         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 3, 2004

                  STATE OF TENNESSEE v. JAMES JOHNSON

                  Direct Appeal from the Criminal Court for Shelby County
                             No. 00-03451 Chris Craft, Judge



                   No. W2003-02009-CCA-R3-CD - Filed October 20, 2004


THOMAS T. WOODALL, J., concurring in part and dissenting in part.

        I concur with the majority opinion on all issues except that portion which modifies the
sentence to twenty-one years. I agree that the United States Supreme Court’s opinion in Blakely v.
Washington, 542 US ____, 124 S.Ct. 2531 (2004), questions the validity of Tennessee’s sentencing
scheme. I agree that prior to Blakely, this Court’s holding should be that enhancement factors (11)
and (17) could not be applied, but that the remaining enhancement factors, (2), (6), and (10), would
be applicable. However, under Blakely, it is clear that only evidence of prior convictions can be used
to enhance a sentence without a jury making a determination of the existence of an enhancement
factor, or where the jury determination is waived by the defendant, or where the application of
another enhancement factor is “admitted” by the defendant. The term “admitted by Defendant,”
while seemingly clear at first glance, has not been conclusively defined by judicial decision. The
United States Supreme Court in Blakely may have meant “admitted” in the context of a judicial
proceeding such as a guilty plea hearing with the solemnity of a guilty plea. Or, the Court possibly
meant an admission by a defendant in testimony at a sentencing hearing. Thus, the meaning of the
term “admitted by the defendant” is subject to debate, and is better left to appellate review when that
precise issue has been squarely addressed by a trial court and thereafter raised on appeal.

         I therefore, will agree with the majority that Defendant, in this case, did not “admit”
enhancement factors (6) and (10). My disagreement with the majority is that I feel the appropriate
disposition of this case is a remand for a new sentencing hearing wherein the trial court is instructed
to sentence Defendant using the only enhancement factor allowed, absent a jury determination, and
that is Defendant’s prior convictions. In this case, the trial court did an exceptional job in detailing
which enhancement factors it applied and the reasons therefore. Obviously, the trial court sentenced
Defendant in this case prior to the United States Supreme Court’s opinion in Blakely. However, it
appears that the trial court placed some weight on “criminal behavior by Defendant” to apply
enhancement factor (2), and this conduct was not based upon any prior conviction. While the
ultimate results might be the same, I feel that the holding in Blakely is of such significance that the
sentencing should be done by the trial court under the limitations provided in Blakely. Otherwise,
in my opinion, this Court is going beyond a de novo review and is conducting de novo sentencing.
I therefore respectfully disagree with my esteemed colleagues in the majority opinion as to the
manner of disposition of the sentence in this appeal, and would remand for a new sentencing hearing.

                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE
