State vs Calvin Jerome Oliver
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 9, 2009
STATE OF TENNESSEE v. CALVIN JEROME OLIVER
Direct Appeal from the Circuit Court for Marshall County
No. 14989
Robert Crigler, Judge
No. M2008-01824-CCA-R3-CD - Filed February 26, 2010
On June 19, 2002, Defendant, Calvin Jerome Oliver, entered pleas of guilty to aggravated
robbery, a Class B felony; aggravated burglary, a Class C felony; two counts of attempted
aggravated robbery, a Class C felony; and three counts of aggravated assault, a Class C
felony, with sentencing determinations left to the trial court. The trial court merged the two
attempted aggravated robbery convictions into the aggravated robbery conviction and
sentenced Defendant as a Range II, multiple offender, to eighteen years for his aggravated
robbery conviction. The trial court sentenced Defendant to seven years for the aggravated
burglary conviction and eight years for each aggravated assault conviction, all to be served
concurrently to each other but consecutively to the eighteen-year sentence, for an effective
sentence of twenty-six years. Defendant’s convictions and sentences were affirmed on
appeal. State v. Calvin Jerome Oliver, No. M2002-02438-CCA-R3-CD, 2003 WL 21997736
(Tenn. Crim. App., at Nashville, Aug. 21, 2003). The denial of Defendant’s petition for postconviction relief was affirmed on appeal. Calvin Jerome Oliver, No. M2004-01564-CCAR3-PC, 2005 WL 552897 (Tenn. Crim. App., at Nashville, May 3, 2005), perm. to appeal
denied (Tenn. May 23, 2005). Defendant filed a petition for habeas corpus relief in federal
court. The United States District Court for the Middle District of Tennessee held that
Defendant received ineffective assistance of counsel at the sentencing phase because his trial
counsel failed to introduce expert medical testimony concerning Defendant’s mental
condition as a mitigation factor in determining the length of Defendant’s sentence and
remanded for a new sentencing hearing. Calvin Oliver v. Tony Parker, Warden, No. 1:0500058, 2007 WL 4570355, at *1 (M. D. Tenn. Dec. 21, 2007). Following a resentencing
hearing, the trial court again sentenced Defendant to an effective sentence of twenty-six
years. On appeal, Defendant argues that the length of his sentences violate the principles of
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). After a thorough review, we
conclude that the trial court improperly considered enhancement factors other than
Defendant’s prior convictions in determining the length of Defendant’s sentences.
Accordingly, we remand for resentencing on all convictions in compliance with Blakely,
Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007), and State v. Gomez, 239
S.W.3d 733 (Tenn. 2007).
Tenn. R. App. P. Appeal as of Right; Judgment of the Circuit Court Remanded
T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D AVID H. W ELLES and
J.C. M CL IN, JJ., joined.
Hershell D. Koger, Pulaski, Tennessee, for the appellant, Calvin Jerome Oliver.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the appellee, the State of Tennessee.
OPINION
I. Background
The State gave the following factual basis in support of Defendant’s pleas of guilty at the
guilty plea submission hearing:
On the night of March 18, 2002, the victim and her boyfriend were in bed
when some men kicked open the victim’s back door and forced their way into
her home. The victim’s boyfriend was awakened, poked in the back with a
rifle, and told that he was going to be shot. The gun also was pointed at the
victim, the victim’s young daughter, and another woman who was staying in
the home. The victim gave the men her pocketbook, and they fled the scene.
When the police arrived, they found masks, gloves, and a rifle. The police also
stopped a car that they had seen in the area immediately before the crimes and
arrested two of the robbers. At some point, the police arrested the defendant,
who gave a statement and admitted his involvement in the offenses.
Calvin Jerome Oliver, 2003 WL 21997736, at *1.
At Defendant’s second sentencing hearing, the State introduced the presentence report
prepared in 2002 for Defendant’s first sentencing hearing as an exhibit without objection.
The transcripts of Defendant’s guilty plea submission hearing and first sentencing hearing
were also introduced as exhibits.
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Jamie Staggs testified at the second sentencing hearing that she was employed by the
Tennessee Board of Probation and Parole and reviewed Defendant’s presentence report
which had been prepared in 2002 by a fellow employee who had since passed away. Ms.
Staggs said that the report contained statements by Defendant’s three co-defendants, Donald
Wayne Harris, Mark Beard, and Chad McLean, all of which were inconsistent as to the
details of the offense. Mr. Harris said that Defendant, Mr. Beard, and Mr. McLean entered
the victim’s house, and Defendant carried a gun. Mr. Beard said that Mr. McLean and
Defendant entered the victim’s house, and Mr. McLean was armed. Mr. McLean stated that
he, Mr. Harris, and Mr. Beard entered the victim’s house, Mr. Harris was armed, and
Defendant remained outside during the offense. In his statement, Defendant said that Mr.
McLean, who was armed, and Mr. Harris entered the victim’s house while he and Mr. Beard
waited outside.
According to the presentence report, Defendant, who was twenty-four years old at the
time of sentencing, committed his first offense of shoplifting when he was eleven years old.
