Blakely claim in Tennessee

2010I see no valid reason to abandon well-established rules of appellate procedure to accommodate an Apprendi/Blakely violation, particularly in view of the Supreme Court’s recent decision in United States v. Cotton, 535 U.S. 625, 631-34 , 122 S. Ct. 1781, 1785-87 (2002), which held, post-Apprendi, that the defendant’s claim of right to a trial and finding by a jury on a fact to enhance the defendant’s sentence was forfeited because it was not raised at trial.

2010I see no valid reason to abandon well-established rules of appellate procedure to accommodate an Apprendi/Blakely violation, particularly in view of the Supreme Court’s recent decision in United States v. Cotton, 535 U.S. 625, 631-34 , 122 S. Ct. 1781, 1785-87 (2002), which held, post-Apprendi, that the defendant’s claim of right to a trial and finding by a jury on a fact to enhance the defendant’s sentence was forfeited because it was not raised at trial.

2007See id. at ___ (allowing plain error consideration where record did not reflect that defendant waived Blakely issue for tactical reasons).

2005An 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.

2005See id.

2005See id.

2011Moreover, despite appellate counsel’s failure to raise a Blakely claim, this court acknowledged on direct appeal that Gomez, 163 S.W.3d at 661 , which held that “Tennessee’s sentencing structure does not violate the Sixth Amendment,” was the law in Tennessee at the time of the Petitioner’s sentencing.

2011We note initially that the Blakely issue has been rendered moot by the Tennessee Supreme Court’s recent decision in State v. Gomez, 163 S.W.3d 632 , (Tenn.2005).

2008Our supreme court’s decision in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (“Gomez II”), overruling Gomez I, was released on October 9, 2007. 4 No waiver of a Blakely claim is included within the record before us. -9- 2005 sentencing act violated Gomez’s right to jury trial and that plain error review of a Blakely infraction was “necessary to do substantial justice.” See Tenn. R.

2008Our supreme court’s decision in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (“Gomez II”), overruling Gomez I, was released on October 9, 2007. 4 No waiver of a Blakely claim is included within the record before us. -9- 2005 sentencing act violated Gomez’s right to jury trial and that plain error review of a Blakely infraction was “necessary to do substantial justice.” See Tenn. R.

2008State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984).

2008State v. Ogle, 666 S.W.2d 58, 60 (Tenn.1984).

2005Consequently, we do not deem the failure to raise a Sixth Amendment objection to the trial court as it proceeded through sentencing to constitute forfeiture of a Blakely issue for purposes of appellate review. 823 N.E.2d at 690 (quotations and citations omitted).

2005Consequently, we do not deem the failure to raise a Sixth Amendment objection to the trial court as it proceeded through sentencing to constitute forfeiture of a Blakely issue for purposes of appellate review. 823 N.E.2d at 690 (quotations and citations omitted).

2004The United States Supreme Court has stated that “when a decision of this court results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review.” Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 2522 (2004).

1999See Schriro v. Summerlin, ___ U.S. ___, ___, 124 S. Ct. 2519, 2522 (2004) (stating that “[w]hen a decision of this Court results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review”).

2017This court dismissed the appeal, finding that “the interests of justice [did] not excuse the untimely filing of the notice of appeal” because the defendant had waived the Blakely issue by failing to raise it on direct appeal and because “the claim itself is without merit.” Id., slip op. at 3, 4.

2017Blakely violation When challenging the constitutionality of his sentences and the propriety of the sentences imposed in the absence of prior convictions, the defendant relies on Blakely v. Washington, 542 U.S. 296 (2004).

2011Thereafter, in Cunningham v. California, 549 U.S. 270 (2007), the United States Supreme Court extended the Blakely analysis to California’s determinate sentencing scheme.

2011Thereafter, in Cunningham v. California, 549 U.S. 270 (2007), the United States Supreme Court extended the Blakely analysis to California’s determinate sentencing scheme.

2008On this point, the United States Supreme Court, in adjudicating a Blakely claim, said that not every Blakely-deficient sentence “gives rise to a Sixth Amendment violation . . . [,nor will] every appeal . . . lead to a new sentencing hearing.” United States v. Booker, 543 U.S. 220, 268 , 125 S. Ct. 738, 769 (2005).

2008On this point, the United States Supreme Court, in adjudicating a Blakely claim, said that not every Blakely-deficient sentence “gives rise to a Sixth Amendment violation . . . [,nor will] every appeal . . . lead to a new sentencing hearing.” United States v. Booker, 543 U.S. 220, 268 , 125 S. Ct. 738, 769 (2005).

2005For these reasons, I cannot agree with the majority's application of plain error review to the defendants' Blakely claims. [6] The case the majority cites for the proposition that plain error is determined with reference to the state of the law at the time of appeal, Johnson v. United States, 520 U.S. 461, 468 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997), was a case applying a new rule retroactively and so does not support the majority's position.

2005For these reasons, I cannot agree with the majority's application of plain error review to the defendants' Blakely claims. [6] The case the majority cites for the proposition that plain error is determined with reference to the state of the law at the time of appeal, Johnson v. United States, 520 U.S. 461, 468 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997), was a case applying a new rule retroactively and so does not support the majority's position.

2019See Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim.

2016See Archer, 851 S.W.2d at 164 ; Potts, 833 S.W.2d at 62 .

2016See Archer, 851 S.W.2d at 164 ; Potts, 833 S.W.2d at 62 .

2013See Passarella, 891 S.W.2d at 627 .

2013See Passarella, 891 S.W.2d at 627 .

2010App. at Nashville, Nov. 30, 2004) (same).4 When reviewing a trial court error in a criminal case for harmlessness, the State must “prove that the . . . violation is harmless beyond a reasonable doubt.” Momon v. State, 18 S.W.3d 152, 167 (Tenn. 1999).

2008Gomez II, 239 S.W.3d at 740 ; see Schiefelbein, 230 S.W.3d at 150 n.1 (order on petitioner to rehear) (conducting plenary review of Blakely claim when defendant had raised issued at sentencing hearing). -3- Id. at 641-42 (footnotes omitted).

2008See State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (for error to be plain requires that the error waived was not waived for tactical purposes).

2005Specifically, the Defendant claims that: 1) his aggregate sentence of forty-one years is excessive and not reasonably related to the severity of his offenses, 2) the trial court erred in finding that any of the seven statutory criteria supporting consecutive sentencing applied to him, 3) the trial court’s own determination of factors supporting consecutive sentencing--found without a jury--constituted a Blakely violation, and 4) because the Defendant’s conviction for conspiracy to sell drugs “overlapped” his conviction for drug possession, he should not be subject to consecutive sentencing, ci

2005See, e.g., Gutierrez, 5 S.W.3d at 645 (examining sentence enhancement based on abuse of a position of private trust). [5] The majority suggests that it does not understand my concurrence in its Crawford analysis in light of my dissent from its Blakely analysis.