Amendment rights. See Tenn. Code Ann. § 40-35-115(a). As our supreme
court recently observed, “several courts have rejected [this] contention and held that Blakely and
Apprendi do not apply to the decision to impose consecutive sentences.” State v. Gregory Robinson,
___ S.W.3d ___, No. W2001-01299SC-R11-DD, slip op. at 26 n.14 (Tenn. Sept. 28, 2004)(citing
People v. Sykes, 16 Cal. Rptr. 3d 317, 327 (Cal. App. 2 Dist. 2004)(citing cases)). The Sykes court
concluded that although “[t]hose facts which affect the appropriate sentence within the range of
potential terms of incarceration for each offense are subject to Blakely and Apprendi; this
constitutional principle does not extend to whether the sentences for charges which have been found
to be true beyond a reasonable doubt shall be served consecutively.” Sykes, 16 Cal. Rptr. 3d at 327.

       Unless mandated by statute, a trial court must find that a defendant meets one of seven
enumerated criteria before imposing consecutive sentencing. Id. §§ 40-35-115(a); see 39-16-605
(consecutive sentences for escape from a penal institution mandatory); and 40-20-111(b)
(consecutive sentences mandatory for felonies committed on bail). These factors include a finding
that:

       (1) The defendant is a professional criminal who has knowingly devoted such
       defendant’s life to criminal acts as a major source of livelihood;
       (2) The defendant is an offender whose record of criminal activity is extensive;
       (3) The defendant is a dangerous mentally abnormal person so declared by a
       competent psychiatrist . . .;
       (4) The defendant is a dangerous offender whose behavior indicates little or no regard
       for human life, and no hesitation about committing a crime in which the risk to
       human life is high;
       (5) The defendant is convicted of two (2) or more statutory offenses involving sexual
       abuse of a minor . . .;
       (6) The defendant is sentenced for an offense committed while on probation; [or]
       (7) The defendant is sentenced for criminal contempt.

       Tenn. Code Ann. § 40-35-115(b).


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        None of these factors involve facts necessary to constitute the elements of the underlying
offense. Rather, the determination rests upon a need “to protect the public from further criminal
conduct by the defendant,” resulting in an aggregate maximum sentence that is “reasonably related
to the severity of the offenses involved.” State v. Taylor, 739 S.W.2d 227, 230 (Tenn. 1987); Gray
v. State, 538 S.W.2d 391 (Tenn. 1976); see also Tenn. Code Ann. § 40-35-115, Sentencing
Commission Comments.

       It appears that Blakely concerns do not apply to the trial court’s decision to impose
consecutive sentencing under our sentencing scheme. Defendant is not entitled to relief on this issue.

                                          CONCLUSION

         After a thorough review of the record, we affirm Defendant’s convictions of aggravated
robbery in counts one and two. We modify Defendant’s convictions in counts three and four to
aggravated assault. We remand only Defendant’s convictions for aggravated assault for the purpose
of resentencing. Under Blakely, the trial court may only consider Defendant’s prior convictions as
an enhancement factor in determining the length of his sentences for aggravated assault. We affirm
the trial court’s judgment in all other respects including the imposition of consecutive sentencing.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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