Lead Opinion
OPINION
delivered the opinion of the court,
We granted this appeal to determine whether the defendants are entitled to relief on their claim that admission of testimony about a co-defendant’s oral statement violated their Sixth Amendment right to confrontation and whether the defendants’ sentences were imposed in violation of their Sixth Amendment right to trial by jury. We conclude that admission of testimony about a co-defendant’s oral statement violated the defendants’ Sixth Amendment right to confrontation because the defendants had no prior opportunity to cross-examine the co-defendant. See Crawford v. Washington,
On March 16, 1999, Carlyle & Company Jewelers, (“Carlyle & Company”), a retail store located in the Green Hills Mall of Nashville, put on a special one-day “trunk” showing of approximately 100 Rolex watches with an estimated value of $750,000. The sales event had been advertised throughout the Nashville area. The next day, March 17, 1999, security guards Roy Rogers (“Rogers”) and Eugene Na-gele (“Nagele”) arrived at the store shortly before 9:00 a.m. to retrieve and transport the watches to another store in the Nashville area for a similar event. For transport, the watches were stored in metal boxes, which were then stacked onto a luggage cart. Shortly after 9:00 a.m., Rogers and Nagele pushed the luggage cart from the store into the adjoining Green Hills Mall parking garage, where they had parked. Before they arrived at their vehicle, assailants attacked Rogers and Nagele from behind and stole the watches.
Deborah Sloan (“Sloan”) testified that she arrived with her two young children at Green Hills Mall between 9:10 and 9:15 a.m. on March 17, 1999. After parking in the garage adjoining the mall, but before exiting her minivan, Sloan “heard a bang, a loud bang, and a lot of running and rustling and things like that.” Turning toward this noise, Sloan saw one man lying on the ground, a second man “on his hands and knees fac[ing] away from [her],” and three other men “just running around[.]” Two of these men carried away the metal boxes containing the watches, and the third man “lean[ed] over beside the man who was lying on the ground and pick[ed] up a gun.” The three men then departed in a “very nice” “deep red” or “purplish-maroon” Chrysler minivan. Sloan described the three men as young, in their “twenties,” with “dark skin, dark hair,” and “fairly-average height and weight.” When shown photographic arrays prior to trial, Sloan identified Edwin Gomez (“Gomez”) and Jonathan S. Londono
Christina Hudson (“Hudson”), a Carlyle & Company employee, testified that she had arrived and parked in the Green Hills Mall parking garage shortly before 9:00 a.m. on the day of the robbery and shooting. While waiting in her car for a coworker to arrive, Hudson noticed a dark-skinned male, whom she described as either Hispanic or African-American, enter the passenger side of a purplish-colored minivan. When the man opened the van door, Hudson saw three other men slouched down in the back of the vehicle.
Barbara Franklin (“Franklin”), also an employee of Carlyle & Company, testified that two Hispanic men had come into the store on the afternoon before the robbery. Franklin recalled that the shorter of the two men had asked many questions about the watches and about which merchandise would remain in the store after the one-day event. This man had “spoke[n] English very haltingly” as if “English [were] not his first language,” and the taller man had not spoken at all.
After hearing news reports about the crime, Michelle Nicholson (“Nicholson”) contacted the police and told them that she had noticed a maroon van with Florida license plates traveling toward Nashville on Interstate 40 shortly after 8:00 a.m. on March 17, 1999. Nicholson observed the van “weaving in and out of traffic” and saw four men seated in the vehiclé, all of whom she described as Hispanic with “dark hair.” Nicholson recalled that the van later exited Interstate 440 onto Hillsboro Road going toward Green Hills Mall.
Based on Nicholson’s tip and information which witnesses had provided at the scene, investigators canvassed hotels and motels along the interstate highways, westbound to the Davidson County line, seeking information concerning Hispanic men traveling in a maroon van. On March 18, 1999, investigators discovered that four Hispanic men, driving a white van and a maroon van, had rented two rooms at the Howard Johnson’s Motel at Interstate 40 and Charlotte Pike. Security videotapes from the motel showed two men at the front desk, a maroon van and a white van in the motel parking lot, and persons coming and going from the vans. Although the tapes were not sufficiently clear to identify these persons, the front desk clerk at the motel, identified Londono
Investigators obtained additional evidence from the motel rooms. Inside the closet of Room 204, investigators found ammunition consistent with the bullet that struck the victim. Investigators recovered from inside this ammunition box a fingerprint, which later was matched to Londo-no’s right middle finger. Investigators found another fingerprint on the telephone extension in Room 204, which later was matched to Gomez’s right middle finger.
Telephone records revealed that a call had been made on March 14, 1999, from the motel to a pay telephone located outside a restaurant “[a]bout a block-and-a-half ’ down the street from the Green Hills Mall. Another call had been made on March 16, 1999, at 7:10 a.m. from the motel to a pay telephone located inside the mall, directly across from and facing Carlyle & Company. On March 15 and 16, 1999, a calling card had been used to place telephone calls from the motel room and from a Nashville restaurant to two different numbers in Bogota, Columbia. The same calling card was used on the afternoon of March 17, 1999, to place a call from Montgomery, Alabama, to Miami, Florida and was used again on the morning of March 18, 1999, to place a call to
Julie Jimenez (“Jimenez”), who had lived with Londono in Miami in the spring of 1999, testified that Londono and Gomez lived in the same apartment complex and that Gomez visited Londono’s apartment daily. Londono told Jimenez that he and Gomez were cousins. Before leaving town for “[s]even or ten days” in the spring of 1999, Londono told Jimenez that he was going somewhere to make some money, but he refused to tell her where he was going. Jimenez recalled that Londono left Miami with Gomez, Bryant Guartos (“Guartos”), Guartos’ wife Maria Sierra, and three other Hispanic men whose names Jimenez did not know. The group left Miami in two vehicles, a white van and a maroon van. Shortly before he returned to Miami, Londono telephoned Jimenez, telling her that he had been to Tennessee, that he had Rolex watches, and that he planned to give her a Rolex watch. Jimenez heard Gomez’s voice in the background during this conversation.
When Londono returned to Miami, he gave Jimenez some Nashville postcards and a report of the trip. Londono told Jimenez the group had stolen Rolex watches from a jewelry store in a shopping mall in Tennessee. Londono said the group had drawn their guns and instructed everyone to lie on the floor. When a security guard lying on the floor reached for his gun, Londono kicked the man and grabbed his gun. According to Londono, someone else shot the security guard because the security guard had seen Londo-no’s face.
Jimenez recalled that Londono received his share of the money from the sale of the watches a few days after returning to Miami. On April 4, 1999, Jimenez and Londo-no used the money for a shopping spree, spending approximately $3,000 cash on furniture, a television, and other items for Londono’s apartment. Concerned that someone would be looking for him, Londo-no insisted that Jimenez purchase everything in her name.
