IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE v. JOHN C. WALKER, III

Circuit Court for Putnam County

No. 02-0306

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No. M2003-01732-CCA-R3-CD - Filed February 8, 2005

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ORDER

This matter is before the Court on a motion to rehear, pursuant to Rule 39 of the

Tennessee Rules of Appellate Procedure. In his motion, the defendant challenges both the

application of enhancement factors absent a jury finding, following the holding in Blakely v.

Washington; and the rejection of three mitigating factors. Initially, we note that the latter is not

cognizable in this proceeding; Tennessee Rule of Appellate Procedure 36(a) states: “A

rehearing will not be granted to permit reargument of matters fully argued.” In the instant case,

the trial court’s rejection of the mitigating factors in question was fully litigated on direct appeal;

as such, our analysis will be confined to the applicability of the enhancement factors in light of

the Supreme Court’s holding in Blakely. 

Waiver

A necessary first step in our analysis is to address the State’s argument that the defendant

waived any Blakely challenge for failing to raise the issue earlier. I am in agreement with the

opinion of Judge Woodall, which states:

Assuming that [the defendant] in this case had argued in the trial court, under

Apprendi, that no enhancement factor other than prior convictions could be

applied absent a jury finding, the trial court, and this Court (prior to the U.S.

Supreme Court’s opinion in Blakely) would have been obligated to reject that

issue under Graham[v. State].

State v. Ricky Grover Aaron, No. M2002-02288-CCA-R3-CD. Therefore, because previous

precedent required our courts to reject the contention ultimately adopted in Blakely, the

defendant would have had no reason to challenge it before that case was decided. Thus, such

challenges are not waived.
 Our earlier opinion was rendered without regard to Blakely. 1

Applicability of Blakely

We next analyze whether the enhancement factors were wrongfully applied, in light of

the holding in Blakely. The defendant in the instant case was convicted of second-degree

murder, a Class A felony, which carries a Range I penalty of between fifteen and twenty-five

years. As required by statute, the trial court began with the midpoint of the range, and increased

the sentence based upon the application of two enhancement factors: (10) the defendant

possessed or employed a firearm, explosive device or other deadly weapon during the

commission of the offense; and (17) the crime was committed under circumstances under which

the potential for bodily injury to a victim was great. 

 

Based upon the trial court’s finding that the enhancement factors were applicable, and

that no mitigating factors applied, the defendant’s sentence was increased to twenty-five years,

the maximum sentence within the range. On appeal, this Court upheld the application of factor

(10) and further noted that the “trial court gave a ‘great deal of weight’” to that factor in

determining its sentence. This Court rejected the application of factor (17); however, we found

that the trial court “could have used enhancement factor (11),” which states that “the defendant

had no hesitation about committing a crime when the risk to human life was high.” Thus, we

upheld the enhanced sentence of twenty-five years.

1

The appropriateness of the application of factors (10) and (11) must now be reviewed in

light of the Supreme Court’s holding in Blakely. Blakely requires that enhancement factors be

either admitted by the defendant or found by a jury determination beyond a reasonable doubt.

See Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004). Because neither factor meets

the requirements of Blakely, both were improperly applied.

Conclusion

Because both factors were applied in violation of Blakely, the defendant’s second-degree

murder sentence is reduced from twenty-five years to twenty years, the presumptive minimum. 

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JOHN EVERETT WILLIAMS, JUDGE