        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs August 30, 2011

                STATE OF TENNESSEE v. SUSAN RENEE BISE

              Direct Appeal from the Criminal Court for Greene County
                     No. 09-CR-353    John F. Dugger, Jr., Judge




              No. E2011-00005-CCA-R3-CD - Filed September 15, 2011


T HOMAS T. W OODALL, J., concurring in part and dissenting in part.

       I concur with the majority opinion in affirming the convictions. I respectfully dissent
from the majority opinion’s conclusion that the effective sentence must be modified to the
minimum sentence of two years, based upon the majority’s conclusion that the one
enhancement factor found by the trial court was inappropriately applied. I do agree that the
enhancement factor was inappropriately applied. I conclude, however, that in order for our
sentencing scheme to be in full compliance with the United States Supreme Court’s holding
in Blakely v. Washington, 542 U.S. 296, 1245 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and that
case’s progeny, we cannot reduce an enhanced sentence imposed by a trial court which is
within the appropriate range, for the sole reason that no statutory enhancement factors are
applicable.

       As stated by the United States Supreme Court in Cunningham v. California, 549 U.S.
270, 127 S.Ct. 856 (2007),

       As this Court’s decisions instruct, the Federal Constitution’s jury-trial
       guarantee proscribes a sentencing scheme that allows a judge to impose a
       sentence above the statutory maximum based on a fact, other than a prior
       conviction, not found by a jury or admitted by the defendant. Apprendi v. New
       Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v.
       Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Blakely v.
       Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United
       States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
       “[T]he relevant ‘statutory maximum,’” this Court has clarified, “is not the
       maximum sentence a judge may impose after finding additional facts, but the
       maximum he may impose without any additional findings.” Blakely, 542 U.S.
       at 303-304, 124 S.Ct. 2531 (emphasis in original).

Cunningham, 549 U.S. at 274-75, 127 S.Ct. at 860.

       Merely providing broad discretion with the trial judge to consider various factors in
deciding the sentence does not satisfy Blakely. In Cunningham, the Court stated clearly that,

       We cautioned in Blakely, however, that broad discretion to decide what facts
       may support an enhanced sentence, or to determine whether an enhanced
       sentence is warranted in any particular case, does not shield a sentencing
       system from the force of our decisions. If the jury’s verdict alone does not
       authorize the sentence, if, instead, the judge must find an additional fact
       to impose the longer term, the Sixth Amendment requirement is not
       satisfied. 542 U.S., at 305, and n. 8, 124 S.Ct. 2531.

Cunningham, 549 U.S. at 290, 127 S.Ct. at 869. (emphasis added).

       The Cunningham Court, in the text of the opinion relative to footnote 18, approved
the current statutory sentencing scheme of Tennessee, but implicitly only to the extent that
application of the statutory scheme by the appellate courts does not run afoul of Blakely.
Cunningham, 549 U.S. at 294, 127 S.Ct. at 871 (“Other States [i.e. Tennessee] have chosen
to permit judges genuinely ‘to exercise broad discretion. . .within a statutory range,’ which,
‘everyone agrees,’ encounters no Sixth Amendment shoal. [United States v.] Booker, 543
U.S. [220][] 233, 125 S.Ct. 738 [(2005)]”).

       In State v. Carter, 254 S.W.3d 335 (Tenn. 2008), our Supreme Court held that under
the current Blakely compliant statutory sentencing scheme,

       [t]he amended statute no longer imposes a presumptive sentence. Rather, the
       trial court is free to select any sentence within the applicable range so long as
       the length of the sentence is “consistent with the purposes and principles of
       [the Sentencing Act]. Id. § 40-35-210(d). Those purposes and principles
       include “the imposition of a sentence justly deserved in relation to the
       seriousness of the offense,” id. § 40-35-102(3), and consideration of a
       defendant’s “potential or lack of potential for . . . rehabilitation,” id. § 40-35-
       103(5).

Carter, 254 S.W.3d at 343.



                                               -2-
       In Carter the Supreme Court also held that since statutory enhancement and mitigating
factors are merely advisory, a trial court does not err (abuse its discretion) by not setting a
sentence above the minimum even if it finds applicable several enhancement factors. Carter,
254 S.W.3d at 345. Conversely, the trial court cannot abuse its discretion by imposing a
sentence below the maximum in the range, even if several mitigating factors are found
applicable. Id.

        The appellate courts cannot impose with case law what the legislatures are
constitutionally prohibited from imposing with statutory law. By holding that the length of
the defendant’s sentence in the case sub judice must be reduced to the statutory minimum
sentence because the sole enhancement factor applied by the trial court is not applicable, the
majority, by implication, is holding that the defendant’s sentence in this case cannot be
increased above the minimum unless the trial court finds applicable an enhancement factor
that is not a prior conviction. In effect, this, to me, obviously violates Blakely. I am unsure
under what circumstances the length of a sentence, imposed within the appropriate range, can
be modified by this court on appeal without, in effect, causing the statutory scheme in
Tennessee to violate Blakely. In Carter, the Supreme Court noted that a party in that case
asserted “that ‘[t]he tenor of the 2005 amendments [to the sentencing statutes] is that the only
limitations on the discretion of the trial court are the bounds of the applicable range.’”
Carter, 254 S.W.3d at 344, n. 10. The Supreme Court in Carter did not address this assertion
due to the fact its holding in the case relieved it of the necessity to do so, even though it noted
that sentences must comport with the purposes enunciated in Tennessee Code Annotated
section 40-35-102 and the principles codified at section 40-35-103. Carter, 254 S.W.3d at
344, n. 10.

      Despite what I may have previously written or concurred in, I am now compelled to
conclude that not only the “tenor of the 2005 amendments,” but Blakely and Cunningham
mandate that a trial judge’s discretion to set a sentence anywhere within the appropriate range
cannot be limited by the fact that no “advisory” enhancement factors are applicable.

       Accordingly, I would affirm the judgments of the trial court.

                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




                                                -3-
