State vs. Michael Flamini
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 24, 2009 Session
STATE OF TENNESSEE v. MICHAEL FLAMINI
Appeal from the Criminal Court for Knox County
No. 81913B
Richard Baumgartner, Judge
No. E2008-00418-CCA-R3-CD - Filed May 26, 2009
A Knox County Criminal Court jury convicted the defendant, Michael Flamini, of two counts of
aggravated robbery and one count of burglary. After merging the aggravated robbery convictions,
the trial court imposed concurrent, Range II sentences of 14 years for aggravated robbery and three
years for burglary. In this appeal, the defendant claims that the trial court erred in the jury selection
process and by denying a defense motion for continuance, that the evidence was insufficient to
support his conviction of burglary, and that the sentence violates the ruling in State v. Gomez, 239
S.W.3d 733 (Tenn. 2007). Because the evidence was insufficient to support the conviction of
burglary, that conviction is reversed, and the charge is dismissed. The conviction of aggravated
robbery and the trial court’s judgment in all other respects is affirmed.
Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed and
Dismissed in Part
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and NORMA MCGEE OGLE , J., joined.
Gerald L. Gulley, Jr., Knoxville, Tennessee (on appeal); Michael Rothenberg, Sandy Springs,
Georgia (at trial); and Steven Edward Sams, Knoxville, Tennessee (at trial), for the appellant,
Michael Flamini.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Takisha Fitzgerald, Assistant District
Attorney General, for the appellee, the State of Tennessee.
OPINION
The convictions in this case arose as part of a string of crimes committed by the
defendant, Michael Flamini, and his co-defendant, David Kiersey. Charged in a 22-count indictment
with various theft and robbery offenses, the pair was tried jointly by a Knox County Criminal Court
jury. The jury convicted the defendant, charged in only four of the 22 counts, of the March 4, 2005
aggravated robbery of Sarah Rutledge and the burglary of the Pilot/Breadbox convenience store
where she worked.
At trial, Ms. Rutledge testified that on March 4, 2005, she was working at the
Pilot/Breadbox convenience store on Tazewell Pike in Knoxville when a man “walked in, came in
the building. He had a gray T-shirt wrapped around his arm, and he pointed it, like there was a
weapon in it, and basically told [her] to give him the money and to make it fast and hurry.” Ms.
Rutledge identified the man from a photographic lineup as the defendant. She stated that she
believed the man had a weapon under the shirt “[b]ecause he pointed it and acted like it was a
threatening movement.” Ms. Rutledge gave the defendant the money from the cash register, and the
defendant left.
During cross-examination, Ms. Rutledge stated that the defendant’s hand was
wrapped in the T-shirt when he entered the store and that he lifted it and “pointed it like . . . . kids
playing gun.” She testified that the Pilot/Breadbox was open to the public 24 hours a day and that
the store kept no list of persons prohibited from entering. Ms. Rutledge agreed that “people just kind
of walk in and out as they please.”
Knoxville Police Department Officer Chris Bell, who investigated the robbery at the
Tazewell Pike Pilot/Breadbox, recalled that the security camera video from the store showed “[a]
white male, nothing covering his face, walk[] in with a grayish t-shirt over his right hand. He leaned
up against the counter with the t-shirt pointed in her direction. Asked her for the money, and she
gave him the money and he leaves the store.” According to Officer Bell, shortly after the robbery,
“there was a vehicle pursuit” on Tazewell Pike that “was terminated because of the recklessness of
the pursuit” but not before officers “were able to obtain a tag number for the van.” The van was
registered to the defendant. Using the National Crime Information Center database, the officer
obtained a photograph of the defendant and placed it into a photographic lineup that he showed to
Ms. Rutledge. Officer Bell recalled that Ms. Rutledge “immediately” identified the defendant as the
perpetrator of the March 4, 2005 robbery.
Officer Bell also participated in the interview of the defendant following his arrest.
The defendant told Officer Bell that he did not “really know” why he had wrapped the t-shirt around
his hand prior to entering the Pilot/Breadbox but admitted that it was “[m]aybe to make her think”
he had a weapon. The defendant could not recall the exact amount of money taken during the
robbery, but he told Officer Bell that he had used the money to purchase crack cocaine.
