State v. Gomez

• Decision Date: 09 October 2007
• Docket Number: No. M2002-01209-SC-R11-CD.,M2002-01209-SC-R11-CD.
• Citation: 239 S.W.3d 733
• Parties: STATE of Tennessee v. Edwin GOMEZ et al.
• Court: Tennessee Supreme Court

239 S.W.3d 733

STATE of Tennessee v. Edwin GOMEZ et al.

No. M2002-01209-SC-R11-CD.

Supreme Court of Tennessee, at Nashville.

June 7, 2007 Session.

October 9, 2007.

Glenn R. Funk and Cynthia M. Fort, Nashville, Tennessee, for the appellant, Edwin Gomez.

David A. Collins, Nashville, Tennessee, and James Stafford, Houston, Texas, for the appellant, Jonathan S. Londono.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; Victor S. Johnson III, District Attorney General; and Bret Gunn and Roger Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

David L. Raybin, Nashville, Tennessee, and Wade V. Davies, Knoxville, Tennessee, for the Amicus Curiae, Tennessee Association of Criminal Defense Lawyers.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and JANICE M. HOLDER and GARY R. WADE, JJ., joined.

This matter is before us upon remand by the United States Supreme Court for reconsideration in light of that Court's decision in Cunningham v. California, 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). In our initial disposition of this matter, State v. Gomez, 163 S.W.3d 632 (Tenn.2005), we concluded that the Defendants were not entitled under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny to relief as to their sentences. Upon further review following Cunningham, we now conclude that the trial court's enhancement of the Defendants' sentences on the basis of judicially determined facts other than the Defendants' prior convictions violated the Defendants' constitutional rights under the Sixth Amendment to the United States Constitution. In order to redress the unconstitutional enhancement of the Defendants' sentences, we vacate their sentences and remand this matter to the trial court for resentencing.

I. BACKGROUND

The Defendants' Sixth Amendment claims as to the length of their sentences in this case are before us for reconsideration. We begin with a brief review of the prior proceedings.

The Defendants, Edwin Gomez and Jonathan S. Londono, were charged jointly with conspiracy to commit aggravated robbery (Count One), first degree felony murder (Count Two), especially aggravated robbery (Count Three), and aggravated robbery (Count Four). A recitation of the facts leading to these charges is set forth in our previous opinion, State v. Gomez, 163 S.W.3d 632, 637-40 (Tenn.2005) ("Gomez I"). The trial court submitted the crimes as charged to the jury, and the jury convicted the Defendants of conspiracy to commit aggravated robbery, a Class C felony, as charged in Count One. As to the remaining counts, the jury convicted the Defendants of lesser-included offenses: facilitation of felony murder, a Class A felony (Count Two), facilitation of especially aggravated robbery, a Class B felony (Count Three), and facilitation of aggravated robbery, a Class C felony (Count Four). After a sentencing hearing, the trial court sentenced the Defendants as Range I standard offenders to the maximum term available for each conviction: six years for the conspiracy offense; 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 court enhanced all of the Defendants' sentences on the basis of two enhancement factors: "a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range," and upon finding that each Defendant "was a leader in the commission of an offense involving two (2) or more criminal actors." Tenn.Code Ann. § 40-35-114(1), (2) (Supp.2001).¹ The trial court further enhanced each Defendant's sentence for the facilitation of felony murder offense upon finding that each Defendant "possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense." Id. at (9). The trial court found that no mitigating factors applied. The trial court ordered the sentences to be served consecutively for a total effective term of forty-nine years as to each Defendant.

On direct appeal, the Court of Criminal Appeals affirmed the Defendants' convictions and sentences although the intermediate appellate court determined that the trial court should not have applied to the facilitation of felony murder offense the enhancement factor for use of a firearm. On direct appeal to this Court, the Defendants raised, for the first time, a Sixth Amendment challenge to the length of their sentences,² relying upon the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).³ Finding that the Defendants had failed timely to preserve this issue for plenary appellate review, this Court ruled that the Defendants were "limited to seeking relief [on their Sixth Amendment sentencing claim] via plain error review." Gomez I, 163 S.W.3d at 651. Concluding that the Defendants had not established plain error⁴ in their sentencing, this Court denied relief and affirmed the Court of Criminal Appeals. Id. at 662.

The Defendants sought certiorari from the United States Supreme Court regarding this Court's holding on their Blakely issue. In due course, that Court vacated our decision in Gomez I and remanded this matter for further consideration in light of its recent opinion in Cunningham v. California, 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007).⁵ See Gomez v. Tennessee, ___ U.S. ___, 127 S.Ct. 1209, 167 L.Ed.2d 36 (2007). We now undertake that further consideration.⁶

II. ANALYSIS

A. Plain Error Review

As indicated above, this Court determined in its initial review of this matter that the Defendants were limited to plain error review on their sentencing claims. Defendant Gomez and amicus curiae argue that plain error review is unnecessary and that we should grant plenary appellate review of the Defendants' Sixth Amendment claims. Because we have determined that the Defendants are entitled to relief for plain error, we decline to readdress whether the Defendants properly preserved their Sixth Amendment claim for plenary review. Accordingly, consistent with our initial holding in Gomez I, we will apply plain error review to our reconsideration of the Defendants' sentencing claims.

B. Plain Error Criteria

Under plain error review, this Court will grant relief only where five prerequisites are met: (1) the record clearly establishes what occurred in the trial court; (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." 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)). "It is the accused's burden to persuade an appellate court that the trial court committed plain error." State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn.2007) (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

1. Adequate Record

As to the first prerequisite, we acknowledged in our previous decision that the record clearly establishes what occurred in the trial court. Gomez I, 163 S.W.3d at 652. In short, the record reflects the offenses of which the Defendants were convicted and the transcript of the sentencing hearing reflects the meticulous process used by the trial court in crafting individualized sentences for each Defendant pursuant to the applicable statutory provisions.

2. Breach of Clear and Unequivocal Rule of Law

We next considered in Gomez I whether the trial court breached a clear and unequivocal rule of law by applying enhancement factors based on facts not found by a jury to increase the length of the Defendants' sentences to the maximum allowable in the applicable range. We determined that it did not. Id. at 661-62. We now revisit that analysis.

a. Apprendi and its Progeny

We begin with a brief review of the line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and culminating in Cunningham. In Apprendi, the United States Supreme Court considered a state sentence that had been increased beyond the statutory maximum upon the trial judge's determination that the defendant had committed the crime `"with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.'" 530 U.S. at 469, 120 S.Ct. 2348 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp.1999-2000)). The Supreme Court held that the Sixth Amendment prohibited the enhanced sentence, id. at 497, 120 S.Ct. 2348, and stated, "[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 490, 120 S.Ct. 2348.

In Blakely v. Washington, the defendant was convicted of a felony under Washington law for which he was subject to a sentence of forty-nine to fifty-three months unless the trial judge found "`substantial and compelling reasons justifying an exceptional sentence.'" 542 U.S. 296, 299, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (quoting Wash. Rev.Code Ann. § 9.94A.120(2) (West 2000)). Finding that the defendant had committed the offense with deliberate cruelty, the trial court increased the defendant's sentence to ninety months. Applying the rule of Apprendi, the Supreme Court held the defendant's sentence unconstitutional. Id. at 305, 124 S.Ct. 2531. The Court emphasized that

the "statutory maximum" for Apprendi 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...