         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

          STATE OF TENNESSEE v. HOWARD WALTER THOMAS

                       Appeal from the Criminal Court for Knox County
                         No. 71670 Richard R. Baumgartner, Judge



                     No. E2003-02090-CCA-R3-CD - Filed March 30, 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.”
        As applied to the respective conviction identified in the opinion, the record overwhelmingly
supports a finding of enhancement factor (2), prior criminal history; factor (4), the offense involved
more than one victim; factor (6), exceptional cruelty; factor (9), the offenses were committed during
probationary periods; factor (10), use of a firearm; and factor (21), juvenile adjudication which
would constitute felony conviction if juvenile had been an adult. Indeed, on appeal, the defendant
does not contest the facts supporting these enhancing factors. I find that under plain-error review had
a jury heard the proof with regard to factors (4), (6), (9), (10) and (21), its verdict would have been
the same.

        The majority rejects factors (4), (6), (9), (10), and (21), not because they do not exist, but
because they violate 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 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). The distinction between harmless error
analysis and error assigned on appeal cannot be overlooked. See U. S. v. Monroe, 353 F.3d 1346
(11th Cir. 2003). It is the defendant, not the State, who has the burden of establishing how the
Blakely error changed the outcome of the sentencing decision. See id. Clearly, the defendant has
not met this burden. For these reasons, I would affirm the respective sentences as imposed by the
trial court.



                                                       _____________________________
                                                       David G. Hayes, Judge




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