I. Jury Selection
The defendant first contends that the trial court erred “when it failed to order the
production of a new jury panel after the original panel lacked enough jurors . . . , when it added
jurors who had been rejected from another court’s jury panel . . . , and when it did not allow the
defendant to have additional peremptory challenges or challenges for cause.” He also claims that
his “due process rights were violated when he was denied access to the list of juror names and to the
jury questionnaire after requesting access to same.” The State submits that the defendant waived our
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consideration of these issues by failing to lodge a contemporaneous objection to the procedure
utilized by the trial court. We agree with the State.
A. Juror Selection Process
The defendant asserts that the process utilized by the trial court to secure the jury in
this case violated those statutes governing jury selection as well as the Rules of Criminal Procedure.
The record establishes that on the first day of trial the trial court noted that some of the individuals
summoned for that day’s venire had not arrived as scheduled and that, because trials were scheduled
to begin that day in the other two divisions, selecting a jury could be problematic. Indeed, by the
end of the day, with no panel members remaining, only 11 jurors had been seated. At that point, the
trial court stated its intention to keep the 11 seated jurors and select the remaining juror and alternate
from those panel members who arrived the following day. Defense counsel then made the following
statement:
You had said at the beginning of jury selection that if we so decided
that we didn’t want to go to trial, we should use all nine of our
strikes, and that would be the end of it. So we’ve done that, and it
may have altered the way we might have picked our jury. So I
wanted to put it on the record that it would be our position that we
start over with a completely new panel tomorrow, or at such time as
a completely new panel is coming.
The trial court responded,
Well, if indeed, your intent was to not go to trial, I think that that’s an
improper motive for you to have with regard to picking a jury. I think
we’ve given you the opportunity to strike the people that you felt
should not be on this case. We’ve given you nine full strikes. I
intend to pick a jury from the remaining pool tomorrow morning.
On the following morning, the trial court repeated its intention to choose the remaining juror and
alternate from the panel members that had arrived that morning. The court reiterated that the
defendant had used all of his allotted challenges and noted, “This is no different than having recessed
for an hour at lunch and come back and had additional jurors to continue the selection process.” The
trial court then placed the names of six additional panel members into a bowl and drew two at
random. The voir dire continued without further interruption.
The record is clear that, despite his brief protestation regarding the fact that the trial
would continue as scheduled, the defendant did not actually object to the jury selection process
employed by the trial court. The defendant made no reference to either the Code or the rules of
procedure when making his notation for the record. Further, he did not argue, as he does on appeal,
that waiting for more panel members to arrive violated any rule regarding jury selection. He stated
simply that he had exercised all of his peremptory challenges in a bid to delay the trial and that the
trial court’s actions had interfered with his plan. In consequence, the defendant has waived our
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consideration of this issue. See Tenn. R. App. P. 36(a); see State v. Killebrew, 760 S.W.2d 228, 235
(Tenn. Crim. App. 1988) (waiver applies when the defendant fails to make a contemporaneous
objection); see also State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App. 1994) (holding that
a “party cannot assert a new or different theory to support the objection in the motion for a new trial
or in the appellate court”); State v. Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988) (holding
that a party cannot object on one ground at trial and assert new basis on appeal); State v. Jenkins, 733
S.W.2d 528, 532 (Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn. Crim.
App. 1987). This court will not consider a theory raised for the first time on appeal. See Adkisson,
899 S.W.2d at 635; State v. Matthews, 805 S.W.2d 776, 781 (Tenn. Crim. App. 1990); Aucoin, 756
S.W.2d at 715; State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App. 1988); State v. Brock, 678
S.W.2d 486, 490 (Tenn. Crim. App. 1984); see also Tenn. R. Evid. 103(a)(1).
The defendant also complains on appeal that the trial court erred by using “jurors who
had been rejected from another court’s jury panel” to complete the petit jury in this case. Again, the
defendant waived our consideration of this issue by failing to lodge an objection to this procedure.
Moreover, nothing in the record supports the defendant’s claim that “rejected” jurors were used to
complete the jury.
