### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON Marc h 4, 200 8 S es sio n
STA TE OF TEN NES SEE v. CRAIG A BSTON

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 02-04759 J.C. M cLin, Presidin g Judge

No. W2007-00019-C CA-R 3-CD - July 10, 2009

Def endant, f ollowing a jury trial, was c onvicted of one count of sec ond degre e murder and two counts of attempted se cond degr ee mur der. The trial c ourt sentenc ed De fendant to twenty year s for Count 1, second degr ee mur der, twe lve yea rs for Count 2, attempted se cond degr ee mur der, a nd eight ye ar s f

o r Co u n t 3 , a tt e mp te d s e c o n d d e g r e e mu r d e r

. Co u n ts 1 a n d 2 w e r e o r d e r e d to run concur rently to ea ch other

but consec utively to Count 3 for a total e ffe ctive sentenc e of twe nty-eight year s. On appe al, Def

endant argue s: ( 1) the trial c ourt err ed in its remar ks to the jury venire ; (2) the tr ia l c ou rt e rr e d ina llo wi ng the te sti mon y of Ser ge a nt Be rryman tha t De fe nd a nt ha d tw o g oldte e th at the time he wa s interviewe d; and (3) the trial court e rre d in imposi ng consecu t i ve sente ncing. After a thorough re view of the rec ord, we aff irm the convictions. We reduc e the sentenc e in C ount 2 from twelve year s t o ei g h t year s. Further, we reve rse the judgments only insofar as they orde r consec utive sentenc ing , and re mand for a new se ntencing hea

ring solely to determine w hether
consec utive sentenc ing should be imposed. Tenn. R. App . P. 3, Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed in Part, Reve rsed in Part and Remanded

T H O M A S T. W OOD ALL , J

. , d e li v e r e d th e o p in io n o f th e c o u r t, in which N OR MA M C G EE O GLE and D. K EL LY T HOMAS , Jr., joined. William D. Massey and Lorna S. McClus ky, Memphis, Tennesse e (on a ppeal) ; and Alan Chambe rs and Ha ndel R. Durham, Jr., Me mphis, Tennessee (at trial) , for the a ppellant, Craig Abston

Rob e rt E. Coo pe r, Attorne y Ge ne ra l and Re po rt e r; Da vid H. Fin dle y, As sis ta nt A tto rn e y G e ne ra l; W ill ia m L . G ibb on s, D i s t

ri c t A tt o rn e y G e n e r a l ; Paul H a ge rm a n, As sis ta nt D ist ri c t A tto rn e y G e ne ra l; Valerie Smith, Assi stant District Attorney Ge nera l, for the Appe llee, the State of Tenne ssee

OP IN ION-2-

Although Defe ndant does not cha llenge the sufficie ncy of the evidenc e to convict him of one count of sec ond degre e murde r and two c ounts of attempted second degre e murder, a brief overview of the fa c ts i s n e c e ssa

ry to a dd re ss the iss ue s r a ise d o n a pp e a l.

I. Bac kgr ound

Def endant and the vi ctim wer e invol ved in a car accide nt on the ni ght of Oc tober 5, 2001. Th e vic tim wa s d ri vin g a re d Cr ow n V ic toria

a ndwa s r e ar- e nd e d b y th e drive r o f a blu e se da n in wh ic h D e fe nd a nt w a s ridi ng wh en th e vi cti m trie d to make a tur n. Both d ri ve rs go t ou t of the ir vehicles to inspec t the damage . Def endant a lso got o u t o f t h e bac kseat on the driver’s side of the blue ca r af ter the a ccide nt occur

red. Bria n Sanders a nd Joseph Topps wer e riding in the ca r with the vic tim wh e n th e a c c ide nt o c c ur re d. Mr . Sa nd e rs saw thevic tim a ndDe fe nd a nt g e t ou t of the ir respe ctive vehic l es t o i n s pect the damage. He then hea rd the victim say, “Y ou hit my car,” and Def endant r esponded, “ So what, we hit your c ar, H oover Crip.” Mr. Sander s hear d Def endant r epeat this severa l times as the victim opened the door to get back in the car

. Def endant ke pt talking and the victim got back out of the c ar, and Mr. Sander s hear d gunfire. Mr . San d er s d i d not see the shooting, but di d identify Def endant as the person who got out of the ba ckseat of the blue c ar a nd yelled at the vic t i m . Mr. Topps testified to the same details and a lso did not know who from the blue ca r fired the gunshots. The only identifying fe ature Mr. Topps saw w as that the shooter had two gold teeth.

