Opinion
No. M2003-01732-CCA-R3-CD.
Filed February 8, 2005.
Appeal from Circuit Court for Putnam County, No. 02-0306.
ORDER
This matter is before the Court on a motion to rehear, pursuant to Rule 39 of the Tennessee Rules of Appellate Procedure. In his motion, the defendant challenges both the application of enhancement factors absent a jury finding, following the holding in Blakely v. Washington; and the rejection of three mitigating factors. Initially, we note that the latter is not cognizable in this proceeding; Tennessee Rule of Appellate Procedure 36(a) states: "A rehearing will not be granted to permit reargument of matters fully argued." In the instant case, the trial court's rejection of the mitigating factors in question was fully litigated on direct appeal; as such, our analysis will be confined to the applicability of the enhancement factors in light of the Supreme Court's holding in Blakely.
"Waivertc"
A necessary first step in our analysis is to address the State's argument that the defendant waived any Blakely challenge for failing to raise the issue earlier. I am in agreement with the opinion of Judge Woodall, which states:
Assuming that [the defendant] in this case had argued in the trial court, under Apprendi, that no enhancement factor other than prior convictions could be applied absent a jury finding, the trial court, and this Court (prior to the U.S. Supreme Court's opinion in Blakely) would have been obligated to reject that issue under Graham[v. State].
State v. Ricky Grover Aaron, No. M2002-02288-CCA-R3-CD. Therefore, because previous precedent required our courts to reject the contention ultimately adopted in Blakely, the defendant would have had no reason to challenge it before that case was decided. Thus, such challenges are not waived.
"Applicability of Blakely tc
We next analyze whether the enhancement factors were wrongfully applied, in light of the holding in Blakely. The defendant in the instant case was convicted of second-degree murder, a Class A felony, which carries a Range I penalty of between fifteen and twenty-five years. As required by statute, the trial court began with the midpoint of the range, and increased the sentence based upon the application of two enhancement factors: (10) the defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense; and (17) the crime was committed under circumstances under which the potential for bodily injury to a victim was great.
Based upon the trial court's finding that the enhancement factors were applicable, and that no mitigating factors applied, the defendant's sentence was increased to twenty-five years, the maximum sentence within the range. On appeal, this Court upheld the application of factor (10) and further noted that the "trial court gave a `great deal of weight'" to that factor in determining its sentence. This Court rejected the application of factor (17); however, we found that the trial court "could have used enhancement factor (11)," which states that "the defendant had no hesitation about committing a crime when the risk to human life was high." Thus, we upheld the enhanced sentence of twenty-five years. The appropriateness of the application of factors (10) and (11) must now be reviewed in light of the Supreme Court's holding in Blakely. Blakely requires that enhancement factors be either admitted by the defendant or found by a jury determination beyond a reasonable doubt. See Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Because neither factor meets the requirements of Blakely, both were improperly applied.
Our earlier opinion was rendered without regard to Blakely.
Conclusion
Because both factors were applied in violation of Blakely, the defendant's second-degree murder sentence is reduced from twenty-five years to twenty years, the presumptive minimum.
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.