When he was twelve years old, Defendant had three juvenile adjudications for theft of
property valued at $500 or less, and one juvenile adjudication for theft of property valued
between $500 and $1,000. Defendant had one juvenile adjudication the following year for
criminal trespassing, and he was found in violation of his probation when he was fourteen
years old. When he was sixteen years old, Defendant had one juvenile adjudication for
joyriding. In addition, the report revealed that Defendant was placed in the custody of the
Department of Human Services on several occasions and escaped numerous times from the
facility in which he was then residing. On one occasion, Defendant stole the facility’s van
to effectuate his escape. Defendant was apprehended on each occasion and returned to the
Department’s custody. Defendant was released from the Wilder Youth Center on December
19, 1995 when he turned eighteen.
In 1996, Defendant was convicted of delivery of more than 0.5 grams of cocaine, a
Class B felony, and was sentenced to ten years. In 1996, Defendant was also convicted of
theft of property valued between $1,000 and $10,000, a Class D felony; burglary of a vehicle,
a Class E felony; and simple assault, a Class A misdemeanor. He was sentenced to three
years for the theft conviction, two years for the burglary conviction, and eleven months,
twenty-nine days for the misdemeanor conviction. In 1997, Defendant was convicted of
criminal impersonation, a Class B misdemeanor. In 2002, Defendant was convicted of theft
of property valued at $500 or less, a Class A misdemeanor, and evading arrest, a Class A
misdemeanor. Defendant was sentenced to eleven months twenty-nine days for each
conviction. His sentences were suspended after service of a short period of time in
confinement, and Defendant was placed on probation. According to the presentence report,
Defendant was on probation for these misdemeanor offenses when he committed the charged
offenses. The presentence report indicates that Defendant was sentenced in 1996 to ten years
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for his drug conviction, and he was transferred to Boot Camp later that year. Defendant was
released from Boot Camp on probation on February 12, 1997. His probation was revoked
on October 8, 1997, and he was returned to the Department of Correction. The presentence
report indicates that Defendant was paroled on September 10, 2001, for this conviction.
According to the presentence report, Defendant dropped out of high school in his
senior year. Defendant reported that he had completed two anger management courses and
one course in substance abuse. Defendant refused to complete the personal questionnaire
form during the preparation of his presentence report, and he, therefore, provided no
information concerning his family, financial, or employment history.
Christy Lee Colvert, one of the victims of the offenses, testified that in 2002, she was
living with her three children, Jonathan Osteen, and Megan Hooten. Ms. Colvert said that
her husband, John Moore, was killed in a work-related accident in 2001, and Ms. Colvert
received monthly payments of $933 from an insurance policy on her husband’s life. Ms.
Colvert subsequently decided to take a lump sum payment under the policy and received
approximately $43,000 after payment of expenses. Ms. Colvert said that only family
members, including Mr. Harris, knew about the insurance settlement.
Ms. Colvert said that the family was in bed on the night of the offenses when she
heard heavy footsteps running down the hallway. Her bedroom door flew open and someone
said, “Give me your money.” Ms. Colvert stated that the house was dark, and she saw only
a shadow and a rifle. Ms. Colvert told the intruder repeatedly that she did not have any
money, and the man pointed the rifle at her face. Ms. Colvert told the man she would go to
the living room and retrieve her purse. The man let her get up and as she walked out of the
bedroom, Ms. Colvert saw a man in the hall with a pistol pointed toward her four-year-old
daughter’s head. Ms. Colvert also heard two other men in the back of the house. Ms.
Colvert walked into the living room and flipped on the light switch. The two men who were
armed rushed into the room and turned out the light. The man with the pistol returned to the
hallway and stepped on her daughter’s puppy. The child picked up the puppy, and the man
told her that he would shoot both her and the puppy if the puppy did not stop barking. Ms.
Colvert said that the men also pointed their weapons at Ms. Hooten and Mr. Osteen. Ms.
Colvert gave the man with the rifle her purse, and all four men ran out of the house. Ms.
Colvert said that she had approximately thirty dollars in her purse. Ms. Colvert stated that
she was unable to identify any of the perpetrators because they wore handkerchiefs over their
faces and dark, heavy jackets.
Ms. Colvert said the incident was the most frightening event of her life, “and seeing
a gun to [her] child’s head [was] the worst experience [she] could have ever gone through.”
Ms. Colvert said that she was subpoenaed to testify approximately five days before the
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second sentencing hearing, and she immediately called the assistant district attorney. Ms.
Colvert said she was crying and “pretty much” hysterical because she could not understand
why she had to face Defendant again. Ms. Colvert said that neither she nor her daughter
would ever forget the incident. Ms. Colvert said that Mr. Harris was the cousin of two of her
children, and she grew up with Mr. Beard. Ms Colvert stated that she just wanted to be left
alone. She said, “I just – I want him to go away. I want him to leave me alone. I don’t ever
want to have to see his face again, ever.”
On cross-examination, Ms. Colvert stated that she was sure that it was Mr. McLean
with the rifle and Defendant with the pistol because Mr. Osteen had grown up with Mr.
Harris and she had grown up with Mr. Beard. Ms. Colvert said that she and Mr. Osteen
would have recognized Mr. Harris’s and Mr. Beard’s voices if they had been the ones with
the weapons. Ms. Osteen also said that Mr. Beard was Caucasian and the men with the guns
were African-American.