B. Peremptory Challenges
The defendant contends that the trial court should have provided him with additional
peremptory challenges after “adding additional jurors to the panel.” The State asserts that because
the six potential jurors questioned on the second day of trial “were not new or replacements” the
defendant was not entitled to additional challenges. We agree with the State.
As indicated above, the trial court noted that some of the panel members had not
arrived as scheduled on the first day of trial, meaning that the pool was smaller than expected. In
addition, trials were scheduled to begin in all three divisions of the criminal court on that same day,
creating a drain on the already diminutive venire pool. On the following day, six additional potential
jurors were available for voir dire who had not been available on the previous day. As the trial court
explained, they “were not replacement jurors” and were not “rejected jurors. These were just jurors
who at a given hour on a given day were not available.” Tennessee Code Annotated section 22-2308 provides the procedure to be followed when “the required number of jurors cannot be obtained
from the venire.” T.C.A. § 22-2-308(a)(2) (1994) (repealed 2008). Here, the record clearly
establishes that the names of the six jurors were included in the venire summoned on the first day
of trial to be divided among the three criminal court divisions. In consequence, the procedure
provided in Code section 22-2-308 is inapplicable.
Moreover, the record establishes the defendant admitted exercising his peremptory
challenges for the sole purpose of delaying the trial. The trial court cannot be faulted for defense
counsel’s improper actions in attempting to use voir dire as a delay tactic. The defendant is not
entitled to relief on this issue.
C. Access to Jury List and Questionnaire
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The defendant complains that his “due process rights were violated when he was
denied access to the list of juror names and to the jury questionnaire after requesting access to same.”
Citing Tennessee Rule of Criminal Procedure 24 and Tennessee Code Annotated section 22-2-306,
the defendant claims that “personnel from the Clerk’s Office” impermissibly denied him access to
the jury questionnaire and list of potential jurors. The State contends that the defendant has waived
this issue by failing to lodge a contemporaneous objection. We agree with the State.
Although the defendant claims a constitutional due process violation, he cites no
authority in support of his claimed constitutional deprivation. Moreover, the record establishes that
the defendant did not raise the issue in a timely manner in the trial court. Rather than addressing the
issue in the trial court prior to the trial, the defendant raised the issue for the first time in his motion
for new trial. Because he has failed to support his argument with citation to appropriate authorities,
see Tenn. R. App. P. 27(a)(7); Tenn. R. Ct. Crim. App. 10(b), and because he failed to make a timely
objection, see Tenn. R. App. P. 36(a); Killebrew, 760 S.W.2d at 235, the defendant has waived our
consideration of this issue.
Moreover, the defendant does not even attempt to establish any prejudice from the
alleged untimely revelation of the jury list and questionnaire and, as a result, is not entitled to relief.
“Generally, before a criminal defendant may successfully challenge an indictment or venire because
of improper jury selection procedures, he must show that he was prejudiced or that the improper
procedures resulted from purposeful discrimination or fraud.” State v. Stephens, 264 S.W.3d 719,
731 (Tenn. Crim. App. 2007) (citing State v. Coleman, 865 S.W.2d 455, 458 (Tenn. 1993); State v.
Elrod, 721 S.W.2d 820, 822 (Tenn. Crim. App. 1986); Tenn. R. Crim. P. 52(a)). Also, because the
defendant has failed to establish any deviation from the statutory requirements, he has likewise failed
to demonstrate that a showing of prejudice is not necessary due to a deviation that was “flagrant,
unreasonable, and unnecessary.” State v. Lynn, 924 S.W.2d 892, 894 (Tenn. 1996).
II. Continuance
The defendant next contends that the trial court erred by denying his motion for
continuance following the retention of substitute counsel. The State asserts that the defendant is not
entitled to relief because he has failed to demonstrate prejudice as a result of the denial. Again, we
agree with the State.
“[T]he granting or denying of a continuance is a matter which addresses itself to the
sound discretion of the trial judge.” Moorehead v. State, 219 Tenn. 271, 274-75, 409 S.W.2d 357,
358 (1966) (citing Bass v. State, 191 Tenn. 259, 231 S.W.2d 707 (1950)). An abuse of discretion
is demonstrated by showing that the failure to grant a continuance denied the defendant a fair trial
or that it could be reasonably concluded that a different result would have followed had the
continuance been granted. State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995) (citing State v.
