         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 13, 2004

                  STATE OF TENNESSEE v. RODERICK DAVIS

                     Appeal from the Criminal Court for Shelby County
                          No. 99-08211, 12    J. C. McLin, Judge



                  No. W2002-02338-CCA-R3-CD - Filed December 13, 2004




DAVID G. HAYES, Judge, dissenting, with regard to sentencing modification.


        The majority concludes that modification of the defendant’s sentences for especially
aggravated robbery and aggravated burglary is required in light of Blakely v. Washington, 542 U.S.
__, 124 S. Ct. 2531 (2004). I must respectfully dissent.

        I find any sentencing challenge available to the defendant under Blakely is waived because
no objection to the admissibility of the now questioned sentencing evidence was raised at the trial
level. See Tenn. R. App. P. 36(a). Moreover, no Blakely violation is asserted on appeal. See Tenn.
R. App. P. 13(b). In Blakely, the Supreme Court clarified and extended the rule previously
expressed in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), with regard to the term
“statutory maximum.” Clearly, the defendant could have raised this issue under Apprendi at the trial
level as did the defendant Blakely; however, this was not done. I see no valid reason to abandon
well-established rules of appellate procedure to accommodate an Apprendi/Blakely violation,
particularly in view of the Supreme Court’s recent decision in United States v. Cotton, 535 U.S. 625,
122 S. Ct. 1781 (2002). In Cotton, the Supreme Court held, after its decision in Apprendi, that the
defendant’s claim of right to a trial and finding by a jury on a fact to enhance the defendant’s
sentence was forfeited because it was not raised at trial. Id. at 631-34, 122 S. Ct. at 1785-87.
Moreover, the Supreme Court has held:

       (1) the Apprendi rule is not a substantive rule that alters the range of conduct or the
       class of persons that the law punishes; rather, it is a procedural rule that affects only
       the manner of determining the defendant’s culpability, and (2) the Apprendi rule is
       not a “watershed rule of criminal procedure” that implicates the fundamental fairness
       and accuracy of criminal proceedings.

People v. George Carl Sample, 122 Cal. App. 4th 206, 220, 18 Cal. Rptr. 3d 611, 620 (Cal. Ct. App.
2004) (quoting Schriro v. Summerlin,__ U.S. __, 124 S. Ct. 2519, 2520-21 (2004)). Furthermore,
review and modification of the defendant’s sentence for the first time on appeal not only has the
effect of removing the trial court as the primary sentencing court, it also denies the State the
opportunity to be heard in the sentencing decision. Accordingly, I find the Blakely issue waived.

         Because the issue is waived, it is reviewable only under the discretionary authority of plain
error. See Tenn. R. Crim. P. 52(b). Rule 52(b) provides, “[a]n error which has affected the
substantial rights of an accused may be noticed at any time, even though not raised in the motion for
a new trial or assigned as error on appeal, in the discretion of the appellate court where necessary to
do substantial justice.” This court is permitted to correct an error not raised before the trial court
only when (1) the lower record is clear, (2) a clear rule of law has been breached, (3) a substantial
right has been affected, (4) the waiver was non-tactical, and (5) consideration of the error is
necessary to do substantial justice. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (adopting
the test articulated by this court in State v. Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994)).
The asserted “‘plain error’ must [have been] of such a great magnitude that it probably changed the
outcome of the trial.” Adkisson, 899 S.W.2d at 642.

        Applying Blakely, the majority concludes that four statutory sentencing enhancers are
inapplicable to the defendant’s sentences: (1) the defendant was a leader in committing the offenses,
(2) the defendant had a previous history of unwillingness to comply with conditions of a sentence
involving release, (3) the crimes were committed while the defendant was on bail for another felony,
and (4) the defendant was previously adjudicated to have committed a delinquent act or acts as a
juvenile that would constitute a felony if committed by an adult. See Tenn. Code Ann. § 40-35-
114(3), (9), (14), (21) (2003).

        As evidenced by the record, the proof presented at the sentencing hearing supporting these
four enhancers would clearly have permitted imposition of an enhanced sentence by an empaneled
jury. In view of these circumstances, the defendant has failed to establish that consideration of the
error is “necessary to do substantial justice” or that the alleged error changed the outcome of the
sentencing decision. See United States v. Stephen Savarese, 2004 U.S. App. LEXIS 19824, No. 04-
1009 (1st D. Sept. 22, 2004). The distinction between harmless error analysis and error assigned on
appeal cannot be overlooked. See Cotton, 535 U.S. at 1786, 122 S. Ct. at 633 (affirming
enhancement of the defendant’s sentence following plain error analysis notwithstanding presence
of Apprendi error).

        Because I find the record supports application of the four enhancing factors, no “substantial
right has been affected.” Accordingly, I would affirm the defendant’s twenty-four-year sentence for
especially aggravated robbery. With regard to the defendant’s conviction for aggravated burglary,
I would remand for resentencing..


                                                               ______________________________
                                                               David G. Hayes, Judge



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