         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs December 7, 2004

                   STATE OF TENNESSEE v. CARL McINTOSH

                  Direct Appeal from the Circuit Court for Madison County
                           No. 02-290    Donald H. Allen, Judge



                    No. W2003-02359-CCA-R3-CD - Filed March 30, 2005


THOMAS T. WOODALL, J., concurring in part and dissenting in part.

       I concur in all parts of the majority opinion except to that portion which holds that the felony
sentence imposed in violation of Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) is
harmless error beyond a reasonable doubt.

        The majority relies upon the decision of a panel of this Court in State v. Chester Wayne
Walters, No. M2003-03019-CCA-R3-CD, 2004 WL 2726034 (Tenn. Crim. App., at Nashville, Nov.
30, 2004), perm. to appeal denied (Tenn. Mar. 21, 2005), for the conclusion that Blakely violations
in Tennessee’s sentencing scheme are subject to constitutional harmless error analysis. In Walters,
a panel of this Court relied upon two opinions of the United States Supreme Court in holding that
Blakely issues are subject to constitutional harmless error analysis:

       We next consider whether harmless error applies to constitutional violations under
       Blakely. Regarding constitutional harmless error analysis, the Supreme Court has
       stated that a trial court’s findings of facts necessary to increase a defendant’s sentence
       are essentially elements of a greater offense. [Ring v. Arizona, 536 U.S. 584, 609, 122
       S. Ct. 2428, 2443 (2002)]. It has also held that a jury’s failure to find an element of
       an offense is subject to harmless error review. Neder v. United States, 527 U.S. 1,
       8-14, 119 S. Ct. 1827, 1833-36, 144 L. Ed. 2d 35 (1999). We therefore hold that any
       issues raised on appeal arising out of Blakely are subject to constitutional harmless
       error analysis.

Walter, 2004 WL 2726034, at *62.

        Ring and Neder clearly state what is reflected in the Walters opinion. However, what is not
addressed by the Court in Walters, and the majority opinion in the case sub judice, is the fact that
in Neder a jury was empowered and available to find the “omitted” element of the offense for which
the defendant was on trial, but the trial court erroneously took that issue away from the jury. In other
words, there was the option, if the case was reversed and remanded for a new trial, that the jury
would be allowed to make a factual finding of the initially “omitted” element of the offense. It was
with this backdrop that the United States Supreme Court found that the error was harmless beyond
a reasonable doubt.

       In Neder, “materiality” was the element of the fraud cases for which the defendant was tried,
and which the trial court erroneously did not allow the jury to make a factual finding of its existence.
The Court in Neder noted,

       [Defendant] underreported $5 million on his tax returns, and did not contest the
       element of materiality at trial. [Defendant] does not suggest that he would introduce
       any evidence bearing upon the issue of materiality if so allowed. Reversal without
       any consideration of the effect of the error upon the verdict would send the case back
       for retrial–a retrial not focused at all on the issue of materiality, but on contested
       issues on which the jury was properly instructed.

Neder, 527 U.S. at 15, 119 S. Ct. at 1836-37.

         At the time of Defendant’s trial in the case sub judice, there was no statutory provision for
the jury to make the factual determination of the applicability of enhancement factors beyond a
reasonable doubt. Only the trial court could make these factual determinations, and was only
required to find them by a preponderance of the evidence. This procedure is in violation of Blakely
as to all the statutory enhancement factors except prior convictions of a defendant (found beyond a
reasonable doubt by the trial court).

       Constitutional harmless error analysis may well apply to violations of Blakely in Tennessee’s
sentencing scheme, but I respectfully submit, only in the following manner: if the trial court’s
enhancement of a defendant’s sentence can be justified alone by (a) the prior convictions and/or (b)
any enhancement factor “admitted by” the defendant (whatever that terminology encompasses), then
application of other enhancement factors not found by a jury would be harmless error beyond a
reasonable doubt.