Wooden, 658 S.W.2d 553, 558 (Tenn. Crim. App. 1983)). “The burden rests upon the party seeking
the continuance to show how the court’s action was prejudicial. The only test is whether the
defendant has been deprived of his rights and an injustice done.” State v. Goodman, 643 S.W.2d
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375, 378 (Tenn. Crim. App. 1982) (citing Baxter v. State, 503 S.W.2d 226, 228 (Tenn. Crim. App.
1973)).
We need not tarry long over the defendant’s claim for two reasons. First, during his
initial appearance before the trial court, newly retained trial counsel, a member of the Georgia bar
and unlicensed in Tennessee, requested pro hac vice admission and “the courtesy of a continuance.”
He insisted, however, that “if need be, we would be ready.” Counsel expressly stated that he desired
a continuance but that one was not necessary. Appellate relief is generally not available when a party
is “responsible for an error” or has “failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of any error.” Tenn. R. App. P. 36(a). Also, the defendant has
failed to allege any specific prejudice and most certainly has established none. In consequence, he
is not entitled to relief on this issue.
III. Sufficiency of the Evidence
The defendant asserts that the evidence adduced at trial was insufficient to support
his conviction of burglary. He claims that because the Pilot/Breadbox was open to the public 24
hours a day, the State failed to establish that he lacked the owner’s effective consent to enter. During
oral argument, the State conceded the insufficiency of the evidence of burglary.
We review the defendant’s claim mindful that our standard of review is whether, after
considering the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e);
Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Winters, 137
S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence.
Winters, 137 S.W.3d at 654.
When examining the sufficiency of the evidence, this court should neither re-weigh
the evidence nor substitute its inferences for those drawn by the trier of fact. Id. at 655. Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Significantly, this court must afford the State the strongest legitimate view
of the evidence contained in the record as well as all reasonable and legitimate inferences which may
be drawn from the evidence. Id.
“A person commits burglary who, without the effective consent of the property owner
. . . [e]nters a building other than a habitation (or any portion thereof) not open to the public, with
intent to commit a felony, theft or assault.” T.C.A. § 39-14-402(a)(1) (2003). Our Code defines
effective consent as follows:
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“Effective consent” means assent in fact, whether express or apparent,
including assent by one legally authorized to act for another. Consent
is not effective when:
(A) Induced by deception or coercion;
(B) Given by a person the defendant knows is not authorized
to act as an agent;
(C) Given by a person who, by reason of youth, mental disease
or defect, or intoxication, is known by the defendant to be unable to
make reasonable decisions regarding the subject matter; or
(D) Given solely to detect the commission of an offense;
Id. § 39-11-106(9).
In this case, the property in question was a convenience store and gas station open to
the public 24 hours a day. Ms. Rutledge testified that the store did not maintain a list of prohibited
persons and that “people just kind of walk in and out as they please.” Clearly, the defendant
possessed the property owner’s consent to enter the store. That he intended to commit a robbery
therein does not, in any way, alter that consent. See id. The record establishes that the defendant
sought dismissal of the burglary charge on this exact basis, and after the prosecutor asserted that the
defendant’s intent to commit robbery revoked the owner’s consent, the trial court denied the motion.
The court should have granted the motion because the prosecutor’s position was wholly untenable.
See State v. Ferguson, 229 S.W.3d 312, 316 (Tenn. Crim. App. 2007) (holding in similar
circumstances that “nothing in the record would permit the trier of fact to find that the owner did not
effectively consent to the entry of the [d]efendant”). In response to a jury question during
deliberation, the trial court stated the elements of burglary as “[n]umber one, that the defendant
entered a building; and number two, that the defendant committed the felony of aggravated robbery.”
This ignored the statutory definition of “effective consent.” If the statute were read in the manner
suggested by the prosecutor, every felony committed within a building or habitation would also
constitute burglary. Our legislature did not intend such a result. See id.
Because the evidence established that the defendant entered the Pilot/Breadbox with
the consent of the owner, the evidence was insufficient to support his conviction of burglary.