On April 25, 1999, Detective Gerard Starkey of the Miami-Dade Police Department arrested Londono on unrelated charges. Detective Starkey searched Lon-dono’s burgundy van and found a postcard of the Nashville riverfront area. Thereafter, Detective Starkey located Gomez at his apartment in the Fontainebleau Milton complex and arrested him on unrelated charges. Detectives found $19,600 in cash concealed between the kitchen counter and the dishwasher in Gomez’s apartment. Detectives also discovered a furniture receipt for $570, dated March 25, 1999, and three money transfer receipts, evidencing money transfers totaling $6,000 from Gomez and his roommate to persons in Bogota, Columbia. The telephone numbers of the persons to whom the money had been sent matched the telephone numbers to which calls had been placed from the motel and restaurant in Nashville. Two of the money transfers occurred on March 23, 1999. The date on the third receipt was indiscernible.
Detectives from Nashville questioned Londono and Gomez in Miami about their involvement in the March 17, 1999, robbery and shooting at Green Hills Mall. Both men denied ever being in Nashville. These detectives also interviewed Guartos in Miami, and he confessed to his involvement in the crime, providing an oral statement. Guartos later denied making this statement. However, at the Gomez-Lon-dono trial, the detectives were allowed to testify about what Guartos said to them about the crime. Detective Harold Haney testified as follows:
[Guartos] stated that he and others were in Nashville. They used two rented*640 vans which they got from someone in Miami. One was a wine colored or red. [sic] The other was white. They stayed at the Howard Johnson Motel and used two rooms. He and a woman took the seat out of the white van at the motel because they needed more room. He stated that they got two-hundred-thirty-thousand dollars ($230,000.00) for the watches from the robbery and he used his share of forty-thousand dollars ($40,-000.00) to buy his home in Miami.6
Gomez and Londono were indicted and tried on the following charges: Count I, conspiracy to commit aggravated robbery; Count II, felony murder of Rogers; Count III, especially aggravated robbery of Rogers; and Count IV, aggravated robbery of Nagele. The jury convicted the defendants of conspiracy, as charged in Count I. As to each of the remaining charges, the jury found the defendants guilty of the following lesser-included offenses: facilitation of felony murder, facilitation of especially aggravated robbery, and facilitation of aggravated robbery. The defendants each received the maximum sentence within the range for each conviction: six years for conspiracy, twenty-five years for facilitation of felony murder, twelve years for facilitation of especially aggravated robbery, and six years for facilitation of aggravated robbery. The trial judge ordered consecutive service of the sentences for an effective forty-nine year sentence.
Gomez and Londono appealed, and the Court of Criminal Appeals affirmed the judgment of the'trial court: Thereafter, this Court granted the defendants’ applications for permission to appeal.
II. Admission of Guarios’ Statement
A. Crawford v. Washington
As noted previously, Guartos, who had been separately tried and convicted before the Gomez-Londono trial, provided an oral statement to the police regarding the crime. Because Guartos invoked his Fifth Amendment privilege against self-incrimination at the Gomez-Londono trial, the prosecution sought to admit testimony as to his statement under the hearsay exception for statements against penal interest. See Tenn. R. Evid. 804(b)(3)
[Guartos] stated that he and others were in Nashville. They used two rented vans which they got from someone in Miami. One was a wine colored or red. [sic] The other was white. They stayed at the Howard Johnson Motel and used two rooms. He and a woman took the seat out of the white van at the motel because they needed more room. He stated that they got two-hundred-thirty-thousand dollars ($230,000.00) for the watches from the robbery and he used his share of forty-thousand dollars ($40,-000.00) to buy his home in Miami.
Immediately after each detective testified, the trial court provided a cautionary instruction, which limited jury consideration of Guartos’ statement to the issue of whether the conspiracy charged in Count I existed. The cautionary instruction expressly forbade jury consideration of Guar-tos’ statement as to Gomez’s and Londo-no’s participation in the conspiracy.
Both in his motion for new trial and on appeal to the Court of Criminal Appeals, Londono challenged the trial court’s ruling as violative of his Sixth Amendment right to confront the witnesses against him. The intermediate appellate court applied Ohio v. Roberts,
Less than one month later, however, the United States Supreme Court rendered its decision in Crawford v. Washington,
Wdiere nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — -as.does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.
Id. at 1374 (footnote omitted). The Court used “the term ‘interrogation’ in its colloquial, rather than any technical legal [] sense” and explained that a “recorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition.” Id. at 1365 n. 4.
Relying upon Crawford, both Londono and Gomez now argue that the introduction of Guartos’ statement violated their Sixth Amendment right of confrontation. The State acknowledges that, had Crawford been decided prior to the Gomez-Londono trial, Guartos’ statement would have been inadmissible; nonetheless, the State asserts that the defendants are not now entitled to relief on this basis. In particular, the State argues that Gomez either affirmatively waived or procedurally forfeited plenary appellate review of this issue. As to Londono, the State asserts that any error was harmless beyond a reasonable doubt.
We begin by accepting the State’s concession that Crawford would have precluded admission of Guartos’ statement had Crawford governed the trial court’s analysis of this issue. The statement, a product of police interrogation, qualifies as “testimonial” evidence, and the defendants had no prior opportunity to cross-examine Guartos. Thus, were Gomez and Londono tried today, Crawford would bar admission of Guartos’ statement. What is not clear, however, is whether Crawford entitles Gomez or Londono to relief in this appeal.
B. Griffith v. Kentucky
The answer to this question begins with Griffith v. Kentucky,
In mid-1985 the defendants in Griffith petitioned the Supreme Court for certiora-ri while their convictions were still pending on direct review. Griffith,
On June 2, 1986, the Supreme Court granted certiorari in Griffith on the limited issue of whether Batson could be applied retroactively to cases on direct appeal. Griffith,
Notably, each of the Griffith defendants had objected prior to Batson in the trial court to the prosecutor’s racially discriminatory exercise of peremptory challenges. Furthermore, the Griffith defendants had preserved their objections at each stage of their direct appeals, even though they clearly had failed to satisfy Swain’s prima facie showing requirement. Griffith,
Perseverance paid off for the Griffith defendants when the United States Supreme Court granted their certiorari peti
Having thus reviewed its factual and procedural background, we conclude that Griffith does not mandate plenary retroactive application of new rules to pending direct review cases without regard to whether the claim of error has been properly preserved. Instead, Griffith simply overruled precedent which had precluded retroactive application of new rules to pending direct review cases.
Furthermore, even those criminal defendants who properly preserve such issues are not automatically entitled to relief. After the United States Supreme Court concluded in Shea v. Louisiana,
C. Plain Error Review — Gomez
Gomez initially objected to the statement’s introduction, but his objection was not based on the Sixth Amendment. Guartos told the police that the group had “used two rented vans which they got from someone in Miami for twenty-five-hundred dollars ($2,500.00),” and Gomez objected to allowing the detectives to testify about the amount paid for the rented van, in particular, the words “for twenty-five-hundred dollars ($2,500.00).” The prosecution agreed not to introduce testimony about this portion of the oral statement. In responding to questions from the trial court, Gomez confirmed that his objection had been limited as described above and also confirmed that his objection was withdrawn in light of the prosecution’s willingness not to introduce that testimony. Gomez did not challenge the statement’s admission in his motion for new trial or in his appeal to the Court of Criminal Appeals. Having failed to preserve the issue in the courts below, Gomez is limited in this Court to seeking relief via plain error review.