James Whitsett testified that he was the lead detective in Defendant’s case for the
Lewisburg City Police Department. Detective Whitsett stated that Mr. Beard, Mr. Harris and
Mr. McLean were apprehended the night of the offenses, and during their respective
interviews, confessed to their involvement in the offenses. Detective Whitsett said that
Defendant was also developed as a suspect but he remained in hiding for two months.
Detective Whitsett stated that both the police department and the Marshall County Sheriff’s
Department conducted a thorough search in Lewisburg and the surrounding communities
during the two-month interval until Defendant was finally apprehended. The officers talked
frequently with members of Defendant’s family during this period of time. Detective
Whitsett said that although the rifle used during the commission of the offenses was found,
the pistol was never recovered.
Defendant called Pamela Mary Auble, a clinical neuro-psychologist, as a witness. Dr.
Auble testified that she conducted a mental evaluation of Defendant in August 2006 during
the pendency of his petition for writ of habeas corpus in federal court. Dr. Auble stated that
she also reviewed Defendant’s prior psychiatric and educational evaluations which had been
conducted periodically during the 1980's and 1990's. Dr. Auble administered several tests
to Defendant including the Wechsler Adult Intelligence Scale, the Wechsler Memory Scale,
the Wide Range Achievement Test, the Rorschach and Incomplete Sentences Blank, and the
McArthur Competency Assessment Tool. Dr. Auble stated that she diagnosed Defendant as
mentally retarded based on the results of her tests and her review of Defendant’s medical and
educational records. Dr. Auble noted that Defendant was certified as mentally retarded by
the school system when he was nine years old, and the certification continued throughout his
schooling. Four of the seven evaluations showed that Defendant had a full scale IQ of 64.
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Dr. Auble testified that in Tennessee, an individual with an IQ of 70 or below is considered
mentally retarded.
Testing revealed that Defendant was deficient in communication and socialization
skills and read at a first grade level. Dr. Auble said that these deficits were “above and
beyond even what you would expect for someone of his IQ.” Specifically, Dr. Auble pointed
to Defendant’s inability to learn to read beyond a first grade level despite attending special
education classes until the eleventh grade. Dr. Auble acknowledged that Defendant “does
understand simple things,” but he “confused easily.” Defendant’s lack of socialization skills
indicated that he experienced difficulty in forming and maintaining relationships “in an
adaptive and a reasonable manner.”
Dr. Auble stated that “to some extent [one’s] intellectual capabilities are inherited.”
Based on Defendant’s records, Dr. Auble said that Defendant’s mother was mentally retarded
and unable to provide a nurturing home for Defendant. Defendant’s twin sisters had been
institutionalized at an early age because of mental retardation, and it appeared that three of
Defendant’s five other siblings were mentally retarded.
Dr. Auble said that as a result of Defendant’s mental retardation, he was easily
manipulated and displayed poor judgment. Dr. Auble described Defendant as “impulsive”
and “a follower.” Dr. Auble stated that Defendant was able to reason, but this ability was
more limited than the population at large. Dr. Auble also described Defendant as
“manipulative” and “self-serving,” and stated that Defendant did not always try to complete
the tests adequately.
On cross-examination, Dr. Auble said there were different levels of mental
retardation, and people with an IQ score of between 50 and 70, the highest level, were
classified as mildly mentally retarded. Dr. Auble stated that people within this level can
communicate and have adequate motor skills. Most are able to attend special education
classes and reach, at best, a sixth grade level. An individual’s skills increase at the higher
end of the spectrum, and Dr. Auble said that a person with an IQ of 70 would be able to be
employed at simple, repetitive tasks. Dr. Auble acknowledged that Defendant’s inability to
read may have been caused, in part, by his attitude, but she attributed his inability to learn
primarily to his mental retardation which impeded his communication and verbal skills. Dr.
Auble stated that there was something wrong in Defendant’s brain that made “him actually
unable to learn [to read] despite putting effort into it and in spite of much exposure to it.”
Dr. Auble acknowledged that on two IQ tests Defendant’s full scale IQ was reported
as 71 and 75 respectively. Dr. Auble, however, said that these IQ scores were, in her
opinion, inflated because both tests were administered within months of another test
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reflecting an IQ in the mid 60's. Dr. Auble attributed the inflation to “the practice effect.”
That is, Defendant was able to perform better on the later tests because he had retained some
knowledge of how to take the tests. Dr. Auble acknowledged that Defendant was able to
provide information about his childhood during his interview, but Dr. Auble said that
Defendant was incorrect in many of the details. Dr. Auble stated that Defendant’s mental
retardation would make him susceptible to the influence of others, but said that “as far as
[she] kn[e]w,” Defendant was able to distinguish between right and wrong.
On redirect examination, Dr. Auble reiterated that Defendant’s mental retardation
impaired his judgment and reasoning, which, in turn, adversely affected his responsibility for
his conduct. In response to the trial court’s questions, Dr. Auble stated that the extent of
Defendant’s mental retardation represented a significant impairment to his mental abilities.
On recross-examination, Dr. Auble said that Defendant’s mental retardation was a constant
presence, and it would have significantly affected his judgment, decisions, and reasoning on
the night of the offense.
