         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE

                STATE OF TENNESSEE v. JOHN C. WALKER, III

                                 Circuit Court for Putnam County
                                           No. 02-0306



                    No. M2003-01732-CCA-R3-CD - Filed February 8, 2005




                                               ORDER


DAVID G. HAYES, Judge, dissenting.


       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). 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 defendant 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 cert. filed,
excuses the defendant’s failure to raise this issue at the trial level. I disagree. The holding in Blakely
was premised upon federal constitutional law, and, although the claim was rejected by the
Washington Supreme Court, Blakely ultimately obtained success in his federal appeal. The
defendant Graham could have pursued federal review like Blakely but chose not to do so. Counsel
has a duty to use legal process for the fullest benefit of the client’s cause, including the assertion of
a good faith argument for reversal of existing law. Tenn. Sup. Ct. R. 8, RPC 3.1. Indeed, this is
precisely what Blakely’s counsel did. 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. 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
Supreme Court’s expectations of appellate review under Blakely, in this case and in numerous other
cases on appeal in this state, have clearly not been met as the analysis fails to consider “whether the
issue was raised below and whether it fails the ‘plain-error’ test.” In sum, the analysis falls short of
a prudential review.

         As found in the direct appeal of this case, the record supports application of enhancing factors
(10), that the defendant possessed or employed a firearm during the commission of the offense, and
(17), that the crime was committed under circumstances under which the potential for bodily injury
to a victim was great. The majority now rejects factors (10) and (17), not because they do not exist,
but because they violate Blakely. I find, however, under plain-error review, that had a jury heard the
proof with regard to factors (10) and (17), its verdict would have been the same. Accordingly, 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 trial court’s imposition of the twenty-five-year sentence.



                                                         _____________________________
                                                         David G. Hayes, Judge


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