Rule 52(b) of the Tennessee Rules of Criminal Procedure provides that “[a]n error which has affected the substantial rights of an accused may be noticed at any time, even though not raised in the motion for a new trial or assigned as error on appeal, in the discretion of the appellate court where necessary to do substantial justice.” (emphasis added); see also Tenn. R.App. P. 36(b) (“A final judgment ... shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.”) (emphasis added). Plain error review extends only to a clear, conspicuous, or obvious error which affects the substantial rights of the defendant. United States v. Olano,
The substantive standards for plain error review are difficult to satisfy. An appellate court will reverse for plain error only if:
(a) the record ... clearly establishes] what occurred in the trial court;
(b) a clear and unequivocal rule of law [has] been breached;
(c) a substantial right of the accused [has] been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e) consideration of the error is “necessary to do substantial justice.”
State v. Smith,
Consideration of factor (d) indicates that Gomez is not entitled to relief. The record clearly establishes what occurred in the trial court: Gomez withdrew his objection to Guartos’ statement, and he did so for tactical reasons.
D. Harmless Error Analysis or Structural Error — Londono
As previously noted, Londono has consistently argued that the admission of tes
To answer this question, we must first determine whether Crawford errors are structural errors that defy harmless error analysis or are instead trial errors that are subject to harmless error analysis. The historical development of the harmless error doctrine and its general application to constitutional errors has been thoroughly documented by this Court. See, e.g., Momon v. State,
The United States Supreme Court and this Court have held that violations of the Confrontation Clause are subject to harmless error review. See, e.g., Coy v. Iowa,
Furthermore, we conclude that the Crawford error in this case is harmless beyond a reasonable doubt. Guartos’ statement did not directly implicate Londono or Gomez. Immediately after each detective testified about the statement, the trial court provided a cautionary instruction to the jury, limiting the jury’s consideration of the testimony about the statement to the issue of whether the conspiracy existed and forbidding its consideration as to whether a particular defendant joined in the charged conspiracy. Jurors are presumed to follow the instructions of the trial court. State v. Robinson,
III. Sentencing Issues
Gomez and Londono have asserted in this Court that their sentences were imposed in a manner that violated their Sixth Amendment right to a trial by jury.
A. Plenary Versus Plain Error Review
The defendants did not raise this constitutional challenge at their April 4, 2002, sentencing hearing or in their motions for new trial, nor did they raise it in the Court of Criminal Appeals. The defendants first raised this constitutional challenge in this Court.
First, we are of the opinion that Blakely did not announce a new rule. Admittedly, the United States Supreme Court has not squarely addressed this issue. However, the Court has suggested that Blakely was applying a previously recognized principle of law, rather than announcing a new rule. For example, in United States v. Booker, — U.S. -,
Accordingly, we reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.
Booker,
Although some other courts and jurists have concluded that Blakely announced a new rule, the United States Supreme Court is the final arbiter of this issue. Cf. Beard v. Banks,
Nonetheless, even had Blakely announced a new rule of law, our conclusion that the defendants are not entitled to plenary appellate review of this issue would have been the same. As previously explained, Griffith mandates plenary review in direct review, “pipeline” cases only if the issue to which the new rule relates has been preserved for review.
Although the defendants are correct in pointing out that we rejected a similar constitutional challenge in Graham, this fact does not excuse the defendants’ failure to raise their Sixth Amendment claim. To the contrary, Graham illustrates that Tennessee defendants could have asserted Blakely-type challenges long before the United States Supreme Court decided Blakely. To the extent that the defendants are suggesting that Graham deterred them from raising their Sixth Amendment claim, they are factually mistaken because Graham was released seven months after the defendants were sentenced and six months after the trial court denied the defendants’ motions requesting a new trial.
Furthermore, had Graham been released before the defendants were sentenced, our conclusion would be the same. At the risk of stating the obvious, this Court is not the final arbiter of the United States Constitution. See, e.g., Seals v. State,
Moreover, nothing in our decision in Gh-aham precluded the defendants from raising Blakely-type challenges in future cases. Admittedly, Graham’s existence meant that such claims would likely have been unsuccessful, but the defendants could have raised and preserved such issues for review by this Court and by the United States Supreme Court. Indeed, a defendant is never precluded from raising an issue simply because a prior decision has rejected it. As our previous discussion of Griffith makes clear, courts often reconsider arguments that have been previously rejected. See also Engle v. Isaac,
As previously explained, this Court will reverse for plain error only if
(a) the record ... clearly establishes] what occurred in the trial court;
(b) a clear and unequivocal rule of law [has] been breached;
(c) a substantial right of the accused [has] been adversely affected;
(d) the accused did not waive the issue for tactical reasons; and
(e)consideration of the error is “necessary to do substantial justice.”
Smith,
In this case, factor (a) is satisfied. The record clearly establishes what occurred in the trial court. Gomez and Londono were convicted of: (1) conspiracy to commit aggravated robbery, a Class C felony which carries a three to six year sentence; (2)
C. Plain Error Review — Violation of a Clear and Unequivocal Rule of Law
Having determined that the record clearly establishes what occurred in the trial court, we must next determine whether the defendants’ sentences were imposed in violation of a “clear and unequivocal rule of law.” As previously explained, plain error review extends only to clear, conspicuous, or obvious error. Olano,
Although this Court has not previously addressed the constitutional claim raised by the defendants, in many decisions addressing this issue, the Court of Criminal Appeals has concluded that Tennessee’s sentencing procedures violate the Sixth Amendment right to jury trial as explained in Blakely. In this appeal the State agrees with the defendants that the presumptive sentence established by Tennessee Code Annotated section 40-35-210(c) (2003) is the maximum sentence which a judge can constitutionally impose because, in the State’s view, the presumptive sentence is the only sentence authorized by the jury verdict. Moreover, because the trial judge in this case found enhancement factors (other than the fact of the defendants’ prior convictions) and selected a sentence other than the presumptive sentence, the State concedes that the defendants’ sentences were imposed in violation of the Sixth Amendment right to a jury trial. According to the State, the validity and correctness of its concession is supported by the United States Supreme Court’s decision in Booker.
Before accepting a concession, this Court independently analyzes the underlying legal issue to determine whether the concession reflects a correct interpretation of the law. See, e.g., State v. Ely,
Thus, we must conduct an independent analysis to determine whether the sentencing procedure violated a “clear and unequivocal rule of law.” We begin this analysis with Apprendi, in which the defendant was convicted of second-degree unlawful possession of a firearm, an offense carrying a maximum penalty of ten years imprisonment.
In Blakely, the Court applied and expounded upon Apprendi At issue in Blakely was the State of Washington’s “determinate sentencing scheme.”
In concluding that Washington’s sentencing procedure violated Blakely’s Sixth Amendment right to a jury trial, the Court emphasized that the “deliberate cruelty” finding had been based upon facts that were neither admitted by Blakely nor found by a jury beyond a reasonable doubt. The Court pointed out that the guilty plea authorized the Washington trial judge to impose a sentence within the standard range of forty-nine to fifty-three months. Absent the finding of “deliberate cruelty,” the trial judge could not have imposed the exceptional ninety month sentence. Id. at 2537. The Court rejected the State’s argument that the jury verdict
Our precedents make clear, however, that the “statutory maximum” for Ap-prendi 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. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. 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. (citations omitted). Accompanying this explanation of “statutory maximum” was a discussion of the nature and limits of the Sixth Amendment:
First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. It increases judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence — and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury.