         This is analogous to the situation where there is error in the application of aggravating
circumstances in a capital case. See Coleman v. State, 3 S.W.3d 19, 22 (Tenn. Crim. App. 1998).
In this situation, “[a] capital sentencing jury’s consideration of an invalid aggravating circumstance
may be considered harmless only if the appellate court concludes, beyond a reasonable doubt, ‘that
the sentence would have been the same had the sentencing authority given no weight to the invalid
aggravating factor.’” Id. (citing State v. Howell, 868 S.W.2d [238, 260 (Tenn. 1993)]. In making this
determination, the appellate court “should consider ‘the number and strength of remaining valid
aggravating circumstances, the prosecutor’s argument at sentencing, the evidence admitted to
establish the invalid aggravator, and the nature, quality and strength of mitigating evidence.’”
Coleman, 3 S.W.3d at 22 (citing [Howell, 868 S.W.2d] at 261).




                                                  -2-
         Applying the harmless error analysis in the manner done so by the court in Walters, and by
the majority in the case sub judice, simply perpetuates the Blakely violation in Defendant’s
sentencing. No jury at the time of Defendant’s trial, or at the time of the filing of this Court’s
opinion in his case, would have the statutory power to determine sentencing enhancement factors
in compliance with Blakely. Defendant, and all those in a similar position, have a constitutional
Sixth Amendment right for a jury to determine the existence of all of Tennessee’s enhancement
factors for felonies, except prior convictions. However, under the majority’s decision, there is in
effect no remedy for when this right has been denied. The crux of the decision in Blakely was not
the strength of the evidence regarding a sentencing enhancement factor – it was the Sixth
Amendment right of the defendant in a criminal case to have a jury determine the existence of the
enhancement factor beyond a reasonable doubt rather than by a preponderance of the evidence by
the trial court. To apply harmless error analysis such that an appellate court holds that a hypothetical
and non-existent jury would obviously apply an enhancement factor based upon the strength of the
proof renders Blakely meaningless.

       To me, a Blakely or other similar constitutional error is harmless beyond a reasonable doubt
when the appellate court concludes that if the case is remanded for a new hearing, the result would
be same beyond a reasonable doubt. This, of course, is dependent upon the new hearing being in
compliance with the constitutional rule previously violated. Thus, where a jury bases a penalty
verdict of death upon finding multiple “aggravating circumstances,” and one aggravating
circumstance is found to be in violation of a constitutional right, there is harmless error if the
appellate court concludes beyond a reasonable doubt that the result would be the same after a new
sentencing hearing without the constitutionally infirm aggravating circumstance being found by the
jury. See Coleman, 3 S.W.3d at 22.

        As long as Tennessee’s sentencing scheme has presumptive sentences for felonies, which can
be increased only by a trial court finding by a preponderance of the evidence the applicability of one
or more of the statutory enhancing factors, any enhancing factor, which is not a prior conviction or
a factor “admitted to” by a defendant, used to increase a felony sentence beyond the presumptive
sentence violates Blakely. Until there is a change in the sentencing scheme, no new hearing after
remand can comply with Blakely in such situations. If a jury is not statutorily permitted to determine
the existence of an enhancing factor, how can we as appellate judges logically conclude that a jury
which could not find an enhancing factor would have done so beyond a reasonable doubt?

        In the case sub judice, the trial court imposed the maximum sentence of twelve years based
upon the existence of three enhancement factors, two of which were found in violation of Blakely.
As noted in the majority opinion, the trial court placed “great weight” on one of the enhancement
factors which violates Blakely, that Defendant was on parole at the time of the offense. See Tenn.
Code Ann. § 40-35-114(14)(B). Erroneous application of two enhancement factors in this case does
not constitute harmless error beyond a reasonable doubt as to the sentence imposed. I would
therefore modify the felony sentence from twelve to ten years.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE

                                                  -3-
