IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 21, 2004

STATE OF TENNESSEE v. ROSE MARIE HERNANDEZ

Direct Appeal from the Bedford County Circuit Court

No. 15,231 Lee Russell, Judge

No. M2003-01756-CCA-R3-CD - Filed December 16, 2004

The defendant, Rose Marie Hernandez, pled guilty to seventy counts of forgery, a Class E felony,

which the trial court merged into thirty-five convictions of forgery, and the trial court sentenced her

as a Range III, persistent offender to five years and six months for each conviction. The trial court

ordered some of the sentences to run concurrently and others to run consecutively for an effective

sentence of thirty-three years and six months in the Department of Correction. The defendant

appeals, claiming the trial court erred in applying certain enhancement factors in violation of the rule

announced in Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and in denying

alternative sentencing. Although we conclude that the sentencing procedure violated the rule

announced in Blakely, we hold it to be harmless beyond a reasonable doubt. We affirm the

judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOSEPH M. TIPTON, J. delivered the opinion of the court, in which JOE G. RILEY, SP. J., joined.

ROBERT W. WEDEMEYER, J., concurred in the result.

Andrew J. Dearing, III, Shelbyville, Tennessee, for the appellant, Rose Marie Hernandez.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney

General; W. Michael McCown, District Attorney General; and Michael Randles, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

This case relates to the defendant’s forging checks. The Bedford County Grand Jury indicted

the defendant for seventy counts of forgery, thirty-five for making forged checks and thirty-five for

passing them, and one count of custodial interference. At the plea acceptance hearing, the State

recited the facts that it would have proved at trial as follows:
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[I]n December of [2002], Mr. Donald Gibbs went to the sheriff’s department to

report that some of his checks had been stolen and apparently forged. A joint

investigation was conducted by the [Bedford County] sheriff’s department and [the

Shelbyville] police department[, a]nd they developed an investigation that led them

to the defendant. They went to some merchants where the checks had been forged

with a photo lineup to include the picture of the defendant[,] and [] several of the

merchants picked the defendant as having been the person that passed the checks.

They then interviewed the defendant and she admitted she took his checkbook and

she admitted to forging and passing a number of the checks.

The defendant pled guilty to the seventy counts of forgery, and the trial court dismissed the custodial

interference charge. The trial court merged the thirty-five counts of making forged checks with the

thirty-five counts of passing them for a total of thirty-five convictions of forgery, one for each forged

check. Pursuant to the plea agreement, the trial court was to determine sentencing.

At the sentencing hearing, the State entered the defendant’s presentence report into evidence,

which showed she had twenty prior convictions for forgery, two prior convictions for theft under

$500, and one prior conviction for driving under the influence of an intoxicant. The report also

showed that the defendant had previously been sentenced to probation or community corrections,

that she had violated the terms of her release into the community on four separate occasions, and that

she committed the current forgeries while on parole. 

The defendant testified that she was participating in a substance abuse and relapse prevention

program at the Tennessee Prison for Women. She explained that the program took a year to

complete and included anger management, relaxation techniques, and counseling. She said the

counseling was helping her deal with sexual abuse that she experienced as a child. She said that she

has progressed through the substance abuse program and that at the time of the trial, she was

“representing” some of the inmates at counseling and mentoring other inmates. 

The defendant testified that her use of illegal drugs had led to the loss of her children,

husband, sister, dad, and home. She said she had been in a lot of trouble because of her drug

addiction. She said, “I have made a lot of mistakes. I have violated my community corrections; I

did violate my parole.” She said, however, that she was learning from her mistakes. The defendant

also presented an affidavit from a counselor in Morristown, Tennessee, who stated that the defendant

had a good heart and that she was willing to help the defendant through the process of recovery. 

The state asserted that the defendant qualified as a career offender, but the defendant

challenged some of her prior convictions by asserting that they were not separate and distinct

episodes. The trial court determined the defendant was a Range III, persistent offender. Because

the counts of forgery were Class E felonies, the available sentence range was four to six years for

each conviction.
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The trial court applied the following enhancement factors pursuant to T.C.A. § 40-35-114:

(2) a prior history of criminal convictions in addition to those used to determine the appropriate

range; (9) a previous history of unwillingness to comply with the conditions of release; and (14) the

crimes occurred while the defendant was on parole. The trial court also applied mitigating factors

(1) and (13), but it did not afford them great weight. See T.C.A. § 40-35-113(1), (13). The trial

court sentenced the defendant to five years and six months in prison for each of the thirty-five

convictions.

When deciding whether to run the defendant’s sentences concurrently or consecutively, the

trial court found that the fact the forgeries were committed while the defendant was on parole and

the fact that the defendant had an extensive criminal record overcame the presumption in favor of

concurrent sentencing. See T.C.A. § 40-35-115(b)(2), (6). The trial court ordered the sentences for

twenty-nine of the counts run concurrently with the sentences for six of the counts. It then ordered

those six counts run consecutively to each other, for an effective sentence of thirty-three years and

six months in prison. 

