             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                 Assigned on Briefs October 30, 2007

                  STATE OF TENNESSEE v. TIMOTHY R. BOUTON

                        Appeal from the Criminal Court for Hamilton County
                                No. 251419   Rebecca Stern, Judge



                       No. E2006-02737-CCA-R3-CD - Filed February 8, 2008



DAVID G. HAYES, J., dissenting in part.


       The majority, after finding plain error, remands for re-sentencing to conform with the
requirements of Blakely v. Washington. I must respectfully dissent.

         After review, I am unable to conclude that plain error exists because (1) correction of the
error is not “necessary to do substantial justice,” see Tenn. R. Crim. P. 52(b), and (2) the admission
of Blakely error at the Defendant’s sentencing hearing, without objection, was based upon tactical
reasons. See State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (for error to be plain requires that
the error waived was not waived for tactical purposes). For the first time on appeal, the Defendant,
after two sentencing hearings, now argues that his sentence for vehicular homicide requires
modification in light of Blakely v. Washington.

       On August 17, 2006, this court remanded the Defendant’s case to the trial court for a
determination of whether sentencing would be governed by the pre-June 7, 2005 sentencing
provisions or by the June 7, 2005 sentencing amendments, which were enacted by our legislature in
express response to the requirements of Blakely v. Washington. As such, the sentencing benefits of
Blakely were readily available to the Defendant during the sentencing hearing. On remand, the
Defendant, as observed by the majority, “elected to be sentenced” under the pre-June 7, 2005
sentencing provisions. We must presume that the Defendant’s selection was informed and made
upon the advice of counsel, after weighing the pros and cons of the respective sentencing provisions.1
Having elected to be sentenced under the pre-June 7, 2005 law, the trial court then applied the
applicable law at the time under State v. Gomez, 163 S.W.3d 632 (Tenn. 2005) (“Gomez I”).


         1
           The Defendant’s situation in this case is totally inapposite to that of the defendant Gomez in State v. Gomez,
239 S.W .3d 733 (Tenn. 2007) (“Gomez II”), who, at the time of his sentencing, did not have the option to select from
a constitutionally valid sentencing scheme as required by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
         It is clear that the Defendant could have raised Blakely error at the sentencing hearing, but
he chose not to do so. He was given the option to choose the post-June 7, 2005 sentencing
provisions, which complied with Blakely. Now, after the sentence is imposed, he argues that his
sentence violates Blakely. For these reasons, I find that the error was knowingly waived for tactical
reasons. See Tenn. R. App. P. 36(a) (relief may not be granted to a party who failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of an error). Because the
issue is waived, it is reviewable on appeal only under the discretionary authority of plain error. See
Tenn. R. Crim. P. 52(b); see also Tenn. R. App. P. 13(b).

        An appellate court is permitted to correct plain error only when the error is “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). Clearly, this was the import of the Supreme Court’s recent holding
in U. S. v. Booker, 543 U.S. 220, 268, 125 S. Ct. 738, 769 (2005), wherein it opined that not “every
[Blakely/Booker] appeal will lead to a new sentencing hearing. This is because we expect reviewing
courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised
below and whether it fails the ‘plain-error’ test.”

         Following de novo review, the record supports application of enhancing factors (2), previous
history of criminal conviction; and (11), no hesitation about committing a crime when the risk to
human life is high. See T.C.A. § 40-35-114(2), (11). The record does not support application of
factor (14) because the Defendant was not on felony probation when the instant crimes were
committed.2 See T.C.A. § 40-35-114(14). The majority rejects factor (11) not because it does not
exist but because it violates Blakely. I find, however, under de novo review, that had a jury heard
the proof with regard to factors (2) and (11), the jury’s sentencing verdict would have been the same
as that of the trial court. Accordingly, the Defendant has failed to establish prejudice in order to
satisfy the “affecting substantial rights” requirement of Rule 52(b). See United States v. Cotton, 535
U.S. 625, 633, 122 S. Ct. 1781, 1786 (2002).

         In sum, I am unpersuaded that the Defendant, who has already had two bites at the apple, by
saying nothing, gets a third bite. Accordingly, I would affirm the Defendant’s sentence of ten years.
In all other respects, I join with the majority.




                                                             ___________________________
                                                             DAVID G. HAYES, JUDGE




       2
           Under the 2007 amendments, factor (14) would be applicable.

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