         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 22, 2004

   STATE OF TENNESSEE v. CHRISTOPHER DEMOTTO LINSEY
                   Appeal from the Circuit Court for Montgomery County
                        No. 4900006 John H. Gasaway, III, Judge



                     No. M2003-02420-CCA-R3-CD - December 30, 2004




JERRY L. SMITH , J., concurring.

        I concur with the majority opinion in all respects save its treatment of the question whether
the appellant waived his right to review alleged sentencing error vis-a-vis Blakely v. Washington,
542 U. S. ___, 124 S. Ct. 2531 (2004). First, a number of members of this Court, including the
author of this concurring opinion, have concluded that Blakely review is not waived because the
appellant failed to raise the issue at trial after Apprendi v. New Jersey, 530 U. S. 466, 120 S. Ct.
2348 (2000); was decided but before Blakely was decided, so long as the case was pending on direct
appeal at the time of the Blakely decision. See e.g. State v. Ricky Grover Aaron, No. M2002-02288-
CCA-R3-CD, 2004 WL 1533825 (Tenn. Crim. App. at Nashville, Jul. 8, 2004); State v. Charles
Benson, No. M2003-02127-CCA-R3-CD, 2004 WL 2266801 (Tenn. Crim. App. at Nashville, Oct.
8,2 004); State v. Julius E. Smith, No. E2003-01059-CCA-R3-CD, 2004 WL 1606998 (Tenn. Crim.
App. at Knoxville, July 19, 2004); State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD,
2004 wl 1607002 (Tenn. Crim. App. at Knoxville, July 19, 2004). These cases rest on the
proposition that Blakely establishes a new rule in this State with respect to sentencing, one that was
not dictated by the existing precedent of Apprendi. State v. Ricky Gover Aaron, No. M2002-02288-
CCA-R3-CD, 2004 WL 1533825 (Tenn. Crim. App. at Nashville, Jul. 8, 2004); State v. Charles
Benson, 2004 WL 2266801 at *8; see also Blakely v. Washington, 124 S. Ct at 2549-50 (O’Connor,
J. Dissenting).

       Moreover, our state supreme court, prior to Blakely had held that Tennessee’s sentencing
scheme was not compromised by Apprendi. Graham v. State, 90 S.W.3d 687, 692 (Tenn. 2002).
Our supreme court reasoned our sentencing scheme was not invalidated by Apprendi because
Tennessee’s sentencing scheme permitted judges to consider enhancement factors in determining
where along a legislatively prescribed spectrum of years within a range any given defendant should
be sentenced. Id. In contrast the sentencing scheme invalidated in Apprendi permitted judges to
determine the existence of facts that permitted the judge to sentence the defendant to a term greater
than the legislatively permitted maximum warranted simply by the jury’s verdict. The Washington
sentencing scheme invalidated in Blakely allowed judges to do exactly the same thing as in
Apprendi. This is why I think it is simply unfair to hold attorneys in Tennessee to the same level of
foresight as those in the State of Washington. Any good attorney in the State of Washington should
have seen that Apprendi called into question Washington’s sentencing procedure. The same cannot
be said for lawyers in Tennessee where our sentencing scheme itself is not like that in Apprendi and
our state supreme court had indicated that Apprendi did not affect Tennessee’s sentencing
procedures. Our sentencing procedures were affected by Blakely only because of the sweeping
definition given by the Supreme Court to the term “relevant statutory maximum for Apprendi
purposes” Blakely, 124 S. Ct. At 2537. The holding in Blakely sent shock waves through the legal
community throughout the nation. It is simply facile, in my view, to say that the invalidity of
Tennessee’s sentencing scheme should have been anticipated and any issue relating to it is therefore
waived if not raised after Apprendi.

        For the foregoing reasons I would find that the Blakely issue is not waived. However, as
noted in the principal opinion judicial consideration of the defendant’s record of criminal convictions
alone, which is permitted by Blakely, is sufficient to warrant the sentence imposed. I therefore
concur in the results reached by the Court on this issue and concur fully in all other aspects of the
Court’s opinion.