Defendant testified that he was initially reluctant to join the group on the night of the
commission of the offenses. Defendant said that Mr. Harris kept begging him to go to the
victim’s house, and Defendant finally agreed. Defendant said that Mr. Harris kicked in the
back door, and Mr. McLean and Mr. Beard ran into the house. Defendant stated that he and
Mr. Harris stayed by the back door. Defendant said that Mr. McLean was armed with a rifle,
but none of the participants carried a pistol. Defendant stated that he lived in Columbia after
the incident, and he was unaware that the police officers were looking for him until he
received a telephone call from his brother. Defendant stated that Mr. McLean lived with
Defendant while Defendant was in Columbia.
On cross-examination, Defendant clarified that Mr. McLean was arrested when he
returned to Lewisburg. Defendant said that he had lived in Columbia for approximately six
months before the incident. Defendant acknowledged that he was aware the police officers
were looking for him. Defendant said that after the offenses, he lived in a trailer and worked
for the State picking up trash on the roadways. Defendant stated that one of his girlfriends
filled out the rental application, and he paid his rent in cash on a weekly basis. Defendant
said that he could not remember where he reported to work, but he stated that his girlfriend
drove him to his workplace, and his supervisor assigned him his duties for the day.
Defendant stated that he never missed a day of work. Defendant said that the victim was
mistaken when she testified that she saw four men in her house. Defendant stated that Mr.
Harris and Mr. Beard were not telling the truth when they told the investigating officers that
Defendant went inside the victim’s house.
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On cross-examination, Defendant said that most of his prior crimes were committed
at the urging and encouragement of others. Specifically, Defendant said that Mr. Harris was
present during the theft of an automobile in 1996. Defendant acknowledged that he was
convicted of the delivery of cocaine in 1996, but he stated that he was merely with the person
who actually sold the cocaine. Defendant stated that he would not become involved in crime
again if he were released from prison. Defendant acknowledged, however, that since his
incarceration on the current charges, he had been disciplined in prison for assaulting another
inmate. Defendant maintained, however, that another inmate with the same nickname as
Defendant actually committed the offense.
As discussed below, Defendant elected to be sentenced in accordance with the law at
the time he committed the offenses. See Tenn. Pub. Acts Ch. 353, § 18; T.C.A. § 40-35-210
(Supp. 2005). Accordingly, the statutes cited in this opinion are those that were in effect in
2002 unless otherwise noted.
The trial court declined to attribute any weight to Defendant’s confession following
his arrest. The trial court noted that Defendant evaded apprehension for two months after
the offense, and Defendant acknowledged that he had not initially been truthful during his
interview with the investigating officers. The trial court found Dr. Auble’s testimony
credible. The trial court found, however, that although mitigating factor (8), that Defendant
was suffering from a mental condition that significantly reduced his culpability for the
offense, was applicable, the factor was entitled to only slight weight. T.C.A. § 40-35-113(8).
The trial court observed that Defendant’s IQ was at the top of the scale for those considered
mentally retarded, and, based on his testimony at the hearing, Defendant appeared able to
understand the proceedings and to articulate his responses during questioning.
As enhancement factors, the trial court placed great weight on Defendant’s history of
criminal convictions which exceeded those necessary to classify him as a Range II, multiple
offender, for sentencing purposes. Id. § 40-35-114(2). The trial court found that Defendant
had displayed a previous unwillingness to comply with the conditions of a sentence involving
release into the community; that the offenses were committed while Defendant was on
parole; and that Defendant had been adjudicated to have committed a delinquent act or acts
as a juvenile that would constitute a felony if committed by an adult. Id. § 40-35-114(9),
(14), and (21). The trial court applied these enhancement factors to each of Defendant’s
sentences. In addition, the trial court found as to Defendant’s aggravated burglary sentence
that Defendant had no hesitation about committing the crime when the risk to human life was
high, and the crime was committed under circumstances under which the potential for bodily
injury to a victim was great. Id. § 40-35-114(11), (17).
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Based on the foregoing, after deducting one year based on the one mitigating factor,
the trial court sentenced Defendant to eighteen years for his aggravated robbery conviction,
seven years for his aggravated burglary sentence, and eight years for each aggravated assault
conviction. The trial court found that Defendant had an extensive record of criminal activity
and that he committed the offenses while on probation. Id. § 40-35-115(2), (6).
Accordingly, the trial court ordered Defendant to serve his sentences for aggravated burglary
and aggravated assault concurrently with each other but consecutively to his sentence for
aggravated robbery, for an effective sentence of twenty-six years.
II. Analysis
Defendant argues that the length of his sentence violates the principles set forth in
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), because the trial court relied
on enhancement factors which were not determined by a jury. In addition, Defendant
contends that the trial court erred in not attributing more weight to the one applicable
mitigating factor. The State submits that Blakely does not retroactively apply to resentencing
hearings which are granted after a collateral review of the defendant’s sentence.
Alternatively, the State argues that there are sufficient Blakely-compliant enhancement
factors to support the trial court’s sentencing determinations.
Certain provisions of the 1989 Sentencing Act were amended in 2005. See e.g.
T.C.A.§§ 40-35-114, -210. The 2005 amendments provided that the amended provisions
applied to sentencing for criminal offenses committed on or after June 7, 2005, but that
offenses committed prior to June 7, 2005, would be governed by prior law. It was also noted
that a defendant who is sentenced after June 7, 2005, for offenses committed on or after July
1, 1982, may elect to be sentenced under the amended provisions of the Act by executing a
waiver of ex post facto protections. See Pub. Acts, Ch. 353, § 18; T.C.A. § 40-35-210 (Supp.
