State of Tennessee v. Timothy R. Bouton - Dissenting ( 2008 )


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  •              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    Assigned on Briefs October 30, 2007
    STATE OF TENNESSEE v. TIMOTHY R. BOUTON
    Appeal from the Criminal Court for Hamilton County
    No. 251419   Rebecca Stern, Judge
    No. E2006-02737-CCA-R3-CD - Filed February 8, 2008
    DAVID G. HAYES, J., dissenting in part.
    The majority, after finding plain error, remands for re-sentencing to conform with the
    requirements of Blakely v. Washington. I must respectfully dissent.
    After review, I am unable to conclude that plain error exists because (1) correction of the
    error is not “necessary to do substantial justice,” see Tenn. R. Crim. P. 52(b), and (2) the admission
    of Blakely error at the Defendant’s sentencing hearing, without objection, was based upon tactical
    reasons. See 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). For the first time on appeal, the Defendant,
    after two sentencing hearings, now argues that his sentence for vehicular homicide requires
    modification in light of Blakely v. Washington.
    On August 17, 2006, this court remanded the Defendant’s case to the trial court for a
    determination of whether sentencing would be governed by the pre-June 7, 2005 sentencing
    provisions or by the June 7, 2005 sentencing amendments, which were enacted by our legislature in
    express response to the requirements of Blakely v. Washington. As such, the sentencing benefits of
    Blakely were readily available to the Defendant during the sentencing hearing. On remand, the
    Defendant, as observed by the majority, “elected to be sentenced” under the pre-June 7, 2005
    sentencing provisions. We must presume that the Defendant’s selection was informed and made
    upon the advice of counsel, after weighing the pros and cons of the respective sentencing provisions.1
    Having elected to be sentenced under the pre-June 7, 2005 law, the trial court then applied the
    applicable law at the time under State v. Gomez, 
    163 S.W.3d 632
    (Tenn. 2005) (“Gomez I”).
    1
    The Defendant’s situation in this case is totally inapposite to that of the defendant Gomez in State v. Gomez,
    239 S.W .3d 733 (Tenn. 2007) (“Gomez II”), who, at the time of his sentencing, did not have the option to select from
    a constitutionally valid sentencing scheme as required by Apprendi v. New Jersey, 
    530 U.S. 466
    , 
    120 S. Ct. 2348
    (2000).
    It is clear that the Defendant could have raised Blakely error at the sentencing hearing, but
    he chose not to do so. He was given the option to choose the post-June 7, 2005 sentencing
    provisions, which complied with Blakely. Now, after the sentence is imposed, he argues that his
    sentence violates Blakely. For these reasons, I find that the error was knowingly waived for tactical
    reasons. See Tenn. R. App. P. 36(a) (relief may not be granted to a party who failed to take whatever
    action was reasonably available to prevent or nullify the harmful effect of an error). 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); see also Tenn. R. App. P. 13(b).
    An appellate court is permitted to correct plain 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. 220
    , 268, 
    125 S. Ct. 738
    , 769 (2005), wherein it opined that not “every
    [Blakely/Booker] appeal will lead to a new sentencing hearing. This 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.”
    Following de novo review, the record supports application of enhancing factors (2), previous
    history of criminal conviction; and (11), no hesitation about committing a crime when the risk to
    human life is high. See T.C.A. § 40-35-114(2), (11). The record does not support application of
    factor (14) because the Defendant was not on felony probation when the instant crimes were
    committed.2 See T.C.A. § 40-35-114(14). The majority rejects factor (11) not because it does not
    exist but because it violates Blakely. I find, however, under de novo review, that had a jury heard
    the proof with regard to factors (2) and (11), the jury’s sentencing verdict would have been the same
    as that of the trial court. Accordingly, the Defendant has failed to establish prejudice in order to
    satisfy the “affecting substantial rights” requirement of Rule 52(b). See United States v. Cotton, 
    535 U.S. 625
    , 633, 
    122 S. Ct. 1781
    , 1786 (2002).
    In sum, I am unpersuaded that the Defendant, who has already had two bites at the apple, by
    saying nothing, gets a third bite. Accordingly, I would affirm the Defendant’s sentence of ten years.
    In all other respects, I join with the majority.
    ___________________________
    DAVID G. HAYES, JUDGE
    2
    Under the 2007 amendments, factor (14) would be applicable.
    -2-
    

Document Info

Docket Number: E2006-02737-CCA-R3-CD

Judges: Judge David G. Hayes

Filed Date: 2/8/2008

Precedential Status: Precedential

Modified Date: 10/30/2014