Accordingly, that conviction is reversed, and the charge is dismissed.
IV. Sentencing
Finally, the defendant complains that the trial court violated the ruling in State v.
Gomez, 239 S.W.3d 733, 740 (Tenn. 2007), when it enhanced his sentence on the basis of his
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previous unwillingness to comply with a sentence involving release into the community. The State
agrees that the trial court erred by enhancing the sentence on the basis of this enhancement factor,
which was not found by the jury or admitted by the defendant, but asserts that “the defendant’s
lengthy criminal history is more than sufficient to justify the two-year enhancement” imposed by
the trial court. We agree with the State.
On June 24, 2004, the United States Supreme Court released its opinion in Blakely
v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), holding that “‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.’” Id. at 301, 124 S. Ct. at 2536
(quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000)). The
“statutory maximum” to which a trial court may sentence a defendant is not the maximum sentence
after application of appropriate enhancement factors, other than the fact of a prior conviction, but
the “maximum sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” Id. at 303, 124 S. Ct. at 2537 (emphasis omitted). Under
Blakely, then, the “statutory maximum” sentence which may be imposed is the presumptive sentence
applicable to the offense. See id., 124 S. Ct. at 2537. The presumptive sentence may be exceeded
without the participation of a jury only when the defendant has a prior conviction and/or when an
otherwise applicable enhancement factor was reflected in the jury’s verdict or was admitted by the
defendant.
The defendant committed the conviction offense on March 4, 2005. At the time of
sentencing in this case, August 24, 2006, the Tennessee Supreme Court had held that the Tennessee
Criminal Sentencing Reform Act of 1989, pursuant to which Gomez was sentenced, did not run
afoul of the Sixth Amendment right to jury trial as interpreted in Blakely. See State v. Gomez, 163
S.W.3d 632, 654-61 (Tenn. 2005) (Gomez I), vacated and remanded, Gomez v. Tennessee, 549 U.S.
1190, 127 S. Ct. 1209 (2007). On January 22, 2007, the United States Supreme Court released its
decision in Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007), holding that California’s
sentencing scheme, which had numerous similarities to Tennessee’s sentencing scheme, did not
survive Sixth Amendment scrutiny intact under Blakely. Following on the heels of Cunningham,
on February 20, 2007, the United States Supreme Court vacated Gomez I and remanded that case for
reconsideration in light of Cunningham, see Gomez v. Tennessee, 549 U.S. 1190, 127 S. Ct. 1209
(2007).
On remand in Gomez, the Tennessee Supreme Court applied the principles of Blakely
and Cunningham to determine that Tennessee’s pre-2005 sentencing code violated Gomez’ right to
jury trial. State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (Gomez II). The Gomez II court held that
the trial court had committed plain error on constitutional grounds in applying factors for being a
leader in the commission of the offenses and in possessing or employing a firearm to enhance
sentences. Id. at 743.
That the defendant did not raise the Blakely issue prior to his appeal deprives him of
plenary review; however, this court may consider plain error upon the record under Rule 52(b) of
the Tennessee Rules of Criminal Procedure. State v. Ogle, 666 S.W.2d 58, 60 (Tenn. 1984). Before
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an error may be so recognized, however, it “must be ‘plain’ and it must affect a ‘substantial right’
of the accused.” State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). The word
“plain” is “synonymous with ‘clear’ or, equivalently, ‘obvious.’” United States v. Olano, 507 U.S.
725, 734, 113 S. Ct. 1770, 1777 (1993). “Rule 52(b) [of the Federal Rules of Criminal Procedure]
leaves the decision to correct the forfeited error within the sound discretion of the court of appeals,
and the court should not exercise that discretion unless the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’” Id. at 732 (citations omitted).
