        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on September 11, 2012

          STATE OF TENNESSEE v. ERIC DEMOND McCATHERN

                Appeal from the Criminal Court for Davidson County
                   No. 2009-C-2600     Cheryl Blackburn, Judge




              No. M2011-01612-CCA-R3-CD - Filed November 16, 2012




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

              I concur in the result in this case. My only departure from the majority opinion
stems from the majority’s use of abuse-of-discretion review of the sentence alignment issue.

              Tennessee Code Annotated section 40-35-401(d) provides:

              When reviewing sentencing issues raised pursuant to subsection
              (a), including the granting or denial of probation and the length
              of sentence, the appellate court shall conduct a de novo review
              on the record of the issues. The review shall be conducted with
              a presumption that the determinations made by the court from
              which the appeal is taken are correct.

T. C.A. § 40-35-401(d) (emphasis added). This subsection was not expressly obliterated by
State v. Bise, — S.W.3d —, 2012 WL 4380564 (Tenn. 2012). So, this statutory imperative
for de novo appellate review seems to survive and prevail when the Sixth Amendment
constraints do not apply. Those constraints do not apply to sentence alignment issues.
Oregon v. Ice, 555 U.S. 160, 172 (2009); State v. Allen, 259 S.W.3d 671, 688 (Tenn. 2008).
Thus, respectfully, until our supreme court tells us otherwise, I would apply the statutory
standard in reviewing the defendant’s complaint about consecutive sentencing.


             An opportunity arises here to point out that Code section 40-35-115 which
governs consecutive sentencing in general says that the “court may order sentences to run
consecutively if the court finds by a preponderance of the evidence” that any of the
enumerated circumstances apply. See T.C.A. § 40-35-115(b) (emphasis added). The use of
the word “may” typically suggests a measure of discretion, and one would typically assign
an abuse-of-discretion standard to the appellate review of a lower court’s discretionary act.
The word “may” appeared, however, in subsection -115(b) prior to the so-called Blakely
statutory sentencing revisions in 2005; yet, review of consecutive sentencing has generally
been undertaken pursuant to the de novo provision of section 40-35-401(d).

              That said, I do not see that a different standard of review changes the result in
the present case.




                                                    JAMES CURWOOD WITT, JR., JUDGE




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