2005). At the resentencing hearing, Defendant elected to be sentenced pursuant to the
sentencing statutes in effect at the time the offense was committed.
On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is improper. See T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant
challenges the length, range, or manner of service of a sentence, it is the duty of this Court
to conduct a de novo review on the record with a presumption that the determinations made
by the court from which the appeal is taken are correct. T.C.A. § 40-35-401(d). This
presumption of correctness, however, “‘is conditioned upon the affirmative showing in the
record that the trial court considered the sentencing principles and all relevant facts and
circumstances.’” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If, however, the trial court applies
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inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails,” and our review is de novo. Carter,
254 S.W.3d at 345 (quoting State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992);
State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004)).
In conducting a de novo review of a sentence, this Court must consider “1) The
evidence, if any, received at the trial and the sentencing hearing; (2) The presentence report;
(3) The principles of sentencing and arguments as to sentencing alternatives; (4) The nature
and characteristics of the criminal conduct involved; (5) Evidence and information offered
by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and
(6) Any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. T.C.A. § 40-35-210(b); see also State v. Imfeld, 70 S.W.3d 698, 704 (Tenn.
2002).
Under the pre-2005 statutory sentencing scheme, the trial court is required to begin
with a presumptive sentence, which for a Class B or Class C felony is the minimum sentence
in the sentencing range. The trial court must then adjust the sentence within the range as
appropriate based upon the presence or absence of mitigating and enhancement factors set
out in sections 40-35-113 and 40-35-114. T.C.A. § 40-35-210(c) - (e). As a Range II,
multiple offender, Defendant is subject to a sentence of between twelve and twenty years for
his Class B felony conviction, and a sentence of between six and ten years for each Class C
felony conviction. Id. § 40-35-112(b)(2), (3).
Under the applicable sentencing scheme, a number of enhancement and mitigating
factors could be considered by the trial court in determining the length of a defendant’s
sentence. Id. §§ 40-35-113, -114. However, in Blakely, the Supreme Court held 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.’” Blakely, 542 U.S. 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, but rather, other than the fact of a prior conviction, 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 or when an otherwise applicable enhancement factor was reflected in the
jury’s verdict or was admitted by the defendant.
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In State v. Gomez, 239 S.W.3d 733 (Tenn. 2007), our supreme court held that “to the
extent the [1989 Criminal Sentencing] Reform Act permitted enhancement based on
judicially determined facts other than the fact of a prior conviction, it violated the Sixth
Amendment as interpreted by the Supreme Court in Apprendi, Blakely and Cunningham [v.
California, 549 U.S. 270, 127 S. Ct. 856 (2007) ]. Gomez, 239 S.W.3d at 740. Nonetheless,
the State argues that Blakely and its progeny do not apply when a defendant is granted a
resentencing hearing following collateral review of his sentence. As support for its position,
the State relies on this Court’s opinions in Donald Branch v. State, No. W2003-03042-CCAR3-PC, 2004 WL 2996894 (Tenn. Crim. App., at Jackson, Dec. 21, 2004), perm. to appeal
denied (Tenn. May 23, 2005) (involving post-conviction review), and Billy Merle Meeks v.
Bell, No. M2005-00626-CCA-R3-HC, 2007 WL 4116486 (Tenn. Crim. App., at Nashville,
Nov. 13, 2007), perm. to appeal denied (Tenn. Apr. 7, 2008) (involving habeas corpus
review).
In both cases, we concluded that “Blakely should not be retroactively applied to cases
which have already become final on direct appeal” and are on collateral appeal. Donald
Branch, 2004 WL 2996894, at *10; Billy Merle Meeks, 2007 WL 4116486, at *6; see also
Bobby Taylor v. State, No. M2008-00335-CCA-R3-PC, 2009 WL 2047331 (Tenn. Crim.
App., at Nashville, July 14, 2009), perm. to appeal denied (Tenn. Oct. 19, 2008); Gary
Wallace v. State, No. W2007-01949-CCA-R3-CO, 2008 WL 2687698, at *2 (Tenn. Crim.
App., at Jackson, July 2, 2008), no perm. to appeal filed; Glen Cook v. State, No. W200601514-CCA-R3-PC, 2008 WL 821532, at *10 (Tenn. Crim. App., at Jackson, Mar. 27, 2008),
perm. to appeal denied (Tenn. Sept. 29, 2008).
In the instant case, however, although Defendant’s resentencing hearing was the result
of a successful collateral attack on his sentences in federal court on a non-Blakely related
issue, the case was remanded to state court for the purpose of conducting a de novo
sentencing hearing. Although case law establishes that a defendant is not entitled to
collateral relief based on a Blakely challenge, it does not say that the constitutional principals
articulated in Blakely cannot be applied at a resentencing hearing simply because the
resentencing hearing was granted after collateral review. At the sentencing hearing,
Defendant elected to be sentenced under the provisions of the 1989 Sentencing Act which
were in effect at the time the offense was committed in 2002. In Gomez, our supreme court
confirmed that Blakely-Cunningham precedents apply to our pre-2005 sentencing scheme.