Id. at 2540 (emphasis in original). Blakély thus drew a constitutionally significant distinction between judicial factfinding in a .“determinate” sentencing scheme and judicial factfinding in an “indeterminate” sentencing scheme. See footnote 18, supra. The Court’s holding in Booker focuses to an even greater degree upon this distinction.
In Booker, the Court addressed the question specifically left unanswered in Blakely — whether the Federal Sentencing Guidelines (“Guidelines”) violate the Sixth Amendment right to jury trial. Booker was convicted of possession with intent to distribute at least fifty grams of cocaine base, an offense statutorily punishable by ten years to life in prison. Booker,
In United States v. Fanfan, the case consolidated with Booker, the defendant was convicted of conspiracy to distribute and to possess with intent to distribute at least 500 grams of cocaine, offenses statutorily punishable by a sentence of five to forty years. Booker,
The United States Supreme Court agreed with the lower courts’ conclusions that application of the Guidelines to impose upon Booker and Fanfan a sentence in excess of that authorized by the jury’s verdict violated the Sixth Amendment right to a jury trial. In so holding, the Court observed that “there is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures” at issue in Blakely. Booker,
If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act] the provisions that make the Guidelines binding on district judges; it is that- circumstance that makes the Court’s answer to the second question presented possible. For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.
Id. at 750 (emphasis added). Thus, Booker instructs us that the Sixth Amendment is not implicated by a sentencing procedure which uses non-binding, advisory enhancement factors to inform and to guide the judge’s selection of an appropriate sentence in the statutory range authorized by the jury’s verdict. The remedial majority opinion, authored by Justice Breyer, confirms that allowing a judge to find and to consider enhancement factors in a non-mandatory, discretionary sentencing system does not violate the Sixth Amendment. Indeed, the remedy applied in Booker requires district judges to do so in all future cases. Id. at 764 (excising the statute making the Guidelines binding on sentencing courts and the statute requiring de novo review of sentences on appeal, and stating that “[w]ith these two sections excised (and statutory cross-references to the two sections consequently invalidated), the remainder of the Act satisfies the Court’s constitutional requirements.”).
Admittedly, Blakely itself includes language which can be broadly construed to require the result the defendants seek. We are unwilling to adopt that broad reading of Blakely. Blakely must be read in light of Booker. Not only has Booker provided further insight as to the constitutionally significant differences between “determinate” and “mandatory” sentencing schemes versus “indeterminate” and “non-mandatory” sentencing schemes, this Court has a duty to resolve doubts in favor of the constitutionality of statutes. In our view, Booker confirms that Tennessee’s sentencing structure differs markedly and in constitutionally significant ways from the Guidelines and the New Jersey and Washington statutes at issue in Apprendi and Blakely.
The Tennessee Criminal Sentencing Reform Act of 1989 (“Reform Act”) (1) divides felonies into five classifications according to the seriousness of the offenses; (2) separates offenders into five classifications according to the number of prior convictions; (3) assigns a span or range of years for each class of crime committed by each class of offenders; and (4) employs enhancement and mitigating factors to assess the definite sentence within each range. Tenn.Code Ann. §§ 40-35-105-114 (2003); State v. Jones,
(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) The presentence report;
(3) The principles of sentencing19 and arguments as to sentencing alternatives;
*659 (4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the enhancement and mitigating factors ...; and
(6) Any statement the defendant wishes to make in his own behalf about sentencing.
TenmCode Ann. § 40-35-210(b) (2003); Ashby,
Unlike the statutes at issue in Blakely and Booker, a judicial finding of an enhancement factor in Tennessee does not affect the range of punishment to which a defendant is exposed. Tennessee Code Annotated section 40-35-210(c) through (e) provides:
(c)The presumptive sentence for a Class B, C, D and E felony shall be the minimum sentence in the range if there are no enhancement or mitigating factors. The presumptive sentence for a Class A felony shall be the midpoint of the range if there are no enhancement or mitigating factors.
(d) Should there be enhancement but no mitigating factors for a Class B, C, D or E felony, then the court may set the sentence above the minimum in that range but still within the range. Should there be enhancement but no mitigating factors for a Class A felony, then the court shall set the sentence at or above the midpoint of the range. Should there be mitigating but no enhancement factors for a Class A felony, then the court shall set the sentence at or below the midpoint of the range.
(e) Should there be enhancement and mitigating factors for a Class B, C, D or E felony, the court must start at the minimum sentence in the range, enhance the sentence within the range as appropriate for the enhancement factors, then reduce the sentence within the range as appropriate for the mitigating factors. Should there be enhancement and mitigating factors for a Class A felony, the court must start at the midpoint of the range, enhance the sentence within the range as appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating factors.
Thus, even after an enhancement factor is found, this statute affords to the judge discretion to choose an appropriate sentence anywhere within the statutory range, including the presumptive minimum sentence within the range. For Class B, C, D or E felonies, section -210(d) provides specifically that, if there are enhancement but no mitigating factors, the trial judge “may set the sentence above the minimum in that range but still within the range.” Tenn.Code Ann. § 40-35-210(d) (2003)
Section -210(e), similarly prescribes use of an advisory, discretionary procedure when a judge finds both enhancement and mitigating factors. The statute provides that the judge “must start at the minimum sentence in the range, enhance the sentence within the range as appropriate for the enhancement factors, then reduce the sentence within the range as appropriate for the mitigating factors.” (Emphasis added.) Although this section includes mandatory language, (“must” and “shall”), read in context this mandatory language loses its mandatory effect because this section directs the judge to enhance and to mitigate the sentence “as appropriate,” thereby affording to the judge discretion to select an appropriate sentence anywhere within the range.
Thus, the finding of an enhancement factor simply does not mandate an increased sentence. Instead, the Reform Act thus provides what Blakely and Booker describe as an “indeterminate,” non-mandatory, advisory sentencing scheme which merely requires judges to consider enhancement factors, along with other information, when exercising their discretion to select an appropriate sentence within the statutory range. Unlike the Washington sentencing statutes and the Guidelines, the Reform Act requires the trial judge to consider enhancement and mitigating factors to aid the trial judge in exercising discretion and choosing a sentence within the statutory range, but the Reform Act does not mandate an increased sentence upon a judge’s finding of an enhancement factor. Rather, upon finding an enhancement factor under the Reform Act, a judge has the discretion to select a sentence at or above the presumptive minimum. Imposition of a sentence above the presumptive sentence represents an exercise of the judge’s discretion.
The dissent, the defendant, and the State point out that when no enhancement or mitigating factors are found, section 40-35-210(c) mandates imposition of the presumptive sentence. Although we do not disagree with this proposition, we also do not view it as dispositive of the constitutional issue. Unlike the “standard range” statute in Blakely, section -210(c) does not lower the ceiling for felony sentences, nor is it like the statute in Apprendi which exposed the defendant to a punishment greater than that otherwise legally prescribed. Section -210(c) operates solely to limit the sentencing court’s discretion in selecting a penalty within the available range by mandating imposition of the presumptive sentence when there “are no enhancement or mitigating factors.” Tenn. Code Ann. § 40-35-210(c) (2003). The dissent contends that section -210(c) “fixes a determinate point, not a range and the trial judge has no discretion to deviate from this determinate point unless he or she makes additional findings that enhancement factors are present.” The dissent’s observation about how the statute functions is accurate. However, the dissent misinterprets the constitutional relevance of this observation.