Don Cottrell w as d ri v i n g a vehicle which wa s two car s behind the victim’s red c ar on the night of t he incident. He saw the vi ctim’s car try to turn, and that it was rea r-e nded by the blue c ar in w h i ch De fe n d ant was riding. Bot h drivers got out of their vehicles and inspected the damage

. The victim got back into his car like the a ccide nt was “no big de al” a nd the driver of De fenda nt’s
car also returned to his vehicle. The blue ca r then pulled up next to the driver of the red c ar and Mr. Cottr e ll s a w s ho ts b e ing fi re d fr om the ba c k seat on th e drive r’ s si de of the blu e c ar. Mr . Co ttr e ll d id not see a nyone in the re d car with a wea

pon.
The victim died of a

9 milli meter gunshot wound to his che st. The Def endant’ s father , Gre gory Abston, was a sked by his stepson and De fendant’s brother, Renarld Gardner , to dispose of a 9 millimeter handgun in Oc tober 2001. Mr. Abst on threw the gun off a bridge int o the Mississi ppi River. Sergeant Nathan Be rryman took De fendant’s statement with his mother prese nt. Defe ndant was sixteen at the time of t he incident. Def endant state d that afte r the wr eck the victim pulled out a gun and shot at t hem, s o Def endant grabbed his brother’ s gun from underneath the se at and f ired ba c k. He st ate d tha t he wa s n ot l oo kin g w he re he sh ot andtho ug ht h e fi re d a bo ut s e ve n s ho ts. Sergeant Berryma n testified t hat when he int ervie wed Defe ndant, Defenda nt had two gold ca ps on his teeth.

II. Ana lys is-3-

On appe al, Def

endant c ontends that the trial court erre d in its remarks to the jury venire , that the tr ia l c ou rt

e rr e d ina llo wi ng the te sti mon y o f S e rg e a nt B e rryman r e ga rd ing Defen dant’ s g old te e th, a ndthat th e tr ia l c ou rt e rr e d inimp os ing c on se c uti ve se nte nc e s.
A. Remarks to the Jury Venire

Def endant c ontends that the trial court erre d by informing the jury venire that the prosec utor repr esente d the people of the State and that they ( th e jury venire) w ere obligated to convict De fe nd a nt i f the y f

ou ndthe State pr e se nte d p ro of of gu ilt be yo nda re a so na ble do ub t. D e fe nd a nt d id
no t ob je c t to e ith e r o f the se state me nts a t tria l, but no w con te nd s th a t bo th s ta te me nts c on sti tut e e rr or

. By faili ng to make a c on te mpo rane ou s ob je c tio n a t tr ia l, De fe nd a nt wa iv es ap pell a te consideration of the issues, See State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000) , unless the er

rors rise to that nece ssary for this Court t o conduct a

plain err or ana lysis.

Acco rdi ng ly, we mus t r e vie w h is a rg ume nts un de r the do c tr ine of “ plain e rr or .” Te nn . R. Crim. P. 52(b); S tate v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994) . An er ror whic h has af fec ted the substantial right of a defe ndant may be noticed at any time in the discretion of the appellate court whe re ne cessa ry to do substantial justice. State v. Taylor, 992 S

. W. 2 d 941, 944 (Tenn. 1999) . There are five fact o rs wh i ch m ust be prese nt for a c ourt to determine “ plain err or”
e xis ts: (a ) the re c or d mu st c le arl y e sta bli sh wh a t oc c ur

re d inthe tr ia l c ou rt ; (b ) a c le ar andun e qu ivo c a l rule of la w m us t ha ve be e n b re a c he d;
(c ) a su bs ta nti a l r igh t of

the a c c us e d mu st h a vebe e n a dv e rs e ly a ff e c te d; (d) the a ccuse d did not waive the issue f or tac tical re asons; and
(e) consideration of the err or is “nec essary to do substantial just ice.”

State v. Smit h, 24 S

. W. 3 d 2 7 4, 282 (Tenn. 2000) (citing Adkisson, 899 S.W.2d at 641-42). Complete consideration of al l five fa ctors is unnec essary if at lea st one is absent. Id. at 283. Furthermore , the plain er

ror must be such that it probably change d the outcome of the trial. Id.

