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September 4, 2004

Tennessee's functionality meets Blakely's formalism

In this post I focused on Ohio sentencing law to highlight that Blakely's formal rule is so consequential (and confusing) because functionality, not formalism, is the hallmark of many facets of sentencing reform. Another interesting example of these dynamics emerged from Tennessee this past week in State v. Bellamy, 2004 WL 1936384 (Tenn. Crim. App. Aug. 31, 2004), where the court was addressing the state's functional presumption for "alterntive sentencing" in its sentencing laws.

The majority's opinion in Bellamy actually avoided discussing what Blakely might mean for the state presumption for an alterntive sentence, though it did helpfully explain this part of Tennessee sentencing law:

In regards to alternative sentencing, Tennessee Code Annotated section 40-35-102(5) provides as follows: "In recognition that state prison capacities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration." A defendant who does not fall within this class of offenders "and who is an especially mitigated offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary." Id. § 40-35-102(6).

Though the majority did not speak at all to how Blakely might impact the application of this provision by sentencing judges, Judge James Curtwood Witt concurring did so in this thoughtful way:
In my view, we must recognize the possibility that Blakely v. Washington, hampers a trial judge's authority to make the fact findings necessary to overcome the statutory presumption of favorable candidacy for alternative sentencing....

The defendant in the present case enjoyed the presumption of Code section 40-35-102(6), and it behooved the trial court, in imposing a sentence of confinement, to offset the presumption by finding any, or any combination, of the factual premises listed in section 40-35-103(1), such as, the need to protect society from an offender with a long history of criminal conduct or the ineffectiveness of prior non-confinement measures. See id. § 40-35- 103(1)(A)(C) (2003). That factual determination is in addition to the facts explicitly or implicitly established by the defendant's guilty plea....

[T]he High Court in Blakely did not speak in narrow terms that targeted merely the length of an accused's sentence; rather, it spoke in broad terms of the state's power to punish: "When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,'... and the judge exceeds his proper authority." Id. (quoting 1 J. Bishop, Criminal Procedure, § 87, p. 55 (2d ed. 1872) (emphasis added). Thus, Blakely seems to have impact on Tennessee's scheme of presuming favorable candidacy for alternative sentencing because whether to confine or not confine is, in a general sense, an issue of punishment....

That said, we know that the Sixth Amendment's prohibition of increasing punishment beyond the "statutory maximum" based upon an additional judge-made finding does not apply to "the fact of a prior conviction." In the present case, the defendant's record of prior convictions is substantial. Although the pertinent factual premise for overcoming the presumption of favorable candidacy for alternative sentencing addresses prior "history of criminal conduct," a standard that does not necessarily limit consideration to conduct that resulted in convictions, the defendant does have an extensive record of prior convictions. For that reason, I believe that the trial judge could have properly based his confinement order on the record of prior convictions, and even if Blakely does apply to Code section 40-35-102(6)'s presumption, the court's use of sentencing factors other than prior criminal convictions would be harmless beyond a reasonable doubt.

September 4, 2004 at 01:14 PM | Permalink

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