         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 18, 2004

           STATE OF TENNESSEE v. STACY MCKINLEY TAYLOR
                      alias RONALD LEE TAYLOR

                     Appeal from the Criminal Court for Sullivan County
                     Nos. S47,106 and S47, 112 Phyllis H. Miller, Judge



                   No. E2003-02458-CCA-R3-CD - Filed December 29, 2004


Hayes, David G., Judge, dissenting, in part, with regard to sentencing modification.

       The majority concludes that modification of the defendant’s sentences for aggravated assault
and theft are required in light of Blakely v. Washington, 542 U.S.___, 124 S. Ct. 2531 (2004).

        For those reasons expressed in State v. Ricky Grover Aaron, No. M2002-02288-CCA-R3-CD
(Tenn. Crim. App. at Nashville, Dec. 13, 2004) (Hayes, J., dissenting), I find that any sentencing
challenge available to the defendant under Blakely is now waived because the defendant did not
object at trial or on appeal to what the majority now concludes is a constitutionally infirm sentencing
scheme. Tenn. R. App. P. 36(a). After review of the record, I do not find that any sentencing
modification is required for the defendant’s conviction for aggravated assault. I agree, however, that
sentencing modification is required for the defendant’s sentence for theft, in view of the
misapplication of sentencing enhancers which are not supported by the record.

         The majority opines that the sentences violate Blakely and, in a “harmless error” analysis,
further concludes that any sentencing errors are harmless. Tenn. R. Crim. P. 52(a). Notwithstanding
their conclusion that the error does not affirmatively appear to have affected the sentencing
determination, the majority, nonetheless, modifies the sentences. Thus, although this court is an
error-correcting court, the majority implicitly rejects review of any error stemming from a Blakely
violation. First, I find that the error is not reviewable under harmless error analysis. The majority
cites as reliance for harmless error review, Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827,
1839 (1990). However, the error in Neder was objected to at trial, thus mandating harmless error
review on appeal. Id. at 1832. Second, I find this court has the authority to review alleged Blakely
errors under the discretionary authority of plain error. Tenn. R. Crim. P. 52(b).

        “Plain-error review differs from harmless-error review in two important respects. First, in
plain-error review, the defendant bears the burden of persuasion with respect to prejudice or the
effect on substantial rights. In harmless error review, the government has the burden. Second, while
both plain-error and harmless-error review consider whether a defendant’s rights were substantially
affected, plain-error review has the additional requirement that an appellate court then must decide
whether to exercise its discretion to notice a forfeited error. That discretion may be exercised only
if the error also ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’”
United States v. Monroe, 353 F.3d 1346 (11th Cir. 2003) (internal cites omitted). The asserted plain
error must have been of such a great magnitude that it probably changed the outcome of the trial.
State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994).

        The majority concludes, and I agree, that the trial court’s misapplication of sentencing factors
requires modification of the defendant’s sentence for theft. Accordingly, I join in modification of
this sentence to reflect a sentence of three years.

        With respect to the defendant’s conviction for aggravated assault, I find that the record
overwhelmingly supports application of enhancement factors (2) and (11) and the enhancement
factor of Tennessee Code Annotated section 39-13-102(d)(1). Because the defendant has failed to
establish prejudice, the provisions of Rule 52(b), which require that a substantial right be affected,
have not been met. I find no modification is necessary.

       For these reasons, I would affirm the defendant’s maximum sentence of six years for
aggravated assault.



                                                          ____________________________________
                                                          David G. Hayes, Judge




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