         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs February 8, 2005

                STATE OF TENNESSEE v. DONALD SOLOMON

                 Direct Appeal from the Circuit Court for Franklin County
                           No. 15166    Buddy D. Perry, Judge



                     No. M2004-01264-CCA-R3-CD - Filed June 7, 2005


The defendant, Donald Solomon, pled guilty to theft of property valued at $1,000, but less than
$10,000, a Class D felony. After conducting a sentencing hearing, the trial court classified the
defendant as a Range I, standard offender and sentenced him to four years in the Department of
Correction. The trial court ordered the defendant to serve the sentence consecutive to a sentence in
another case for which the defendant was on probation at the time. In this direct appeal, the
defendant presents the single issue of whether the trial court erred in sentencing. We affirm the
judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J.C. MCLIN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and NORMA MCGEE
OGLE, JJ., joined.

David O. McGovern, Assistant Public Defender, for the appellant, Donald Solomon.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel Criminal
Justice Division; J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                 Facts and Procedural History

        The brief recitation of the facts at the plea hearing to which the defendant acquiesced
established that he had taken sums of money from several individuals to purchase all-terrain
vehicles. Rather than purchasing and delivering the vehicles to the buyers, the defendant
misappropriated the money to support his drug habits. The presentence report revealed that the
defendant, at the time this offense was committed, was on felony probation in Coffee County for
passing worthless checks in an amount more than $1,000 and for six counts of theft over $1,000.
The presentence report also showed a series of similar prior felony convictions, a pending probation
violation, and twelve cases pending in Coffee County that allege eighteen additional thefts.

        At the sentencing hearing, the defendant admitted that he had “ten prior convictions for doing
the same thing that [he was] convicted here for, taking money from people, promising them stuff and
. . . never deliver[ing] on [his] promise.” The defendant further acknowledged that he was on
probation at the time he committed this offense. At the conclusion of the hearing, the trial court
stated:

       The range in the case is two to four years.
               I’m going to treat for the purpose of mitigating factors the nonviolent nature
       and his age. I’m going to find as enhancing factors the prior criminal conduct and
       the fact that he was on probation at the time of the offense. I’m giving virtually no
       weight to either of the mitigating factors. I’m recognizing them and giving them a
       very minimum amount of weight. I think the enhancing factors significantly, in this
       case, particularly the course of prior criminal conduct, significantly outweigh the
       mitigating factors and I’m going to set the sentence at four years. He is presumed
       entitled to alternative sentencing. However, in this case I think he’s demonstrated to
       the Court that alternative sentencing is not going to be sufficient deterrent . . . and
       I’m going to require him for that reason to serve the four year sentence [in the]
       Department of Corrections [sic].

In justifying its order that the sentence be served consecutively to the sentence for which the
defendant was on probation, the trial court stated, “the fact that [the defendant] went back to the
scheme and did the same thing while on probation justifies this Court imposing a sentence that’s not
simply a concurrent sentence.” Subsequently, the defendant filed notice of this appeal.

                                              Analysis

       In this appeal, the defendant relies on Blakely v. Washington, 542 U.S. - - - -, 124 S. Ct. 2531
(2004), to argue that his Sixth Amendment right to trial by jury was violated by the trial court’s
application of enhancement factors neither admitted by him nor found by a jury. Specifically, he
contests the trial court’s application of enhancement factors (2), prior criminal conduct, and (9),
unwillingness to comply with the conditions of a sentence involving release into the community on
probation at the time of the offense. Tenn. Code Ann. § 40-35-114(2), (9).

        The State contends that the defendant has effectively waived this argument by failing to raise
the argument prior to appeal. We agree. In the recent decision State v. Gomez, - - - S.W.3d - - - -,
No. M2002-01209-SC-R11-CD (Tenn. April 15, 2005), the Tennessee Supreme Court announced
that Tennessee’s sentencing structure does not violate the Sixth Amendment. Id. at - - - -. The court
also determined that Blakely did not establish a new rule of law. Id. at - - - -. As such, the
defendant, who has failed to assert this issue prior to appeal, has effectively waived the issue.



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Furthermore , the Gomez court concluded that a Tennessee trial judge’s discretionary application of
sentence enhancement factors absent an admission or jury finding does not amount to plain error.
Id. at - - - -. In accordance with this reasoning, we conclude that the defendant’s Blakely challenge
does not necessitate the reversal of his sentence.

                                            Conclusion

       We affirm the judgment of the trial court.




                                                       ___________________________________
                                                      J.C. McLIN, JUDGE




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