The United States Supreme Court explained in Booker that “when a trial judge exercises his [or her] discretion to select a specific sentence within a defined range,
Considering this point, we conclude that the defendants’ sentences were not imposed in violation of the Sixth Amendment. The Reform Act authorizes a discretionary, non-mandatory sentencing procedure and requires trial judges to consider the principles of sentencing and to engage in a qualitative analysis of enhancement and mitigating factors. The Reform Act does not include a formula, a grid, or any other mechanical process. It instead sets out broad sentencing principles, enhancement and mitigating factors, and a presumptive sentence, all of which serve to guide trial judges in exercising their discretion to select an appropriate sentence within the range set by the Legislature. Under the Reform Act, the finding of an enhancement factor does not mandate an increased sentence. The Reform Act does not provide a system which requires or even allows judicial power to “infringe[ ] upon the province of the jury.” Blakely,
For. these reasons, we are unable to accept the State’s concession that the de
IV. Conclusion
Because the defendants failed to properly preserve their constitutional claims of error, we have reviewed these claims for plain error and have determined that the defendants are not entitled to relief. Accordingly, the defendants’ convictions and sentences are affirmed. It appearing that the defendants are indigent, costs of this appeal are taxed to the State of Tennessee.
E. RILEY ANDERSON, J., filed a concurring and dissenting opinion, in which ADOLPHO A. BIRCH, JR., J., joined.
Notes
. The assailants also stole Nagele’s Colt pistol valued at $1,500.
. She also identified co-defendant Bryant Guartos ("Guartos”), who was tried separately and convicted of conspiracy to commit aggravated robbery, felony murder of Rogers, especially aggravated robbery of Rogers, and aggravated robbery of Nagele.
.Franklin later identified co-defendant Guar-tos as the shorter man, but she failed to identify the taller man who had accompanied Guartos.
. The clerk also identified Guartos but was unable to identify Gomez.
. Investigators also discovered Guartos's fingerprint on the telephone inside this-room.
. Detective Norris Tarkington summarized Guartos' statement as follows:
[Guartos] stated that he and the others were in Nashville. They stayed at the Howard Johnson’s and they ... came to Nashville in two rented vans. One was a wine color or red color and the other one was white, and they took the seat out of one of the vans because they needed more room, and he stated they sold the watches for two-hundred-thirty-thousand dollars ($230,000.00) in Miami, and his proceeds from that, his take of that was forty-thousand dollars ($40,000.00).
. Rule 804(b)(3) provides, in pertinent part:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
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(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.
Rule 804(a) delineates the situations in which a declarant is “unavailable as a witness.” The defendants have never contended that the trial court erred by finding Guartos unavailable as a witness for purposes of Rule 804(b)(3).
. See Allen v. Hardy,
. Our reading of Griffith is supported by a more recent case which recognizes the important distinction between issues that have been preserved and issues which have not been preserved. The issue in United States v. Cotton,
While not controlling the proper application of new federal constitutional rules, we note that this Court has regularly limited retroactive application of new rules to only those cases pending on direct review in which the issue has been timely raised and properly preserved. See, e.g., Hill v. City of Germantown,
Despite the dissent’s assertions to the contrary, Farris and Adams are excellent illustrations of this regular practice. Parris involved several defendants, but, in the trial court, Mr. Farris had challenged only the first paragraph of a statute which, in other sections, required jury instructions on parole eligibility. Although this Court ultimately invalidated that portion of the statute which required jury instructions on parole eligibility, the statutory provision Mr. Farris had challenged remained valid after this Court’s decision. After this Court denied Mr. Farris relief, he filed a petition to rehear, arguing that he had timely raised and properly preserved his constitutional challenge. This Court denied rehearing, explaining, "[t]his Court operates on the basis of errors assigned for our consideration and we have neither the disposition nor the duty to search the record and decide cases and controversies on the basis of unassigned error.”
. As the State points out, the United States Supreme Court has drawn a distinction between "forfeiture” and "waiver.”
Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right.” Whether a particular right is waivable ... [and] whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake.
Olano,
. Neither defendant contends that the impp-sition of consecutive sentences violated their right to a jury trial.
. Gomez raised the issue by filing a supplement to his application for permission to appeal. Londono has included a discussion of this issue in his initial brief.
. This Court has endeavored to resolve expeditiously the important issues presented in this appeal. As stated above, Blakely was issued on June 24, 2004. On August 2, 2004, the United States Supreme Court granted certiorari in United States v. Booker, 04-104 and United States v. Fanfan, 04-105. On September 2, 2004, Gomez filed a motion to supplement authorities, relying upon Blakely. On October 4, 2004, the United States Supreme Court heard argument in Booker and Fanfan. Also on October 4, 2004, this Court granted the defendants' applications for permission to appeal and expedited these Nashville cases for hearing in Knoxville during the January 2005 court session. This Court heard oral argument on January 4, 2005, and the United States Supreme Court issued its decision in Booker and Fanfan on January 12, 2005. Gomez, Londono, and the State were then given until February 14, 2005 to file supplemental briefs addressing Booker, and until February 24, 2005 to file replies to these supplemental briefs.
. The dissent asserts that Blakely must have announced a new rule because "Booker, which was merely an application of Blakely, stated a new rule....” In our view, the new rule of Booker was the Court’s holding that the Federal Sentencing Guidelines violated the Sixth Amendment, the Court’s excision of the mandatory portions of the Guidelines, and the Court's application of the excised Guidelines. See Humphress v. United States,
. See, e.g., State v. Carruthers,
. Limiting the defendants to seeking relief via plain error review, rather than affording them plenary appellate review, is not at all dependent upon our view that Blakely did not announce a new rule. Defendants ordinarily are not entitled to plenary appellate review unless claims have been timely raised and properly preserved. Likewise, a defendant is not entitled to plenary appellate review of a claim based upon a new rule unless the defendant has timely raised and properly preserved the issue to which the new rule relates. The dissent’s quarrel with our application of this rule to the defendants' Blakely claim is curious, given the dissenting justices’ concurrence with our application of this rule to Gomez’s Crawford claim. On the one hand, the dissenting justices conclude that plenary appellate review applies to the defendants’ unpre-served Sixth Amendment claims because Blakely announced a new rule; on the other hand, the dissenting justices conclude that plain error review applies to Gomez’s unpre-served Confrontation Clause claim, which is based upon the new rule announced in Crawford. The dissenting justices thus express fun
Furthermore, as a practical matter, defendants raising Blakely claims are not entitled to relief, regardless of whether plenary or plain error review is applied. As hereinafter explained, the Tennessee Criminal Sentencing Reform Act does not authorize a sentencing procedure which violates the Sixth Amendment right to jury trial. We recognize that some defendants will choose to raise and to pursue Sixth Amendment Blakely-type claims in the hope that the United States Supreme Court will ultimately disagree with our determination of this issue, and nothing in this decision precludes them from doing so.