In t he ins tant case , neither statement by the t rial court satisfies the eleme nts nece ssary for us to determine w hether

“plain err or” exists. While the re cord doe s establish clea rly the statements that
we re mad e by th e tr ia l c ou rt , th e re is n o c le ar andun e qu ivo c a l la w that w a s b re a c he d b y th e se statements. This Court has previously addressed a claim by a de fendant rega rding the statement that the prosec utor repr esente d the people of the State. See State v. Pamela Maxine Bogle, No. 86- 258- III , 1987 WL 15193, at *5 (Tenn.Crim. App., at Na shville, Aug. 7, 1987) ,perm. to app. denied, (Tenn. N ov. 9, 1987). In Bogle, the pr osecutor, in his cl o s i n g ar g u m ent s tated, “But what we [lawye rs] do is, we r epre sent one side or th e o t h er , and I r epre sent the people of the State of Tenne ssee. A n d th e p e o p le - n o t [ th e p r o s e c u to r ] , b u t th e p e o p le o f th e St a te o f

T e n n e s s e e , are asking you to find her guilty. ” B o g l e, 1987 WL15193, at *5. This Court determined that the-4-

comment made to the impane led jury during closing ar gument was not unfa irly prejudicial. Id. In the instant case , the comment, while made by the trial court a nd not the prosec utor, was made to the jury venire befor e voir dire, befor e impaneling of the jury, and bef ore c losing argument. Given the d e c is io n in Bo g le a n d th e ti mi n g o f th e tria l c o u r t’ s r e ma rk s , w e ar e u n ab le to c o n c lu de that the statement that the prosecutor “repr esents the State of Tennessee” brea ches a clea r and une quivocal rule of la w, adve rsely af

fec ts a substantial right of Def endant, or that consideration of it is “nece ssary to do substantial just ice.”

The sec ond statement at issue occur red w hen the tria l court, in its remarks to the jury ve nire, stated that if they de termined t h e S t at e proved its ca se beyond a rea sonable doubt they we re obligated to convict. The trial court a lso informed the jury they wer e o b l i g at ed to acquit if they determined the State did not pr ove its c ase beyond a r easona ble doubt. Assuming, arguendo, that it was err or for

the trial court to use the word “ obligated” that err or wa s negate d when the trial court instructed the impane led jury in the j ury charge. In t he jury char ge, the trial court inst ructe d the jury that “if you should find beyond a rea sonable doubt that the de fendant is guil ty of this offense

. . . your ver dict should be guilty. . . . If you find the def endant not guilty of this offense , or if you have
rea sonable doubt of his guilt of this offense, you will ac quit him t here of .” A ny implication that the trial court ha d direc ted the jury to find one w ay or another in the opening rema rks t o the venire was
rec tified by the instructions in the formal jury c harge . Further, any e rror committed by the trial court does not give rise to plain err or revie w by this Court. Acc ordingly, Def endant is not entitled to relief as to these state ments at issue. B. Sergeant Ber

ryman’s Te stimony

Def endant c ontends that the trial court erre d by allowing Sergeant Berryman to testify that when he interviewe d Def

endant, he thought he reme mbere d Def endant having two gold teeth. The te sti mon y at is su e wa s a s f oll ow s:
A S S I S TANT D I S TR I CT A TTORNEY : Do you know anythi n g ab o ut his appear ance that day?

S ER GEANT B ER R YMAN : Nothing that - I think he had two gold caps on his teeth.

Def endant objec ted based on rele vance

. At a bench confere nce, the defe nse counsel argue d that the testimony was not relevant because Serge ant Berryman had a lrea dy identified Def endant a s the pe rs on he int e rv ie we d in re ga rdto the sh oo ti ng on Oct obe r 5 , 2 00 1. Th e State a gr e e d to thi s state me nt o f f

a c t bu t f urthe r a rg ue d th e pr oo f w a s r e le va nt be c a us e Se rg e a nt B e rryman o nly identified the pe rson h e i n t erviewed a nd that this testim ony related to the per son seen shooting at the sc e ne of the inc ide nt. Th e State inf orme d th e tr ia l c ou rt

that it e xp e c te d at le a st o ne a ndpo ssi bly two other witnesse s to testify that the s hooter that evening had two gold teeth. The de fense counsel the n a rg ue d th a t D e fe nd a nt a dmi tte d to sh oo tin g a gu n th a t e ve nin g b ut that it wa s in se lf

-d e fe ns e a ndthe re a l me ssa ge the Sta te wa s tryin g to pr e se nt to the jury wa s “ go ld t e e th a s it ’s a sso c ia te d w ith young black men.” The trial c ourt co n cl u d ed the testimony was r eleva nt because it went to the-5-

identity of the shooter. Joseph Topps later testified that the person he saw shoot a gun that eve ning had two gold teeth.

