         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

            STATE OF TENNESSEE v. TERRY WAYNE HAWKINS

                  Appeal from the Criminal Court for Monroe County
                            No. 08133 Amy Reedy, Judge




                  No. E2009-00044-CCA-R3-CD - Filed March 24, 2010




J AMES C URWOOD W ITT, J R., J., concurring.

               I concur in the majority’s conclusion that a trial court is free to set any sentence
within the appropriate sentencing range “regardless of the presence or absence of mitigating
and enhancement factors.” I write separately, however, to emphasize that the 2005
amendments to the Sentencing Act, when read in conjunction with those provisions not
affected by the amendments and the Sentencing Commission Comments, are in and of
themselves open to two interpretations: (1) that, although the enhancement and mitigating
factors were rendered advisory, a trial court still has no discretion to enhance a defendant’s
sentence without finding applicable one of the enhancement factors enumerated in Code
section 40-35-114 and (2) that a trial court is free to choose any sentence within the
appropriate range so long as the imposition of the sentence complies with the principles and
purposes of the Sentencing Act. The latter was first alluded to by our supreme court in State
v. Carter, 254 S.W.3d 355 (2008). For the reasons set forth below, it is my view that latter
interpretation is constitutionally required.

               In Blakely v. Washington, the Supreme Court, explaining the rule promulgated
in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), ruled that “the relevant
‘statutory maximum’ is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any additional findings.” Blakely
v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004). Although this court has
cited this exact holding numerous times, the legal posture of the present case brings the
Blakely language into sharper focus relative to enhancing a sentence without the use of a
statutory enhancement factor. In Cunningham v. California, an opinion wherein the Court
expressed approval of Tennessee’s 2005 amendments to the Sentencing Act, the Court
reiterated the principle first announced in Apprendi and held California’s sentencing scheme
invalid because “an upper term sentence may be imposed only when the trial judge finds an
aggravating circumstance.” Cunningham v. California, 549 U.S. 270, 288, 127 S. Ct. 856,
868 (2007).

                Given the Supreme Court’s bright line rule, the constitution requires the
interpretation of the Sentencing Act adopted by the majority opinion in this case. Indeed, the
Court specifically ruled that “‘merely advisory provisions,’ recommending but not requiring
‘the selection of particular sentences in response to differing sets of facts,’ all Members of
the Court agreed, ‘would not implicate the Sixth Amendment.’” Id. at 291-92, 127 S. Ct. at
870 (quoting United States v. Booker, 543 U.S. 220, 233, 125 S. Ct. 738, 750 (2005)). In its
opinion converting the United States Sentencing Guidelines from mandatory to discretionary,
the Court observed that “when a trial judge exercises his discretion to select a specific
sentence within a defined range, the defendant has no right to a jury determination of the
facts that the judge deems relevant.” Booker, 543 U.S. at 233, 125 S. Ct. at 750. Thus, to
withstand constitutional muster, the 2005 amendments must be interpreted to grant trial
judges the power “‘to exercise broad discretion . . . within a statutory range.’” Cunningham,
549 U.S. at 294, 127 S. Ct. at 876-77 (quoting Booker, 543 U.S. at 233, 125 S. Ct. at 750).1

               The Act need not, however, give trial judges completely unfettered discretion.
In Oregon v. Ice, the Supreme Court held that the Sixth Amendment does not prohibit a trial
judge from making findings of fact to impose consecutive sentencing. Oregon v. Ice, — U.S.
—, 129 S. Ct. 711, 719 (2009). The court observed that “state legislative innovations”
designed “to rein in the discretion judges possessed at common law” were permissible so
long as they did not permit the judge to make findings of fact constitutionally and
traditionally within the purview of the jury. Id. at 719. With this principle in mind, I believe
that any “enhancement factor” must be in some way expressed within the principles and
guidelines of the Sentencing Act to increase a defendant’s sentence. Furthermore, any
enhancement factor utilized by the trial court must be supported by proof in the record.
Accordingly, although the trial court is free to choose any sentence within the statutory range
even without finding the presence of an enhancement factor, it is not free to increase a
defendant’s sentence based upon the erroneous application of an enhancement factor. I
believe these rules guide the trial court’s discretion in a manner that does not run afoul of the
Sixth Amendment.

                                                            _________________________________
                                                            JAMES CURWOOD WITT, JR., JUDGE


        1
        “[W]hen considering the constitutionality of a statute, courts have a duty to adopt a construction
which will sustain the statute and avoid constitutional conflict if at all possible . . . .” State v. Taylor, 70
S.W.3d 717, 721 (Tenn. 2002).

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