Gomez, 239 S.W.3d at 740. Thus, the trial court was required to sentence Defendant under
the 1989 Sentencing Act in effect in 2002 and subject to the constitutional principles
articulated in Gomez and Blakely.
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A. Mitigating Factor
Defendant argues that based on Dr. Auble’s testimony, the trial court erred in not
assigning more weight to his mental retardation as a mitigating factor. As a mitigating factor,
the trial court may consider whether “[t]he defendant was suffering from a mental or physical
condition that significantly reduced the defendant’s culpability for the offense.” T.C.A. §
40-35-113(8). Initially, we note that the defendant has the burden of proving applicable
mitigating factors. State v. Richard Levron Campbell, No. E2007-01239-CCA-R3-CD, 2009
WL 1409978, at *10 (Tenn. Crim. App., at Knoxville, May 20, 2009), perm. to appeal denied
(Tenn. Aug. 17, 2009) (citing State v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL
548786, at *6 (Tenn. Crim. App., at Knoxville, Sept. 18, 1995)). This court has stated that
“while Tennessee Code Annotated section 40-35-113(8) allows a court to consider any
mental condition that significantly reduced the Appellant’s culpability, the Appellant must
sufficiently establish not only the presence of a defect, but also a causal link between his
ailment and the offense charged.” State v. Robert James Yoreck, III, No. M2004-01289CCA-R3-CD, 2003 WL 23613823, at *4 (Tenn. Crim. App., at Nashville, June 29, 2004),
perm. to appeal denied (May 23, 2005).
Dr. Auble testified that Defendant was mildly retarded based on his IQ scores and
medical records. As a result, Dr. Auble stated that Defendant would tend to be susceptible
to the influence of others and display poor judgment. Dr. Auble said, however, that there
was no indication that Defendant did not know right from wrong.
In assigning little weight to Defendant’s mental condition, the trial court found that
“the degree of mental retardation is extremely important.” The trial court observed that
Defendant:
is barely mentally retarded. I will add, based upon his testimony today, he
seems to be pretty able to understand what is going on. Were it not for the
report of mentally retarded, I don’t think I would have even had an inkling.
Just to hear him testify I didn’t detect it, to be honest with you.
According to his statement to the police and his testimony at the sentencing hearing,
Defendant knew that a robbery was going to occur when the group drove to the victim’s
house on the night of the offenses. The trial court noted that Defendant testified during his
first sentencing hearing that he understood the wrongful nature of his conduct. At this
sentencing hearing, Defendant expressed his regret over the incident and stated that he
understood why the victim would want to see him prosecuted for his role in the offenses.
The trial court observed that Defendant had no difficulty articulating the concept of
prosecution.
-12-
Under the sentencing structure prior to 2005, the weight given to each enhancement
or mitigating factor is in the discretion of the trial court, assuming the trial court has
complied with the purposes and principles of the sentencing act and its findings are supported
by the record. State v. Madden, 99 S.W.3d 127, 138 (Tenn. Crim. App. 2002). The statutes
prescribe no particular weight for an enhancement or mitigating factor. State v. Gosnell, 62
S.W.3d 740, 750 (Tenn. Crim. App. 2001). A defendant’s sentence “is not determined by
the mathematical process of adding the sum total of enhancing factors present then
subtracting from this figure the mitigating factors present for a net number of years.” State
v. Alder, 71 S.W.3d 299, 306 (Tenn. Crim. App. 2001) (quoting State v. Boggs, 932 S.W.2d
467, 475 (Tenn. Crim. App. 1996)).
Based on our review, we conclude that the trial’s finding that enhancement factor (8)
is only entitled to slight consideration in mitigation of the length of his sentence is supported
by the record. Defendant is not entitled to relief on this issue.
B. Enhancement Factors
Defendant submits that he sufficiently raised Blakely concerns at the sentencing
hearing to preserve the issue for appeal. Alternatively, Defendant urges this Court to review
his Blakely challenge as plain error.
After the conclusion of Dr. Auble’s testimony, a discussion was held concerning the
applicable sentencing statutes, and the following colloquy occurred as part of that discussion:
[DEFENSE COUNSEL]:
I think there are two things that are going on here,
Judge. One is the Booker fix. My thought is . . .
that the potential enhancing or mitigating factors
that were in effect at the time of this offense are
the ones that the Court should apply or not apply,
but that the Court should do that under the
methodology that the Court uses now where there
is no mandatory or presumptive sentencing.
THE COURT:
I think if that is the case ya’ll [sic] need to sign a
waiver of ex post facto, I believe. Is that not
correct? We have such a form.
[DEFENSE COUNSEL]:
My thought is we are dealing with a mixture of
those two things. . . . [I]t seems like the fix in
2005 with our sentencing scheme changed . . .
-13-
presumptions in sentencing and any sort of
mandatory sentencing it took away from the
Court, so I think technically the Court is now – if
the Court finds enhancing factors, the Court is not
bound necessarily to enhance if the Court doesn’t
feel [it] is appropriate; whereas I think in the past
the Court shall enhance. So I think to be
constitutionally valid I think the Court has to
sentence the way the Court has been sentencing
for the last two or three years, since 2005. I think
that the enhancing factors, mitigating factors that
the Court considers are the ones that were in
effect in 2002.
