         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 28, 2004

               STATE OF TENNESSEE v. DAVID LEE BELLAMY

                     Appeal from the Criminal Court for Sullivan County
                             No. S47,546   R. Jerry Beck, Judge



                    No. E2003-02936-CCA-R3-CD - Filed August 31, 2004




JAMES CURWOOD WITT , JR., J., concurring.

               In my view, we must recognize the possibility that Blakely v. Washington, ___ U.S.
___, 124 S. Ct. 2531 (2004), hampers a trial judge’s authority to make the fact findings necessary
to overcome the statutory presumption of favorable candidacy for alternative sentencing. See Tenn.
Code Ann. §§ 40-35-102(6) (2003) (establishing presumption of favorable candidacy for alternative
sentencing for certain mitigated or standard offenders convicted of felonies in Classes C through E),
-103(1) (2003) (establishing factual bases which may support a sentence of confinement).

                The defendant in the present case enjoyed the presumption of Code section 40-35-
102(6), and it behooved the trial court, in imposing a sentence of confinement, to offset the
presumption by finding any, or any combination, of the factual premises listed in section 40-35-
103(1), such as, the need to protect society from an offender with a long history of criminal conduct
or the ineffectiveness of prior non-confinement measures. See id. § 40-35-103(1)(A)(C) (2003).
That factual determination is in addition to the facts explicitly or implicitly established by the
defendant’s guilty plea.

                In Apprendi v. New Jersey, 530 U.S. 466, 120 S Ct. 2348 (2000), the Supreme Court
of the United States determined that the defendant’s right to jury trial was violated when the judge
imposed a sentence in excess of the maximum the judge could have imposed had he not made an
additional findings of fact, not encompassed by the jury’s verdict. Id. at 491-97, 120 S. Ct. at 2363-
68. In Blakely, the High Court explained that the “‘statutory maximum’ for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” Blakely, ___ U.S. at ___, 124 S. Ct. at 2537 (emphasis in
original). Thus, the maximum sentence the judge may order is not the maximum he or she may
impose “after finding additional facts, but the maximum [the judge] may impose without any
additional findings.” Id. (emphasis in original).
                Moreover, the High Court in Blakely did not speak in narrow terms that targeted
merely the length of an accused’s sentence; rather, it spoke in broad terms of the state’s power to
punish: “When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has
not found all the facts ‘which the law makes essential to the punishment,’. . . and the judge exceeds
his proper authority.” Id. (quoting 1 J. Bishop, Criminal Procedure, § 87, p. 55 (2d ed. 1872)
(emphasis added).

                Thus, Blakely seems to have impact on Tennessee’s scheme of presuming favorable
candidacy for alternative sentencing because whether to confine or not confine is, in a general sense,
an issue of punishment. See Schirro v. Summerlin, ___ U.S. ___, ___, 124 S. Ct. 2519, 2523-26
(2004) (principles of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), upon which Blakely
relies, do not apply “retroactively to cases already final on direct appeal”).

                That said, we know that the Sixth Amendment’s prohibition of increasing punishment
beyond the “statutory maximum” based upon an additional judge-made finding does not apply to
“the fact of a prior conviction.” See Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362. In the present
case, the defendant’s record of prior convictions is substantial. Although the pertinent factual
premise for overcoming the presumption of favorable candidacy for alternative sentencing addresses
prior “history of criminal conduct,” a standard that does not necessarily limit consideration to
conduct that resulted in convictions, the defendant does have an extensive record of prior
convictions. For that reason, I believe that the trial judge could have properly based his confinement
order on the record of prior convictions, and even if Blakely does apply to Code section 40-35-
102(6)’s presumption, the court’s use of sentencing factors other than prior criminal convictions
would be harmless beyond a reasonable doubt.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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