“‘Rele vant evidenc e’ me ans evide nce ha ving any tendenc y to make the e xistence of any fa ct that is of c on se qu e nc e to the de te rm inatio n o f the a c tio n mo re pr ob able or le ss p ro ba

ble than it wo uld be without the evidenc e.” T en n . R. Evid. 401. Evidence w hich is not releva nt is not admiss ible. Tenn. R. Evid. 402. Relevanc e is determined by the issues presen t ed fo r resolution in the trial which, in turn, ar e dete rmined by the e lements of the of fense char ged and the defe nse asse rted by the ac cused. State v. D ubose, 953 S.W.2d 649, 653 (Te nn. 1997). The sta ndard of re v i ew of admissibili ty of evidenc e under Tenne ssee Rules of Evidence 401 and 402 is abuse of discretion. Id. at 652. In the instant c ase, the trial court did not abuse its discr etion when it de termined that the State had th e ri g ht to submi t testimony t o the jury that whe n Sergeant Berryman interviewed Def endant he had two gold te eth. Any infere nces dr awn f rom this testim ony wer e we ll within t he prer ogative of the jury. See Mara ble v. State, 313 S.W.2d 451, 457 (Tenn. 1958) ; See also State v. Gre gory, 862 S.W.2d 574, 577 (Te nn. Crim. App. 1993)

. Thus, Def endant is not entitled to relief as to this issue.

Def endant, on a

ppeal, a rgues that Ser geant Ber

ryman’s te s t i m o ny should not have bee n admitted beca

use he la cked the requisite persona l know ledge to make the statement. How ever , since Def endant c anno t change theories f rom the trial court to the appellate c ourt, this issue is waived. State v. Dooley, 29 S.W.3d 542, 549 (Te nn. Cr i m . App. 2000). Ac cordingly, De fendant is not entitled to relief a s to this i ssue. C. Consecutive Sentencing

Def endant’ s next argume nt is that the t rial court err ed when it order ed his sentenc es to run consec utively to each othe r bec ause the trial court f ailed to establish that Defe ndant was a danger ous offe nder.

A trial court may order sentenc es t o run consecutively if the c ourt finds by a pre pondera nce of the e vid e nc e that: (1) [ t]he de fendant is a profe ssional criminal wh o h as knowingly devoted such defe ndant’s life to c riminal acts as a major sourc e of livelihood;
(2) [ t]he de fendant is an offe nder w hose re cord of criminal ac tivity i s extensive;
(3 ) [t]he defe ndant is a dange rous mentally abnormal person so de clar ed by a
c omp e te nt p sy c hiatr ist

wh o c on c lud es as a res ult of a n in ve sti gatio n p ri or

to sentenc ing that the defendant’s criminal conduct has been c hara cterized by a pattern of re pe tit ive or

c omp uls ive be ha vio r w ith he e dle ss i nd if fe re nc e to c on se qu e nc e s; (4) [ t]he de fendant is a danger ous offe nder w hose b eh av i o r indicates little or no
re ga rd fo r hu ma n lif

e , a ndno he sit a tio n a

bo ut c omm itt ing a

c ri me in w hic h th e ri sk to human life is high;-6-

(5) [ t]he de fendant is convicted of two ( 2) or more statutory offe nses involving sexual abuse of a minor with consider ation of the a ggravating circumstance s arising from the r elationship betwee n the defe ndant and victim or victims, the time span of defe ndant’s undete cted se xual a ct i v i t y , the nature and scope of the sexua l acts and the e xte nt o f the re sid ual, p hy sic a l a ndme nta l dama ge to the vic tim or vic tim s; (6) [ t]he de fendant is sentenced f or an of fense committed while on probation; or
(7) [ t]he de fendant is sentenced f or criminal contempt. T.C.A. § 40-35-115( b); See a lso St ate v. I mfeld, 70 S.W.3d 698, 708 (Te nn. 2002). Furthermore , in the event the trial court finds defe ndant i s a “danger ous offe nder,” it must also determine whether the conse cutive sente nces ( 1) ar e re asonably re lated to the seve rity of the offe nses committed; (2)
se rv e to p ro te c t th e pu bli c fr om f urthe r c ri min a l c on du c t by the of fe nd e r; a nd(3 ) a

re c on gr ue nt w ith gener al principles of

sentenc ing. State v. Wilkerson, 905 S.W.2d 933, 939 (Te nn. 1995).