The discussion ended at this point and resumed after the presentation of Defendant’s
proof. The trial court informed defense counsel that if Defendant chose not to waive his ex
post facto rights, he would be sentenced under the sentencing scheme in effect at the time of
the commission of the offenses.
[DEFENSE COUNSEL]:
Judge, as I understand this waiver . . . what Your
Honor is saying by executing this waiver that
Your Honor would sentence him under the law as
it changed since June 7th, 2005.
THE COURT:
I think that is correct.
[DEFENSE COUNSEL]:
And so, with that understanding, we don’t intend
on executing the waiver.
THE COURT:
Okay. It would be the law [that] exist[ed] prior to
that.
Defendant did not raise any further objections to the trial court’s sentencing
determinations. Specifically, Defendant did not object to the trial court’s application of the
enhancement factors which he maintains on appeal were applied contrary to the constitutional
principles announced in Blakely and Gomez. Nonetheless, this Court may consider plain
error upon the record under Rule 36(b) of the Tennessee Rules of Appellate Procedure. See
Gomez, 239 S.W.3d at 737 (reviewing the defendants’ sentencing challenges based on
Blakely under plain error analysis). Relief is granted under plain error review “only where
five prerequisites are met: (1) the record clearly establishes what occurred in the trial court;
-14-
(2) a clear and unequivocal rule of law was breached; (3) a substantial right of the accused
was adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5)
consideration of the error is “necessary to do substantial justice.” Id. (quoting State v. Smith,
24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn.
Crim. App. 1994)).
In the present case, the record clearly establishes what transpired in the trial court, a
clear and unequivocal rule of law was breached with the application of enhancement factors
other than prior criminal history or admissions by Defendant, a substantial right of Defendant
was affected because he was denied his Sixth Amendment right to a jury trial, and the record
fails to reflect waiver for tactical reasons. With regard to the fifth factor, our supreme court
in Gomez has concluded that consideration of a Blakely infraction is necessary to do
substantial justice when the trial court increases the length of a defendant’s sentence based
on “constitutionally inappropriate” enhancement factors. Gomez, 239 S.W.3d at 742. To
make that decision in this case, pursuant to Gomez, we must look at what sentence we might
impose on the basis of the Blakely-compliant enhancement factors alone to decide if
substantial justice requires plain error review in this case. See State v. Randall A. Myers, No.
E2007-01810-CCA-R3-CD, 2009 WL 21033, at 5 (Tenn. Crim. App., at Knoxville, Jan. 5,
2009).
The trial court’s consideration of Defendant’s prior convictions, enhancement factor
(2), in determining the length of Defendant’s sentence does not offend constitutional
principles. Blakely, 542 U.S. at 301, 124 S. Ct. at 2536; Gomez, 239 S.W.3d at 740. It
appears from the certified copies of the judgments for Defendant’s adult felony convictions
that the theft offense and the theft of an automobile offense occurred on the same day and
would be considered as one conviction for the purposes of determining Defendant’s
sentencing range. T.C.A. § 40-35-106(b)(4). However, only two felony convictions are
required in order to sentence Defendant as a Range II, multiple offender. Id. § 40-35106(a)(1). Thus, a multiple offender classification is supported by Defendant’s Class B
felony drug conviction and his Class D theft conviction in 1996. In addition to these
convictions, Defendant has one prior Class E felony conviction and four misdemeanor
convictions. Thus, we conclude that the trial court did not err in considering Defendant’s
prior criminal history in addition to those necessary to establishing his sentencing range in
determining the length of Defendant’s sentence. See id. § 40-35-114(2).
The State on appeal agrees that Blakely and Gomez prohibit the trial court’s
application of enhancement factors (9), (11) and (17), all of which require consideration of
a judicially determined fact other than Defendant’s prior convictions or admissions. The
State argues, however, that the trial court properly considered Defendant’s commission of
-15-
the charged offenses while on parole, enhancement factor (14), and Defendant’s history of
juvenile adjudications, enhancement factor (21).
As for enhancement factor (14), the State relies on the introduction at the second
sentencing hearing of a certified copy of Defendant’s judgment of conviction on August 8,
1996, for the delivery of more than 0.5 grams of a Schedule II drug, a Class B felony.
According to the judgment, Defendant received a sentence of ten years. Because the current
offenses were committed in 2002, the State argues that a finding that Defendant was on
parole in 2002 does not offend Blakely.
We observe initially that in its brief, the State relies as support for its argument solely
on State v. Barry Ronnell Smelly, No. M2007-001884-CCA-R3-CD, 2009 WL 2357146
(Tenn. Crim. App., at Nashville, Feb. 24, 2009) (not for citation), perm. to appeal denied
(Tenn. Aug. 24, 2009). In fairness to the State, permission to appeal, with the “not for
citation” designation, was denied approximately five months after the State filed its brief.
However, no supplemental brief was filed with additional citations. See Tenn. R. Sup. Ct.
4(F)(1) (“If an application for permission to appeal is hereafter denied by this Court with a
‘Not for Citation’ designation, the opinion of the intermediate appellate court has no
precedential value.”).
Nonetheless, we reiterate that Blakely precludes consideration of any enhancement
factor that requires consideration of “judicially determined facts other that the fact of a prior
conviction” or an unequivocal admission by the defendant at trial or at the sentencing
hearing. Gomez, 239 S.W.3d at 740. The State argues that Defendant did not object to Ms.
