State of Tennessee v. James Johnson - Concurring and Dissenting

I concur with the majority opinion on all issues except that portion which modifies the sentence to twenty-one years. I agree that the United States Supreme Court’s opinion in Blakely v. Washington, 542 US ____, 124 S.Ct. 2531 (2004), questions the validity of Tennessee’s sentencing scheme. I agree that prior to Blakely, this Court’s holding should be that enhancement factors (11) and (17) could not be applied, but that the remaining enhancement factors, (2), (6), and (10), would be applicable. However, under Blakely, it is clear that only evidence of prior convictions can be used to enhance a sentence without a jury making a determination of the existence of an enhancement factor, or where the jury determination is waived by the defendant, or where the application of another enhancement factor is “admitted” by the defendant. The term “admitted by Defendant,” while seemingly clear at first glance, has not been conclusively defined by judicial decision. The United States Supreme Court in Blakely may have meant “admitted” in the context of a judicial proceeding such as a guilty plea hearing with the solemnity of a guilty plea. Or, the Court possibly meant an admission by a defendant in testimony at a sentencing hearing. Thus, the meaning of the term “admitted by the defendant” is subject to debate, and is better left to appellate review when that precise issue has been squarely addressed by a trial court and thereafter raised on appeal.