         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs January 6, 2004

              STATE OF TENNESSEE v. RICKY GROVER AARON

                     Appeal from the Criminal Court for Davidson County
                            No. 99-D-2360    Walter Kurtz, Judge



                   No. M2002-02288-CCA-R3-CD - Filed December 13, 2004




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


         The majority concludes that modification of the appellant’s eleven-year sentence is required
in light of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004). I must respectfully dissent.

         Any sentencing challenge available to the appellant under Blakely is now waived because the
appellant did not object at trial to what he now contends is a constitutionally invalid sentencing
scheme. Tenn. R. App. P. 36(a). 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 appellant could have raised this issue under Apprendi
at the trial level as did the defendant Blakely; however, this was not done. The majority opines that
the supreme court’s holding in Graham v. State, 90 S.W.3d 687, 692 (Tenn. 2002), no perm. to app.
filed, excuses the appellant’s failure to raise this issue at the trial level. I disagree. Trial counsel may
not forgo an objection to a trial defect simply because he thought the objection would be futile.
Engle v. Isaac, 456 U.S. 107, 130 n.35, 102 S. Ct. 1558, 1573 n.35 (1982) (citations omitted).
Futility cannot constitute cause if it means simply that a claim was unacceptable to that particular
court at that particular time. Id. Even a state court that has previously rejected a constitutional
argument may decide, upon reflection, that the contention is valid. Id. at 130, 102 S. Ct. at 1573.
Certainly the practice of presenting previously rejected claims is clearly implanted in capital case
litigation in this state. I see no valid reason to carve out an Apprendi/Blakely exception to this
established practice. In United States v. Cotton, 535 U.S. 625, 631-34, 122 S. Ct. 1781, 1785-87
(2002), 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 used to enhance the defendant’s sentence was forfeited
because it was not raised at trial. 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)). Review and
modification of the appellant’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. 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 two statutory sentencing enhancers are
inapplicable: (1) “[t]he offense involved a victim and was committed to gratify the defendant’s
desire for pleasure or excitement,” and (2) “[t]he defendant abused a position of public or private
trust. . .” See Tenn. Code Ann. § 40-35-114(8), (16) (2003). First, assuming that the error is plain,
my review and that of my colleagues in the majority opinion concluded that the sentencing proof
supported application of factors (8) and (16). Again, I find the proof at trial supported these factors
and would have permitted a rational trier of fact to have found that the appellant abused a position
of trust and that the offense was committed to gratify the appellant’s desire for pleasure or
excitement. In view of these circumstances, the appellant 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 reasoning of the United States Supreme Court in Cotton is similar to, but
       not identical with, harmless error analysis. The court previously had explained that
       invariably to refuse to consider errors when no objection was made would be out of
       harmony with rules of fundamental justice. Accordingly, if the defendant points to
       plain error that affected substantial rights, then an appellate court has discretion to
       correct the error. Normally, although perhaps not in every case, the defendant must
       make a specific showing of prejudice to satisfy the “affecting substantial rights”
       prong of Rule 52(b). But such a showing is not itself sufficient. An appellate court



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       should not correct the error unless it “seriously affect[s] the fairness, integrity or
       public reputation of judicial proceedings.”

               It was this latter test the Supreme Court applied in Cotton, concluding that
       when the defendants did not object in the district court to the sentencing proceeding
       and did not attempt to dispute or controvert the evidence in support of a sentencing
       factor that justified the sentence imposed, and the evidence of the factor was
       overwhelming, then forfeiture applies and reversal on appeal is wholly unwarranted.

Sample, 122 Cal. App. at 219, 18 Cal. Rptr. at 619-20 (internal citations omitted).

        I conclude that application of enhancement factors (2), (8), and (16) is sufficient to permit
a sentence enhancement of three years beyond the presumptive minimum. For these reasons, I would
affirm the appellant’s sentence of eleven years.


                                                              ______________________________
                                                              David G. Hayes, Judge




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