Finally, we are constrained to point out that, in addition to being irrelevant in this direct review appeal, the dissent’s suggestion that a petitioner will be able to rely upon Blakely as a ground for reopening a post-conviction petition under Tennessee Code Annotated section 40-30-117(a)(1), is erroneous. Reopening is appropriate under section - 117(a)(1), "[i]f the claim is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required.” As to whether "retrospective application ... is required,” Tennessee Code Annotated section 40-30-122 provides that
[a] new rule of constitutional criminal law shall not be applied retroactively in a post-conviction proceeding unless the new rule places primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or requires the observance of fairness safeguards that are implicit in the concept of ordered liberty.
This standard would not permit, much less require, Blakely’s retroactive application in a post-conviction proceeding. Indeed, applying a standard virtually identical to section -122, the United States Supreme Court has already concluded that the new rule announced in Ring requiring jury findings of aggravating circumstances in capital cases does not qualify for retroactive application to sentences that were final before Ring was decided. See Schri-ro v. Summerlin,
. The dissent faults us for creating what the dissent terms "a new course” by which “all decisions are now retroactive, whether they constitute a new constitutional rule or not. The only question is whether or not the defendant properly preserved the issue, entitling him to plenary review, or whether the defendant failed to preserve the issue, entitling him only to plain error review.” This course is not new. As explained in section II. B of this opinion, as to direct review cases, the only relevant question since Griffith is whether the defendant is entitled to plenary appellate review or plain error review. New rules apply to cases pending on direct review when the new rule is announced. However, like other unpreserved claims of error, when a defendant fails to raise and to preserve the claim to which the new rule relates, the defendant is limited to seeking relief via plain error review. Johnson v. United States, supra, is an excellent illustration of this principle. Johnson involved a federal perjury prosecution in which the element of materiality had been decided by the judge rather than submitted to the jury. The defendant failed to object to this procedure at trial because "near-uniform precedent both from this Court [the United States Supreme Court] and the Court of Appeals” had held that the element of materiality could be decided by the judge. Johnson,
. Booker,
. As to sentencing principles, the statute provides:
(1) Sentences involving confinement should be based on the following considerations:
(A) Confinement is necessary to protect society by restraining a defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the offense or confinement is particularly suited to provide an effective deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant;
(2) The sentence imposed should be no greater than that deserved for the offense committed;
(3) Inequalities in sentences that are unrelated to a purpose of this chapter should be avoided;
(4) The sentence imposed should be the least severe measure necessary to achieve the purposes for which the sentence is im: posed;
(5) The potential or lack of potential for the rehabilitation or treatment of the defendant should be considered in determining the sentence alternative or length of a term to be imposed....
(6) Trial judges are encouraged to use alternatives to incarceration that include requirements of reparation, victim compensation and/or community service.
Tenn.Code Ann. § 40-35-103 (2003). Finally, the Act directs that an appropriate sentence is one which is “justly deserved in relation to the seriousness of the offense,” is “fair and consistent [with other similar cases],” and "prevent[s] crime and promote[s] respect for the law.” Tenn.Code Ann. § 40-35-102 (2003); State v. Ashby,
. In response to the United States Supreme Court's decision in Blakely, Governor Brede-sen appointed a “Task Force on the Use of Enhancement Factors in Criminal Sentencing.” After many meetings, this Task Force recently issued a Report which includes recommendations for statutory amendments. This decision should not be construed as a comment upon the work or recommendations of the Task Force. Rather, this decision is limited to the issues presented by the case on appeal, and in resolving these issues this Court must afford to the sentencing statutes a presumption of constitutionality. Determining whether the recommendations of the Task Force should be adopted in whole or in part is a matter for the Governor and the General Assembly.
Concurrence Opinion
concurring in part and dissenting in part.
I agree that neither defendant is entitled to relief under Crawford v. Washington,
In my view, the presumptive sentences set forth in Tennessee Code Annotated section 40-35-210 established a fixed point for the defendants’ sentences such that the upward departure, based solely on findings made by the trial judge, was imposed in violation of Blakely and therefore violated the defendants’ Sixth Amendment right to trial by jury. I also disagree with the majority’s conclusions that Blakely did not announce a new rule and that we should strictly apply issue preservation principles when determining whether a defendant has preserved a Blakely claim. I would therefore vacate the defendants’ sentences and remand to the trial court for resen-tencing in light of Blakely and Booker.
I. Constitutionality of the Tennessee Reform Act
I begin my analysis by examining the three recent United States Supreme Court cases which drastically altered the legal landscape by determining that, when a trial judge imposes a sentence in excess of the maximum authorized by the jury’s verdict alone, the sentence violates the Sixth Amendment right to trial by jury.
In Apprendi v. New Jersey,
A.
In Apprendi the defendant pled guilty to a crime statutorily punishable by up to ten years in prison. The trial judge, however, made additional findings and sentenced the defendant to twelve years — two years outside the maximum statutory range.
The court reasoned that the Sixth Amendment jury trial guarantee, coupled with the Due Process protections of the Fourteenth Amendment, “indisputably entitle[s] a criminal defendant to ‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Id. at 477,
The court explained that the New Jersey sentencing scheme at issue in Appren-di whereby the judge could enhance sentences by finding additional elements not found by the jury, was incompatible with the Sixth Amendment:
The historic link between verdict and judgment and the consistent limitation on judges’ discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.
Apprendi,
Although Apprendi’s limitation on judicial fact-finding called into question the ability of judges ever to make findings relevant to sentencing, the court seemed to limit Apprendi only two years later, in Harris v. United States,
The two cases that very recently addressed that open question were Blakely and Booker. In discussing Blakely and Booker, it is critical to understand the sentencing systems that were at issue in those two cases. Booker dealt with the Federal Sentencing Guidelines. See
Prior to Blakely and in light of Harris, Apprendi was generally understood only to prohibit a judge from departing beyond the upper limit of a statutorily-defined range based on facts not found by a jury. Apprendi did not appear to affect sentencing schemes where a judge made findings that moved a defendant out of the base range or from one “mini-range” to another, as long as the sentence did not go outside the statutory range. See Simpson v. United States,
The Blakely decision, released in June 2004, held that — contrary to the widely-held interpretation of Apprendi — because the base range or standard range created by a sentencing scheme constitutes the “statutory maximum” under Apprendi, “the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely,
Blakely thus radically constricted the ability of judges to go outside the narrow basic range of punishment specified by the legislature.
This year’s Booker decision reaffirmed that this language in Apprendi was still good law after Blakely, clarifying that “when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” Booker,
Having explained the holdings of Ap-prendi, Blakely, and Booker, I now discuss why, in my view, Booker does not salvage the constitutionality of the Tennessee Reform Act.
B.
Relying on Booker, the majority concludes that Tennessee’s Reform Act provides the sort of indeterminate, discretionary range within which the Supreme Court has held that a judge may exercise discretion. The majority concludes that Tennessee Code Annotated section 40-35-210 “merely requires judges to consider enhancement factors ... but [it] does not mandate an increased sentence upon a judge’s finding of an enhancement factor.”