In the instant ca se, the trial c ourt fail ed t o s tate its rea soning for imposing consecutive sentenc ing. The State asks us to infer from the r ecor d that the trial court impo s ed consec utive
se nte nc ing be c aus e it f

ou nd De fe nd a nt to be a “ da ng e ro us of fe nd e r; ” ho we ve r, the re is n o s pe c if ic language in th e re co rd that supports this inferenc e. Ac cordingly, we rema nd this case to the tria l court for a new sentenc ing hearing solely fo r t h e p u rp o se of a ddressing the issue of c onsecutive sentenc ing.

D. Th e Ef fe c t of the Blake ly andCun nin gh a m D e c isi on s
Def endant lastly ar gues t hat hi s consec utive sentenc e viol ates Bl akely v. Washington, 542 U.S. 296, 124 S. C t. 2531, 159 L. Ed. 2d 403 (2004). We must also re view the length of the sentenc es imposed in light of Blakely.

At the time of the off

enses, Te nnessee Code Annotated section 40-35- 210(c) , (d) pr ovided:
(c) The presumptive sentenc e for a C lass B, C, D and E felony sha ll be the minimum sentenc e in the range if ther e ar e no e n h an ce m en t or mitigating factors. The presumptive sente nce f

or a Class A felony shall be the midpoint of the ra nge if ther e are no enhanc ement or mitigating fac tors. (d) Should there be enhanceme nt but no mit igating fac tors for a Class B, C , D, or E fe lon y th e n th e c ou rt

ma y s e t th e se nte nc e abo ve the min imu m in that ra ng e bu t st ill within the range . Should there be e nhance ment fac tors but no miti gating fac tors for a Class A fe lony, then the court shall set the sentenc e at or above the midpoint of the range

. . . . As a Range I standar d offe nder convicted of murder in the s econd de gree , a Class A fe lony, Def endant is subject to a se ntence betwee n fiftee n and twenty-five year s. T.C.A. § 40-35-112( a)( 1). The pre sumptive sentence for De fendant is twenty years. As a Range I sta ndard of fende r convic ted-7-

of attempted second degre e murder, a Class B felony, De fendant is subject to a sentenc e of be tween eight and twelve year s. Id. § 40-35-112( a)( 2). The pr esumptive sentenc e is the minimum s entenc e of eight yea

rs. In Blakely, the United States Supre m e C ourt held that “othe r than the f act of a prior conviction, any f

act that increa ses t he penalty for a c rime beyond the presc ribed statutory maximum must be submitt ed to a jury, and proved beyond a rea sonable doubt.” Blakely, 542 U.S. at 301, 124 S. Ct . at 2536 (quoting Appre ndi v. New Je rsey, 530 U.S. 466, 490, 120 S. Ct . 2348, 2362-63, 147 L. Ed. 2d 435 (2000). The Appre ndi c ourt noted that nothing “suggests that it is i mpermissible for judges to exer cise discr etion - taking into c onsideration various fac tors relating both to offe nse and offe nder - in imposi ng a judgment within the ra n g e pre scribed by statute.” Appr endi, 530 U.S. at 48 1, 12 0 S. Ct. a t 23 58 . I n a la te r c a se the Sup re me Cou rt he ld , “ if a Sta te make s a n in c re a se in a def endant’ s authorize d punishment contingent on a finding of fact, t hat fact - no matter how the State labels it - must be found by a jury beyond a rea sonable doubt.” Ring v. Arizona , 536 U.S. 584, 602, 122 S. Ct . 2428, 2439, 153 L. Ed. 2d 556 (2002). In Blakely, the Supre me Court define d the terminology of the “ s t atutory maximum” as applied in Appre ndi. The Court clarified t hat t he statutory maximum “is not the maximum sentence a judge may impose a fter f inding additional facts, bu t t h e maximum he may impose without any additional findings.” Blakely, 524 U.S. at 302, 124 S. Ct. at 2537. The Supre me Court again r estated this holdi ng in Cunningham.

