         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON

          STATE OF TENNESSEE v. ROBERT LEONARD MOSLEY

                    Direct Appeal from the Circuit Court for Henry County
                            No. 13474 C. Creed McGinley, Judge



                     No. W2004-00228-CCA-R3-CD - Filed April 19, 2005




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


       The majority concludes that modification of the defendant’s 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 defendant under Blakely is now waived because
the defendant did not object at trial to what he now contends is a constitutionally invalid sentencing
scheme. See Tenn. R. App. P. 36(a). Our rules of appellate procedure provide that an issue may not
be raised for the first time on appeal. Tenn. R. App. P. 36(a). I see no valid reason to carve out an
Apprendi/Blakely exception to this established rule. 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. Similarly, I find the Supreme Court’s ruling
in Cotton applicable to the review of Blakely claims raised on appeal in this State.

        Review and modification of the defendant’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. Because the issue is waived, it is reviewable on
appeal only under the discretionary authority of plain error. See Tenn. R. Crim. P. 52(b).

        An appellate court is permitted to correct plain error, or in this case Blakely error, only when
the error is “of such a great magnitude that it probably changed the outcome of the trial.” State v.
Adkisson, 899 S.W.2d 626, 642 (Tenn. Crim. App. 1994). Clearly, this was the import of the
Supreme Court’s recent holding in U. S. v. Booker, 543 U. S. _____, 125 S. Ct. 738, 769 (2005),
wherein it opined that not “every [Blakely/Booker] appeal will lead to a new sentencing hearing.
That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for
example, whether the issue was raised below and whether it fails the ‘plain-error’ test.”
        The record overwhelmingly supports application of enhancing factor (10), use of a firearm
during the commission of the offense. Indeed, on appeal, the defendant does not contest the fact that
he used a firearm during the attempted second degree murder of the victim. I find that under plain-
error review had a jury heard the proof with regard to factor (10), its verdict would clearly have been
the same. Moreover, I conclude that the defendant’s use of the weapon, coupled with his drug and
alcohol induced state at the time of its use and the manner in which the weapon was used, permits
enhancement of his sentence for attempted second degree murder by two years and enhancement of
his aggravated assault sentence by one year.

        The majority rejects enhancement factor (10), not because it does not exist, but because it
violates Blakely. As noted above, the Booker Court observed that this should not end the inquiry,
however, as the reviewing court is expected to determine whether the sentence fails the “plain-error”
test. The record demonstrates that the defendant has failed to establish prejudice in order to satisfy
the “affecting substantial rights” requirement of the “plain-error” test, Rule 52(b). See Cotton, 535
U.S. at 1786, 122 S. Ct. at 633 (affirming enhancement of the defendant’s sentence following plain
error analysis notwithstanding presence of Apprendi error). For these reasons, I would affirm the
sentences as imposed by the trial court.



                                                       _____________________________
                                                       David G. Hayes, Judge




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