Skaggs’ testimony at the sentencing hearing that he was on parole at the time he committed
the current offenses. However, various panels of this Court have previously held “that an
admission sufficient to support the enhancement of a defendant’s sentence under Blakely
must rest upon a defendant’s unequivocal testimony, at trial or at the sentencing hearing, or
a factual acknowledgment in the presentence report when the presentence report is
introduced as an exhibit at the sentencing hearing without objection.” State v. Anthony
Riggs, No. M2007-02322-RM-CD, 2008 WL 1968826, at *4 (Tenn. Crim. App., at
Nashville, May 7, 2008), no perm. to appeal filed; see also State v. Marquette Houston, No.
W2008-00885-CCA-R3-CD, 2009 WL 2357146, at *3 (Tenn. Crim. App., at Jackson, July
30, 2009), no perm. to appeal filed; State v. Mohamed Medhet Karim, No. M2006-00619CCA-R3-CD, 2007 WL 1435390, at *5 (Tenn. Crim. App., at Nashville, May 16, 2007),
perm. to appeal denied (Tenn. Aug. 13, 2007). Mr. Skaggs acknowledged at the sentencing
hearing that Defendant refused to participate in the preparation of the sentencing report. The
absence of such an admission by the defendant “requires the trial court to make an additional
finding as to credibility” and thus violates Blakely principles. Anthony Riggs, 2008 WL
-16-
1968826, at *4. Therefore, based on our review, we conclude that the trial court erred in
considering enhancement factor (14) under the principles articulated in Blakely and Gomez.
Relying on State v. Kevin Swift, No. W2007-00673-CCA-R3-CD, 2008 WL 4117951
(Tenn. Crim. App., at Jackson, Feb. 23, 2009), the State argues that the trial court did not err
in enhancing Defendant’s sentences based on his history of juvenile adjudications. See
T.C.A. § 40-35-114(21) (providing for enhancement if the defendant “was adjudicated to
have committed a delinquent act or acts as a juvenile that would constitute a felony if
committed by an adult”). However, Kevin Swift is not instructive to the case sub judice. In
that case, the defendant conceded on appeal that enhancement factor (21) applied and did not
contest the trial court’s application of this factor.
Various panels of this Court, however, have concluded that juvenile adjudications do
not qualify as prior convictions under Blakely. See e.g. State v. Brandon Wallace, No.
W2003-01967-CCA-R3-CD, 2005 WL 195086, at *10 (Tenn. Crim. App., at Jackson, Jan.
28, 2005), perm. to appeal denied (Tenn. May 23, 2005); State v. Christopher Kirkendall,
No. W2003-02393-CCA-R3-CD, 2004 WL 2726026, at *5 (Tenn. Crim. App., at Jackson,
Nov. 30, 2004), no perm. to appeal filed. Therefore, prior juvenile adjudications may
withstand Blakely scrutiny only if the defendant unequivocally admits at trial or at the
sentencing hearing to the commission of a juvenile offense that would be a felony if
committed as an adult. Anthony Riggs, 2008 WL 1968826, at *4; Christopher Kirkendall,
2004 WL 2726026, at *5. Thus, in order for the trial court’s application of this enhancement
factor to withstand a Blakely challenge, we must look to see whether Defendant
unequivocally admitted to the commission of an applicable juvenile adjudication.
In the case sub judice, the presentence report indicates that Defendant has numerous
juvenile adjudications for offenses committed between the ages of twelve and sixteen. Only
one adjudication, however, the theft of property valued between $500 and $1,000 in 1990,
would be a felony if he had committed the offense as an adult. See T.C.A. § 39-14-105(2)
(providing that theft of property valued between $500 and $1,000 is a Class E felony).
Defendant admitted at the sentencing hearing that he stole a vehicle during one of his escapes
from state custody, but it is unclear whether this testimony concerned the 1990 juvenile
adjudication for theft when he was twelve years old, or the notation in the presentence report
that he “stole [a] van and ran from Our House” in 1993. The report indicates that a petition
for “theft of property (auto) and escape” for the 1993 offense was issued by the Madison
County Juvenile Court, but the report does not indicate a monetary value for the property
stolen or whether there was a final adjudication on this petition. Accordingly, we conclude
that the trial court erred in considering enhancement factor (21) in determining the length of
Defendant’s sentence.
-17-
After review, we conclude as plain error, that the trial court erred in considering
enhancement factors other than Defendant’s prior convictions in determining the length of
Defendant’s sentences. Other than a specific finding that Defendant’s prior criminal history
was entitled to “great weight,” the trial court did not state what weight, if any, was assigned
to those enhancement factors which were not compliant with Blakely principles.
Accordingly, it is necessary to remand this matter for resentencing in compliance with
Blakely, Cunningham, and Gomez and our standard principles of sentencing in order to
ensure substantial justice.
CONCLUSION
After a thorough review, we conclude that as a result of plain error it is necessary to
remand Defendant’s sentences for aggravated robbery, aggravated burglary, and three counts
of aggravated assault for resentencing in compliance with Blakely, Cuningham, and Gomez.
_________________________________
THOMAS T. WOODALL, JUDGE
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