I agree with the majority that, on its face, Booker made the constitutionality of the Tennessee Reform Act a closer question than it was considering Blakely alone. In applying Booker to the statutory ranges set forth in the Tennessee Reform Act, however, the majority ignores the fact that the Reform Act sets a “presumptive sentence” for each class of felony within each range. TenmCode Ann. § 40-35-210(c) (“The presumptive sentence for a Class B, C, D and E felony shall be the minimum sentence in the range if there are no enhancement or mitigating factors. The presumptive sentence for a Class A felony shall be the midpoint of the range if there are no enhancement or mitigating factors.”). The presumptive sentence is comparable to the base range of the federal
As we have often observed, Tennessee’s “presumptive sentences” are not merely advisory. Rather, “[t]he minimum sentence is the presumptive sentence. The sentence imposed cannot exceed the minimum sentence in the range unless the State proves enhancement factors.” State v. Jones,
Thus, the effect of the mandatory presumptive sentence is to create a determinate sentence, not a range. In this respect, the Tennessee Reform Act is even more restrictive than the Washington sentencing scheme or the Federal Sentencing Guidelines, because rather than creating a base or standard range, the Reform Act authorizes only a single sentence based on the jury’s verdict — the minimum sentence, in the case of Class B, C, D, or E felonies, and the midpoint of the range in the case of Class A felonies. Under Tennessee’s Reform Act, the jury verdict alone does not allow “a trial judge [to] exercise[ ] his discretion to select a specific sentence within a defined range.” Booker,
Because enhancement factors must be factors separate from the elements of the crime, see TenmCode Ann. § 40-35-114, they are by definition facts not found by the jury and are therefore invalid under Apprendi and Blakely, even as clarified in Booker. The only exception, of course, is prior convictions, which need not be found by the jury in order to be used as enhancement factors. Apprendi,
My view of the United States Supreme Court’s reasoning in Booker differs from the majority’s.' The majority reads Booker to permit any range-based sentencing scheme as long as the scheme does not require a judge to increase a defendant’s sentence based upon a finding of an enhancement factor. Because Tennessee’s Reform Act does not mandate, but merely permits, an increased sentence based upon a judge’s finding of an enhancement factor, the majority concludes that it is constitutional. However, the “mandatory” facet of the Federal Sentencing Guidelines to which the court in Booker objected was not the fact that the Guidelines mandated upward departures based upon particular judicial findings of fact. Rather, it was the fact that no departures could be justified based on the jury verdict alone, because the jury verdict alone authorized only the base range sentence. ‘Whether the judicially determined facts require a sentence or merely allow it,- the verdict alone does
The Washington state scheme struck down in Blakely was effectively the same as Tennessee’s Reform Act. It mandated a “standard range” based upon the jury’s verdict and then permitted, but did not require, a judge to enhance the defendant’s sentence in response to judicially-determined enhancement factors. Critically, Booker did not change Blakely’s holding that the Washington state scheme was unconstitutional. Indeed, Booker noted that “there is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue” in Blakely. Booker,
In sum, the Tennessee Reform Act does not provide the sort of open, indeterminate sentencing range envisioned in Booker. Rather, as this Court has consistently interpreted it, the Reform Act sets forth a presumptive sentence and constrains a judge’s discretion in departing from that sentence. Therefore, the Reform Act does not pass constitutional muster under Ap-prendi, Blakely, and Booker because it permits a trial judge to impose a sentence in excess of the maximum sentence authorized by the jury verdict alone.
The majority’s conclusion that the Reform Act is a discretionary sentencing procedure with “merely advisory” statutory enhancement factors may come as a surprise not only to both parties in this case but also to trial and appellate judges throughout the state. For fifteen years, we have emphasized that the purposes of the Reform Act included consistency and uniformity in sentencing. TenmCode Ann. §§ 40-35-102, -103. Trial courts have been admonished to adhere to the procedures of the Reform Act and to make detailed findings of fact whenever applying enhancement factors to enhance a sentence. The majority’s conclusion that the application of these principles' has been merely advisory and fully discretionary throughout the entire sentencing range is
In the case before us, the record reveals that the defendants’ sentences were enhanced by fifteen years, or 44%, based on facts not found by a jury. The sentencing judge relied on a number of factors in enhancing both defendants’ sentences, to wit: the trial judge found that both defendants had prior criminal convictions; that both were leaders in the commission of the offense; that, as to three of the four counts, the amount of property taken was great;, and that, as to Count Two, the defendants possessed or employed a firearm. Tellingly, the trial judge acknowledged that her decision that the defendants were leaders in the offense was not consistent with the jury’s verdict. She stated, however, that “we must keep in mind that enhancing factors must only be proven by preponderance of the evidence, not beyond a reasonable doubt, so that even though the jury’s verdict might have been different,” she was electing to apply the enhancement factor. This discrepancy between a jury’s findings and a judge’s findings is precisely what Apprendi and Blakely held that the Sixth Amendment is intended to guard against.
The trial judge noted that she was giving great weight to the prior criminal convictions, but did not make sufficient findings to reveal the portion of the enhancement attributable to the prior convictions. The judge applied the enhancement factors to impose the maximum sentence for each count and ordered that the sentences run consecutively, for an effective total sentence of forty-nine years. By applying the Reform Act to sentence the defendants to a total of fifteen years more than the maximum sentences authorized by the jury’s verdict, the trial judge violated the defendants’ Sixth Amendment rights. Because, as I explain below, I would hold that Blakely announced a new rule and that the defendants timely raised Blakely claims such that they are entitled to review, I would vacate their sentences and remand for re-sentencing.
II. New Rule
In Griffith v. Kentucky,
Following Apprendi, it was widely understood that the relevant “statutory maximum” was the full statutory range of punishment available for a particular offense. See, e.g., Simpson,
Apprendi was decided by a 5-4 split, with the Justices filing five separate opinions. The court itself seemed to struggle with the precise scope of Apprendi as is evidenced by the four separate opinions filed in Harris only two years later and the lack of a controlling rationale in Harris. See
In constricting the definition of statutory maximum, “Blakely radically reshaped our understanding of a critical element of criminal procedure.” Smylie v. State,
Additionally, in this year’s decision applying Blakely to the Federal Sentencing Guidelines, the Supreme Court itself stated that it was announcing a new rule. United States v. Booker,
I agree with the majority that when the United States Supreme Court announces a new constitutional rule, that rule is retroactively applicable to all cases on direct review. Griffith,
I part ways with the majority, however, when it reaches its subsequent analysis. After the majority concludes that Blakely did not announce a new rule, it concludes that defendants are nevertheless entitled to plain error review. Moreover, the majority suggests that defendants who preserved an issue below — even if that issue is not the subject of a new constitutional rule — are still entitled to plenary appellate review. See maj. op. at 651 (“[Bjecause the defendants failed to raise and preserve for review their Sixth Amendment challenge, the defendants are limited to seeking relief via plain error review.”).
III. Preservation of Issue for Review
The majority concludes that courts need only apply new rules to cases on direct review (so-called “pipeline” cases) if the issue to which the new rule pertains was properly preserved for review. Although I agree with the proposition that plenary retroactive application of Blakely should be tempered by application of our prudential issue preservation rules, I do not agree with the majority’s restrictive view of what is necessary to preserve a Blakely claim.