The trial court next determined that the defendant was not an appropriate candidate for

alternative sentencing. After considering the factors provided by statute, the defendant’s physical

and mental condition, her social history, the facts and circumstances surrounding this particular

offense, her prior criminal history and her previous actions and character, the trial court found that

the presumption in favor of alternative sentencing was overcome because the defendant’s potential

for rehabilitation was reasonably unlikely. The trial court also found that a high risk existed that

the defendant would commit another crime while on probation. The defendant appeals, contending

that the trial court improperly denied her alternative sentencing and improperly applied the

enhancement factors in violation of Blakely. The state argues that the trial court properly denied

alternative sentencing and that the defendant has waived any Blakely issues by failing to present

them in the trial court. In the alternative, the state contends that any Blakely violations were

harmless beyond a reasonable doubt.

I. SENTENCING ANALYSIS

Appellate review of sentencing is de novo on the record with a presumption that the trial

court’s determinations are correct. T.C.A. § 40-35-401(d). As the Sentencing Commission

Comments to this section note, the burden is now on the appealing party to show that the sentencing

is improper. This means that if the trial court followed the statutory sentencing procedure, made

findings of fact that are adequately supported in the record, and gave due consideration and proper

weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act,

we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness which accompanies the trial court’s action is

conditioned upon the affirmative showing in the record that the trial court considered the sentencing
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principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991). In this respect, for the purpose of meaningful appellate review,

the trial court must place on the record its reasons for arriving at the

final sentencing decision, identify the mitigating and enhancement

factors found, state the specific facts supporting each enhancement

factor found, and articulate how the mitigating and enhancement

factors have been evaluated and balanced in determining the sentence.

T.C.A. § 40-35-210(f) (1990). 

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994). In conducting a de novo review, we must

consider (1) the evidence, if any, received at the trial and sentencing hearing, (2) the presentence

report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the nature and

characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any

statement that the defendant made on his own behalf, and (7) the potential for rehabilitation or

treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby, 823 S.W.2d at 168; State v. Moss, 727

S.W.2d 229, 236-37 (Tenn. 1986).

The range of punishment for a Range III, persistent offender is four to six years for a Class

E felony. T.C.A. § 40-35-112(c)(5). Unless enhancement factors are present, the presumptive

sentence to be imposed is the minimum in the range. T.C.A. § 40-35-210(c). Our sentencing act

provides that procedurally, the trial court is to increase the sentence within the range based on the

existence of enhancement factors and, then, reduce the sentence as appropriate for any mitigating

factors. T.C.A. § 40-35-210(d), (e). The weight to be afforded an existing factor is left to the trial

court’s discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act

and its findings are adequately supported by the record. T.C.A. § 40-35-210, Sentencing

Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.

We first consider whether the trial court’s application of certain enhancement factors violated

the defendant’s right to trial by jury. The trial court complied with the principles of the 1989

Sentencing Act when it applied enhancement factors (2), (9), and (13) to increase each of the

defendant’s sentences from four years to five years and six months. However, the United States

Supreme Court’s Blakely decision affects the portion of our 1989 Sentencing Act that allows judges

to find applicable certain enhancement factors and use those factors to increase a defendant’s

sentence above the presumptive sentence in the range. See Blakely, 524 U.S. at __, 124 S. Ct. at

2537; State v. Chester Wayne Walters, No. M2003-03019-CCA-R3-CD, White County, slip op. at

19-21 (Tenn. Crim. App. Nov. 30, 2004). Blakely specifies that other than prior convictions, any

facts not reflected in the jury’s verdict or admitted by the defendant which are used to increase a

defendant’s punishment above the presumptive sentence must be found by the jury, not the trial

court. 524 U.S. at __, 124 S. Ct. at 2537. 

The defendant testified at her sentencing hearing and acknowledged her prior convictions,

which Blakely allows the trial court to use for enhancement purposes. However, the defendant also
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admitted in her testimony to substantial and continuous illegal drug use, to consistent violations of

the terms of her prior sentences involving release into the community, and to commission of the

forgeries while on parole. The presentence report buttressed these admissions. In context, the

admissions would support factors (2), that the defendant has a previous history of criminal behavior,

(9), that the defendant has a history of unwillingness to comply with conditions of a sentence

involving release into the community, and (14), that the defendant committed the instant offenses

while on parole. Judge Wedemeyer maintains his view held by the majority in Walters that an

admission by the defendant at a sentencing hearing may justify application of enhancement factors

without violating Blakely. However, the majority of this court concludes that the defendant’s

admissions did not constitute admission in the Blakely context and, therefore, that the trial court’s

application of factors (2), for criminal behavior, (9), and (13) violated the defendant’s Sixth

Amendment right to trial by jury. We conclude, though, that Blakely errors are subject to

constitutional harmless error analysis. See Walters, slip op. at 23-25. In this regard, given the

defendant’s testimonial admissions, we hold that the trial court’s application of the foregoing

enhancement factors was harmless beyond a reasonable doubt. 

