State of Tennessee v. James Austin - Dissenting ( 2005 )


Menu:
  •          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    STATE OF TENNESSEE v. JAMES AUSTIN
    Direct Appeal from the Circuit Court for Shelby County
    No. 00-04749 John P. Colton, Jr., Judge
    No. W2004-00510-CCA-R3-CD - Filed April 14, 2005
    DAVID G. HAYES, Judge, dissenting.
    The majority concludes that modification of the defendant’s sentence is required in light of
    the Supreme Court’s decision in Blakely v. Washington, 
    542 U.S.
    ______, 
    124 S. Ct. 2531
     (2004).
    I must respectfully dissent.
    The majority’s analysis of the issue ends with the finding of Blakely error. Clearly, this was
    not the import of the Supreme Court’s recent holding in U.S. v. Booker, 
    543 U.S.
    ___, 
    125 S. Ct. 738
    (2005), wherein the Court opined that not “every [Blakely/Booker] appeal will lead to a new
    sentencing hearing. That 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.’” No such test was performed in this case. After review, I find the evidence
    overwhelmingly supports application of sentencing enhancement factors (3), leader in the
    commission of the offense, and (11), the defendant committed a crime where the risk to human life
    was high. In the midst of a crowd of thirty to fifty people, the defendant began firing his weapon.
    Additionally, although not found by the trial court, the proof supports application of enhancement
    factor (10), employment of a firearm. The Supreme Court has held that generally to establish “plain-
    error,” the defendant must make a specific showing of prejudice. United States v. Cotton, 
    535 U.S. 625
    , 631, 
    122 S. Ct. 1781
    , 1785 (2002). Interestingly, the defendant does not contest factual
    application of the enhancing factors. Thus, failure to perform plain-error review as contemplated
    by the Supreme Court grants the defendant an undeserved windfall. I find that under plain-error
    review, had a jury heard the sentencing proof, they would have found the above factors applicable.
    For this reason, no prejudice is shown. Accordingly, I would affirm the sentence imposed by the trial
    court.
    _____________________________
    David G. Hayes, Judge
    

Document Info

Docket Number: W2004-00510-CCA-R3-CD

Judges: Judge David G. Hayes

Filed Date: 4/14/2005

Precedential Status: Precedential

Modified Date: 10/30/2014