The U.S. Supreme Court has indicated that application of prudential review doctrines such as waiver and forfeiture will not run afoul of Griffith. Booker,
Although the majority asserts that “this Court has regularly limited retroactive application of new rules to only those cases pending on direct review in which the issue has been timely raised and properly preserved,” majority op. at n. 9, a closer examination of the only two criminal cases cited by the majority reveals that our past practice has been to take a flexible approach to issue preservation requirements. In Farris v. State,
We recognize that our own rules, reflective of the case law of the state, require specificity in assignments. They also demand equitable and practical interpretation- We are not willing to penalize a criminal defendant for an incomplete and/or inaccurate assignment. Especially would we not do this in a case wherein this very Court has been sharply divided, with at least four different views, all supportable by recognized legal principles, but only one of which was able to command even a bare majority.
Adams,
Moreover, a hard-line application of preservation principles to Blakely claims may have the unintended consequences of burdening defense counsel with raising numerous speculative claims and burdening trial and appellate courts with disposing of them. As the Indiana Supreme Court recently observed in Smylie,
A very tough Blakely preservation rule would prompt practitioners to fill trial time and appellate briefs with all imaginable contentions, contrary to the general advice that it is good practice to focus on the most viable issues. It would also drastically alter the burden imposed on counsel as to what consti*671 tutes effective assistance to their clients.... An attorney is not required to anticipate changes in the law and object accordingly in order to be considered effective.... [A] trial lawyer or an appellate lawyer would not be ineffective for proceeding without adding a Blakely claim before Blakely was decided. Consequently, 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.
As another practical point, I note that we have implicitly held that Blakely/Ap-prendi claims are cognizable on post-conviction review pursuant to Tennessee Code Annotated section 40-30-117 (2003). See Graham,
Because I believe that both equity and practical considerations weigh in favor of a more lenient standard, I would require only that a petitioner have made some objection to his sentence at trial and have timely raised the Blakely claim on appeal. See Smylie, 823 N.E.2d at 690 (“[I]t does not ask too much that a criminal defendant have contested his or her sentence on appeal, even if the Blakely element of that contest is added later....”). In my view, such a rule would strike a sound balance between fairness and equity on the one hand, and gatekeeping and consistency concerns on the other.
IV. Application to Defendants’ Sentences
The record reveals that, during the sentencing hearing, both defendants argued against application of the enhancement factors and against consecutive sentencing. The judge enhanced the defendants’ sentences using four different enhancement factors. The only factor that may be constitutionally applied without being found by a jury is the enhancement for prior convictions. The judge indicated that she was “going to give great weight” to the enhancement factor based on prior criminal conduct, but did not indicate the degree to which the increased sentences were based on that enhancement factor.
Both defendants argued to the Court of Criminal Appeals that their sentences were excessive and the Court of Criminal Appeals decided those claims on the mer
Conclusion
Although I concur in the majority opinion as to its resolution of the defendants’ Crawford issues, I disagree with the majority’s discussion and resolution of the Blakely issues. I therefore dissent. I would hold, first, that Blakely invalidates sentences under Tennessee Code Annotated section 40-35-210 to the extent that a judge enhances the sentence beyond the presumptive sentence based on facts, other than the fact of a prior conviction, not found by a jury; second, that Blakely announced a new rule; and third, that defendants on direct review are entitled to raise Blakely claims as long as they challenged their sentences below and as long as they timely added a Blakely claim to their appeal. I would therefore vacate Gomez’s and Londono’s sentences and remand to the trial court for appropriate resentencing.
I am authorized to state that Justice BIRCH joins with me in this concurring and dissenting opinion.
. Washington's Sentencing Reform Act is embodied in the state code. See Wash. Rev.Code
. At the time we decided Jones, the presumptive sentence for all felonies was the minimum within the range. The statute has since been amended to make the presumptive sentence for Class A felonies the midpoint of the range rather than the minimum. 1995 Pub. Acts. c. 493, § 1, eff. July 1, 1995; 1998 Pub .Acts, c. 914, § 1, eff. May 7, 1998.
. This is the solution proposed by the Governor’s Task Force on the Use of Enhancement Factors in Criminal Sentencing.
. Moreover, Booker explained that in a true range scheme, a judge may consider any factors he or she deems relevant in assessing a sentence. However, under the Tennessee Reform Act, the judge’s discretion is restricted in a number of ways. First, "[t]he State has the burden of proving any enhancement factors.” Gutierrez,
. The majority suggests that it does not understand my concurrence in its Crawford analysis in light of my dissent from its Blakely analysis. The majority, however, errs in treating cases that do not announce "new rules” the same as cases that do announce "new rules.” Moreover, unlike the majority, I would hold that the Blakely issue has been sufficiently preserved for the reasons explained in part III of my dissent. For these reasons, I cannot agree with the majority’s application of plain error review to the defendants’ Blakely claims.
. 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,
. The majority argues that, based on cases decided in the United States Supreme Court, Apprendi and Blakely will not apply retroactively to cases on collateral review. While I agree that the U.S. Supreme Court has so held, the fact remains that we considered such an argument on the merits in Graham. Although the majority states I have cited no authority for my position, the majority does not address Graham. Moreover, as we have often observed, this Court is free to interpret our State’s statutes and Constitution as affording greater protection than does federal law. See, e.g., State v. Harris,
Lead Opinion
ORDER DENYING PETITION FOR REHEARING
Petitions for rehearing have been filed by Edwin Gomez, Jonathan Londono, the Attorney General and Reporter,
The arguments advanced in the petitions to rehear were considered and rejected by a majority of this Court in its original opinion. We remain convinced that Blakely must be read in light of Booker. To do otherwise would not serve to “preserve Sixth Amendment substance.” Booker,
If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act] the provisions that make the Guidelines binding on district judges; it is that circumstance that makes the*673 Court’s answer to the second question presented possible. For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.
Id. at 750 (citations omitted). The Court harmonized the Federal Sentencing Guidelines with the Sixth Amendment by applying in Booker a remedy which created a discretionary sentencing scheme. Id. at 764. We are not persuaded that the differences between the Reform Act and the post-Booker Federal Sentencing Guidelines are constitutionally significant. If the Sixth Amendment countenances a sentencing scheme that permits judges to find facts relevant to sentencing and affords judges discretion to select a sentence anywhere within a statutory range, even in the absence of enhancing facts, we are unable to conclude that the Sixth Amendment forbids a sentencing scheme in which a state legislature limits judicial discretion by designating the presumptive sentence that must be imposed when a judge finds no enhancement or mitigating factors.
The petitions for rehearing are DENIED.
Justice Anderson and Justice Birch continue to adhere to the position stated in the original dissenting opinion, and on those grounds, would grant the petitions to rehear.
Janice M. Holder and William M. Barker, JJ., Concurring.
E. Riley Anderson and Adolpho A. Birch, Jr., JJ., Dissenting.
. The Attorney General seeks rehearing only as to Part III.C of the majority opinion and argues that the Tennessee Criminal Sentencing Reform Act of 1989 ("Reform Act”) violates the Sixth Amendment.