The trial court also ordered six of the defendant’s sentences to run consecutively to the others

by finding that the defendant committed the forgeries while on parole and by finding that the

defendant had an extensive criminal history. See T.C.A. § 40-35-115(b)(2), (6). We note that

although the defendant has not raised this issue on appeal, this court has held that Blakely does not

apply to consecutive sentencing determinations. See State v. Earice Roberts, No. W2003-02668-

CCA-R3-CD, Shelby County, slip op. at 15 (Tenn. Crim App. Nov. 23, 2004); State v. Lawrence

Warren Pierce, No. M2003-01924-CCA-R3-CD, Davidson County, slip op. at 16 (Tenn. Crim. App.

Nov. 9, 2004). We agree with Roberts and Pierce and likewise conclude that Blakely does not affect

consecutive sentencing determinations.

We next consider whether the trial court erred in denying the defendant alternative

sentencing. The defendant implies that she is presumed to be a favorable candidate for alternative

sentencing pursuant to T.C.A. § 40-35-102(6). She mainlyarguesthat probation was warranted. We

note, though, that she is a Range III, persistent offender to whom the favorable presumption does not

apply. Id.; State v. Anderson, 985 S.W.2d 9, 18-19 (Tenn. Crim. App. 1997). In any event, the

burden was on her to establish her suitability for probation. T.C.A. § 40-35-303(b) Sentencing

Commission Comments. In order to meet this burden, the defendant “must demonstrate that

probation ‘will subserve the ends of justice and the best interest of both the public and the

defendant.’” State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995) (quoting State v.

Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)).

No bright line rule exists for determining what is necessary to demonstrate that probation will

serve the ends of justice and the best interest of both the public and the defendant. See Bingham,

910 S.W.2d at 456. In determining whether to grant or deny probation, the trial court must consider

the circumstances surrounding the offense; the defendant’s criminal record; the deterrent effect on

other criminal activity; the defendant’s physical and mental health; the defendant’s background and

social history; and the likelihood that probation is in the best interests of both the defendant and the
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public. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Parker, 932 S.W.2d

945, 958 (Tenn. Crim. App. 1996). A trial court may deny a defendant’s request for alternative

sentencing and sentence a defendant to confinement based on any one of the following

considerations:

Confinement is necessary to protect society by restraining a defendant

who has a long history of criminal conduct;

Confinement is necessary to avoid depreciating the seriousness of the

offense or confinement is particularly suited to provide an effective

deterrence to others likely to commit similar offenses; or

Measures less restrictive than confinement have frequently or recently

been applied unsuccessfully to the defendant. 

T.C.A. § 40-35-103(1)(A)-(C).

In denying the defendant alternative sentencing, the trial court stated:

There is a presumption in favor of alternative sentencing [if the

defendant is a] mitigating or standard offender in a C, D or E

[felony]; that’s not the case. Even if she were, certainly the

presumption would be overcome in this particular case for several

reasons. One is her prior record and her tendency to violate on an

ongoing basis the terms of her release into the public, [this] suggests

that she has little or no potential for rehabilitation. And that is a

factor that’s set out in [T.C.A. §] 40-35-103, subpart five. Her record

has been to violate, sometimes not caught for a while, she would use

illegal drugs extensively and not get caught for a while; invariably,

she does get caught doing illegal activity, ordinarily something to

support this drug habit of hers. Certainly she is a very poor candidate

for alternative sentencing. 

I have taken into account all those factors set out by statute

when making a determination as to whether someone is entitled to

alternative sentencing. I have read the presentence report, the

defendant’s physical and mental condition, her social history, the

facts and circumstances surrounding this particular offense, her prior

criminal history, her previous actions and her character.

In this case, it’s very important that I consider whether or not

the defendant might reasonably be expected to be rehabilitated and

her potential or her lack of potential to be rehabilitated. I believe

there is very little of that. I think there is a high risk during the period

of any probation that she would commit another crime. It does not
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appear, reasonably appear that she would abide by the terms of

probation. And for these reasons, I am going to deny her probation.

We conclude that the trial court properly considered the relevant sentencing principles. Accordingly,

we will conduct a de novo review of the record with a presumption that the trial court’s sentencing

determinations are correct. See T.C.A. § 40-35-401(d). 

The defendant cites State v. Smith, 735 S.W.2d 859, 864 (Tenn. Crim. App. 1987), and

asserts that evidence must show that the sentence imposed will have a deterrent effect within the

jurisdiction before a trial judge is justified in denying probation. The trial court, however, did not

deny the defendant’s request for alternative sentencing based upon deterrence. It denied alternative

sentencing because “her prior record and her tendency to violate on an ongoing basis the terms of

her release into the public, suggest[s] that she has little or no potential for rehabilitation.” The trial

court determined that the defendant should serve her sentence in confinement because of a lack of

potential for rehabilitation. We agree with the trial court’s findings. The defendant has been given

the opportunity to rehabilitate herself under less restrictive means, and she has failed to take

advantage of these opportunities. Moreover, the extensive record of criminal activity indicates that

she is not a good candidate for alternative sentencing. The record supports the trial court’s findings

and its determination denying the defendant probation or any alternative sentence. We conclude that

the defendant has not met her burden of demonstrating the impropriety of the trial court’s decision.

Based upon the foregoing and the record as a whole, we affirm the judgments of the trial

court.

 ___________________________________ 

JOSEPH M. TIPTON, JUDGE