         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs November 12, 2008

                     STATE OF TENNESSEE v. DARIUS JONES

                      Appeal from the Criminal Court for Shelby County
                       Nos. 01-04380-92    John P. Colton, Jr., Judge



                     No. W2008-00101-CCA-R3-CD - Filed June 16, 2009


The defendant, Darius Jones, was convicted of one count of first degree felony murder, four counts
of aggravated robbery, three counts of attempted especially aggravated robbery, two counts of
attempted aggravated robbery, and one count of aggravated burglary. He was sentenced to
consecutive sentences of life with the possibility of parole for the felony murder, ten years for each
of the aggravated robberies and attempted especially aggravated robberies, and four years for each
of the attempted aggravated robberies and the aggravated burglary, for an effective sentence of life
plus eighty-one years. On direct appeal, this court affirmed all of the defendant’s convictions and
his life sentence for the felony murder conviction but remanded for resentencing on the remaining
convictions in light of Blakely v. Washington, 542 U.S. 296 (2004). This court also ordered that the
trial court revisit the issue of consecutive sentencing and place its specific findings on the record.
After being resentenced to life plus fifty-four years, the defendant appeals again, arguing the trial
court erred in imposing consecutive sentences. Following our review, we conclude that the trial
court did not revisit the issue of consecutive sentencing and place specific findings in the record
regarding its determination. Accordingly, we remand this matter a second time for the court to do
so.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and
                                       Remanded

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and D.
KELLY THOMAS, JR., J., joined.

Michael E. Scholl, Memphis, Tennessee, for the appellant, Darius Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney
General; William L. Gibbons, District Attorney General; and P.T. Hoover, Assistant District
Attorney General, for the appellee, State of Tennessee.



                                             OPINION
                                                FACTS

        We discern the relevant factual history from our opinion on direct appeal. State v. Darius
Jones, No. W2003-02225-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 1111 (Tenn. Crim. App.
Dec. 15, 2004), perm. to appeal denied (Tenn. May 2, 2005). On September 29, 2000, Enrique Diaz
Castillo and some friends, Pablo Alvarado, Armando Becerra, and Hector Moreno, were playing a
card game at an apartment in Memphis when two masked African-American men entered the front
door and demanded money. The masked men walked into the kitchen of the apartment where Carlos
Diaz Ponce, Jose Jesus Romero Ponce, Hector Martinez Hernandez, Jose Gomez, and Alfonso
Enrique Becerra were drinking tequila and demanded money from them as well. The assailants shot
Armando Becerra, Hector Moreno, and Pablo Alvarado during the course of the robbery. Becerra
later died from his injury. Id. at *3-5.

        In addition to remanding for the trial court to reconsider the sentences in light of Blakely, this
court directed that “the trial court should revisit the issue of consecutive sentencing, placing its
specific findings on the record.” Id. at *36. The court also noted that it could not properly review
the issue without the presentence report, which was not included in the appellate record. Id.

       On remand, the trial court conducted a sentencing hearing on December 7, 2007. At the
hearing, the court sentenced the defendant to the minimum in the range for each offense for a total
sentence of life plus fifty-four years. Also at the hearing, the assistant district attorney stated that
“the Court’s already ruled on the consecutive/concurrent, so that’s not an issue at this point,” and
defense counsel noted, “Your Honor has given a ruling on the consecutive sentencing.”

                                              ANALYSIS

        The posture of this case is that, upon the first appeal, this court affirmed all of the defendant’s
convictions, remanded for the trial court to reconsider each of the individual sentences in light of
Blakely, and make specific findings as to why the sentences were ordered to be served consecutively.
Following the remand, the court sentenced the defendant, as to each conviction, to the minimum
sentence in the range. However, partly upon the misinformation from counsel, the trial court did not
conduct an additional sentencing hearing and make specific findings as to why the defendant should
serve his sentences consecutively. Accordingly, for a second time, we remand this matter for the
trial court to conduct a hearing and make specific findings as to why the defendant’s sentences
should be served consecutively.

        Moreover, our opinion on direct appeal specifically stated that we were unable to properly
review the sentencing because the presentence report was not included in the record, yet the
presentence report again was not included in the record on appeal. We direct that a copy of this
report be placed in the record.

       As an aside, the defendant also argues that Tennessee’s sentencing scheme with regard to
consecutive sentencing violates the Sixth Amendment in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). He argues that our supreme court’s decision in State v. Allen, 259 S.W.3d 671 (Tenn.

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2008), which concluded otherwise, should be overturned. However, it is not the province of this
court to overturn decisions of our supreme court.

                                        CONCLUSION

        Based upon the foregoing authorities and reasoning, the judgments of the trial court are
reversed and remanded for the trial court to conduct a hearing and make specific findings as to why
the defendant’s sentences should be served consecutively.


                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




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