In State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000), our supreme court adopted
the standard announced by this court in Adkisson. There, we defined “substantial right” as a right
of “‘fundamental proportions in the indictment process, a right to the proof of every element of the
offense, and is constitutional in nature.’” Adkisson, 899 S.W.2d at 639 (citation omitted). Our
supreme court also adopted Adkisson’s five factor test for determining whether an error should be
recognized as plain:
“(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have 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, 24 S.W.3d at 282 (quoting Adkisson, 899 S.W.2d at 641-42). “[A]ll five factors must be
established by the record before [a reviewing court] will recognize the existence of plain error, and
complete consideration of all the factors is not necessary when it is clear from the record that at least
one of the factors cannot be established.” Id. at 283. Our supreme court also observed that “the
‘plain error must [have been] of such a great magnitude that it probably changed the outcome of the
trial.’” Id. (quoting Adkisson, 899 S.W.2d at 642) (internal quotation marks omitted).
Looking first at the adequacy of the record, we have before us the trial court record,
including the presentence report and the transcripts of the trial and of the sentencing hearing, from
all of which we can glean that the trial court enhanced the defendant’s sentence for aggravated
robbery from the presumptive sentence of 12 years to 14 years. The enhancement was based on the
application of factor (2), that the defendant had a history of criminal convictions in addition to those
necessary to establish the appropriate range, and factor (9), that the defendant failed to comply with
the conditions of a sentence involving release into the community. See T.C.A. § 40-35-114(2), (9)
(2003).
The issue at stake is the defendant’s Sixth Amendment right to have a jury determine
the factors that enhance his sentence beyond the presumptive sentence. In Gomez II, our supreme
court determined that Gomez’ sentence enhancement violated a clear and unequivocal rule of law
for purposes of noticing plain error. As in Gomez II, the Blakely claim in the present case implicates
a clear and unequivocal rule of law.
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Looking next to whether the claimed violation of the Sixth Amendment adversely
affected a substantial right of the defendant, the trial court utilized an enhancement factor that
involved factual determinations of the “type . . . prohibited by Apprendi.” Gomez II, 239 S.W.3d
at 743. Thus, as in Gomez II, the enhancement of the sentence adversely affected a substantial right
of the defendant.
“The fourth consideration for plain error review is whether the record indicates that
the [d]efendant[] waived [his] Sixth Amendment claims for tactical reasons.” Id. at 741. As in
Gomez II, “the record in this case is silent and does not establish that the [d]efendant[] made a
tactical decision to waive [his] Sixth Amendment claims.” See id. at 742. Thus, the record evinces
no basis in tactics or strategy for rejecting plain error review.
Finally, we examine the need for assuring substantial justice as a basis for noticing
plain error. In Gomez II, our supreme court, in examining whether substantial justice had been
availed or withheld, looked at the relative impact on sentence enhancement of Gomez’ prior criminal
record vis-a-vis the other, Blakely-infirm factors. The court commented that, as a reviewing
appellate court, it was authorized to “[a]ffirm, reduce, vacate or set aside the sentence imposed,” id.
at 743 (quoting T.C.A. § 40-35-401(c) (2006)), suggesting that the court, if it could, would look at
what sentence it would impose using the Blakely-compliant enhancement factor of prior criminal
record to determine whether the trial court’s use of other factors deprived the defendant of
“substantial justice.” In Gomez II, however, the court determined that the record of “criminal
histories [was] not sufficiently well-developed [to allow a] determin[ation of] the proper sentences
based on this enhancement factor alone.” Id. at 743. In that situation, the Gomez II court apparently
reasoned, the appellate court could not bring an appropriate, Blakely-compliant sentence into focus,
and accordingly, the court held that, to ensure substantial justice, it must remand the case to the trial
court for a “resentencing hearing at which the trial court will have an opportunity both to determine
the full scope of the [d]efendants’ criminal histories and to consider whether imposition of the
maximum sentence on all convictions is appropriate.” Id.
In this case, the record establishes that the 45-year-old defendant had 10 prior
convictions with listed dispositions, eight more than the two required to place him into Range II.
In our view, the defendant’s extensive history of criminal convictions, dating back more than 20
years, was sufficient to justify the two-year enhancement imposed in this case. As such, plain error
is not present and a remand for resentencing is unnecessary in this case.
V. Conclusion
Because the evidence is insufficient to support the defendant’s conviction of burglary,
that conviction is reversed, and the charge is dismissed. The trial court erroneously utilized
enhancement factor (9) to increase the defendant’s sentence but the remaining Blakely-compliant
factor justifies the 14-year sentence in this case.
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___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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