In Cun n ingham, California’s se ntencing sche me (known a s DSL, determinate sentenc ing law) pr ovided for thr ee pr ecise terms of imprisonment - lower, middle, and upper . The de fenda nt in that c a se wa s sen te nc e d to the up pe r t e rm a ft e r the tr ia l c ou rt

fo un d a gg ra vatin g c ir c ums ta nc e s. The California

Penal Code controlled the judge’s choic e and pr ovided that “the c ourt shall order imposit ion of the middle term unless ther e ar e cir cumstance s in aggra vation or mitigation of the
c ri me .” Ca l. P e nal Co de § 1 17 0(b ) (Wes t Sup p. 20 06 ). Th e c ir c ums ta nc e in a gg ra vatio n o nly
nee d ed to be established by a preponde ranc e of the evidenc e. Cunningham, 549 U.S. at 288, 127 S. Ct . at 868. The Supreme Court held, “[ B]eca use circ umstances in aggr avation ar e found by the judge, not the jury, and ne ed only be e stablished by a pre ponderance of the evidenc e, not beyond a
rea sonable doubt, . . . the DSL violates Appr endi’s bright-l ine rule: Exc ept for a prior convic tion, ‘any f act that incr ease s the pena lty for a c rime beyond the prescribed statutory maximum must be submitt ed to a jury, and proved be yond a re asonable doubt.’” Id. ( citing Apprendi, 530 U.S. at 490, 120 S. Ct . at 2348).

In State v. Gomez, 239 S.W.3d 733 ( Tenn. 2007) ( Gomez I I), our Supreme Court re viewed the de fe nd a nts ’ s e nte nc ing c la ims un de r pla in er ro r anayls is. Go me z II , 2 39 S.W .3 d at 73 7 . Rul e 52 of the Te nnessee Rules of Criminal Procedur e provide s that “[w] hen nec essary to do substantial justice, an a

ppellate court may consider an err or that has a ffe cted the substantial rights of an ac cused at any time, eve n though the err or wa s not raised in a m o t i on for ne w trial or a ssigned as er ror on appea l.” Relief is gra nted under plain err or revie w “only wher e five prer equisites are met: (1) the
rec ord cle arly e stablishes what occur red in the trial court; (2) a cle ar and unequivoca l rule of law was brea ched; ( 3) a substantial right of t he accuse d was adverse ly aff ecte d; (4) the acc used di d not waive the issue for tactica l r easons; and (5) consideration of the err or is “ nece ssary t o d o s ubstantial-8-

justice.” Id. ( quoting St ate v. Smit h, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Te nn. Crim. App. 1994)).

Inthe ins ta nt c a se , th e re c or d c le arl y e sta bli sh e s w hat oc c ur

re d in the tr ial cou rt

in determining the length of Defe ndant’s sente nces, and thus the first prer eq u i s i t e is met. The trial court sente nced D efe ndant to twenty yea rs for Count 1, twelve year s for Count 2, and eight years for Cou nt 3

. W hil e the tr ia l c ou rt didno t e nh a nc e De fe nd a nt’ s se nte nc e fo r C ou nt 2 ba se d o n a sp e c if ic fac tor, it did sentence him to the statutory maximum o f twelve ye ars. Ne ither Blakely nor Cunningham forbid the enha nceme nt of a sente nce due to prior convictions, but Def endant doe s not have a criminal rec ord. There fore , for the f oregoing re asons, we r educe Def endant’ s sentence for Count 2 to t he pre sumptive sentence of eight yea rs.
T h e United St ates Supreme Court has held that Blakely does not impac t consec utive
se nte nc ing . O re go n v . I c e , 1 29 S. Ct . 7 11 , 17 2 L. Ed . 2 d 5 17 (2 00 9) . O ur Sup re me Cou rt

ha s a lso held that Blakely does not impac t c onsecutive sentenc ing. The Court stated that the “ d ec ision whether to impose consecutive sentenc es for multipl e crimes is a decision about the ma nner in whic h a def endant se rves his or her multipl e punishments.” The Court further held: “Appr endi and Blake ly simply do no t re qu ir e a jury to d e te rm ine the ma nn e r i n w hic h a de fe nd a nt s e rv e s mu lti ple sentenc es.” State v. Allen, 259 S.W.3d 671, 689-90 (Tenn. 2008). Def endant is not entitled to relief as to this issue.
CO NC LU SION

For the fo re go ing re a so ns , the jud gme nts of the tr ia l c ou rt are a ff ir me d in pa

rt , r e ve rs e d in part, a nd rema nded in part for a ne w sentenc ing hearing solely for the purpose of addr essing the issue of conse cutive sente ncing.

___________________________________ THOMAS T. WO ODALL, JU DGE