         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE

               STATE OF TENNESSEE v. JOHN C. WALKER, III

                                Circuit Court for Putnam County
                                          No. 02-0306
__________
____________________________

                    No. M2003-01732-CCA-R3-CD - Filed February 8, 2005
                            ____________________________

                                              ORDER

         This matter is before the Court on a motion to rehear, pursuant to Rule 39 of the
Tennessee Rules of Appellate Procedure. In his motion, the defendant challenges both the
application of enhancement factors absent a jury finding, following the holding in Blakely v.
Washington; and the rejection of three mitigating factors. Initially, we note that the latter is not
cognizable in this proceeding; Tennessee Rule of Appellate Procedure 36(a) states: “A
rehearing will not be granted to permit reargument of matters fully argued.” In the instant case,
the trial court’s rejection of the mitigating factors in question was fully litigated on direct appeal;
as such, our analysis will be confined to the applicability of the enhancement factors in light of
the Supreme Court’s holding in Blakely.

                                               Waiver

       A necessary first step in our analysis is to address the State’s argument that the defendant
waived any Blakely challenge for failing to raise the issue earlier. I am in agreement with the
opinion of Judge Woodall, which states:
       Assuming that [the defendant] in this case had argued in the trial court, under
       Apprendi, that no enhancement factor other than prior convictions could be
       applied absent a jury finding, the trial court, and this Court (prior to the U.S.
       Supreme Court’s opinion in Blakely) would have been obligated to reject that
       issue under Graham[v. State].
State v. Ricky Grover Aaron, No. M2002-02288-CCA-R3-CD. Therefore, because previous
precedent required our courts to reject the contention ultimately adopted in Blakely, the
defendant would have had no reason to challenge it before that case was decided. Thus, such
challenges are not waived.
                                            Applicability of Blakely

        We next analyze whether the enhancement factors were wrongfully applied, in light of
the holding in Blakely. The defendant in the instant case was convicted of second-degree
murder, a Class A felony, which carries a Range I penalty of between fifteen and twenty-five
years. As required by statute, the trial court began with the midpoint of the range, and increased
the sentence based upon the application of two enhancement factors: (10) the defendant
possessed or employed a firearm, explosive device or other deadly weapon during the
commission of the offense; and (17) the crime was committed under circumstances under which
the potential for bodily injury to a victim was great.

        Based upon the trial court’s finding that the enhancement factors were applicable, and
that no mitigating factors applied, the defendant’s sentence was increased to twenty-five years,
the maximum sentence within the range. On appeal, this Court upheld the application of factor
(10) and further noted that the “trial court gave a ‘great deal of weight’” to that factor in
determining its sentence. This Court rejected the application of factor (17); however, we found
that the trial court “could have used enhancement factor (11),” which states that “the defendant
had no hesitation about committing a crime when the risk to human life was high.” Thus, we
upheld the enhanced sentence of twenty-five years.1

        The appropriateness of the application of factors (10) and (11) must now be reviewed in
light of the Supreme Court’s holding in Blakely. Blakely requires that enhancement factors be
either admitted by the defendant or found by a jury determination beyond a reasonable doubt.
See Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Because neither factor meets
the requirements of Blakely, both were improperly applied.

                                                    Conclusion

      Because both factors were applied in violation of Blakely, the defendant’s second-degree
murder sentence is reduced from twenty-five years to twenty years, the presumptive minimum.




                                                                  ____________________________________
                                                                      JOHN EVERETT WILLIAMS, JUDGE




1
    Our earlier opinion was rendered without regard to Blakely.
