Tennessee Supreme Court releases opinion
in State v. Gomez regarding sentencing factors
By David Raybin
(Download the Gomez II ruling)
In State v Gomez, 163 S.W. 3d 632 (Tenn. 2005) the Tennessee Supreme Court held that Tennessee's sentencing laws did not violate the Sixth Amendment. Granting the defendants' Petition for a Writ of Certiorari, the U.S. Supreme Court remanded and directed that the Tennessee Supreme Court reconsider the decision in light of Cunningham v. California, 127 S.Ct. 856 (2007) which struck down a sentencing scheme not unlike the Tennessee presumptive sentencing statutes.
On October 9, 2007, the Tennessee Supreme Court released Gomez II, and found that the pre-2005 Tennessee presumptive sentencing statute violated the Sixth Amendment. The Court further held that the two defendants in Gomez were entitled to new sentencing hearings and that the government could not use prohibited, judge-determined enhancement factors to increase the sentence beyond the statutory minimum.
The fundamental holding in Gomez II was that because Tennessee had a presumptive sentencing scheme, the trial judge was prohibited from imposing any sentence above the minimum unless the judge found certain facts. This fact-finding was to be made by a jury and not a judge, and thus judge-found enhancement factors violated the Sixth Amendment. An exception was made for enhancement factors which rested on prior convictions.
As applied to the defendants the case was remanded for a new sentencing hearing where the judge could only consider "prior conviction" enhancement factors. Other types of enhancement factors could not be applied to enhance the sentence.
The impact of Gomez II to other defendants is that unless a defendant has prior convictions, the defendant must receive the minimum sentence within the sentencing range. Any increase above the minimum violates the Sixth Amendment.
The holding has limited impact since the legislature anticipated this ruling in 2005 and remedied Tennessee sentencing laws by removing the mandatory presumptive sentence. See Raybin, The Blakely Fix. The new law was effective for crimes that occurred on or after June 7, 2005. Thus, Gomez II only applies to crimes committed prior to June 7, 2005.
Gomez II used a "plain error" framework to address the merits of the Sixth Amendment issue since neither defendant had raised the issue in the trial court. This is important because it answers another fundamental question of "how far back" Gomez II will reach. The Court held that "defense counsel, like many others in the legal community, did not realize until Blakely was decided [June 24, 2004] that the defendants had a potential claim for relief [under the Sixth Amendment]."
In my view, defendants who were sentenced between June 24, 2004 and June 7, 2005 will have a legitimate argument that any sentence above the minimum violates the Sixth Amendment. This would only apply where the sentence was contested such as after a trial and not where there was a plea agreement and an agreed sentence. Thus the number of impacted prisoners could be measured in the hundreds at most. I seriously doubt that Gomez II will be given unlimited retroactive relief which would affect thousands of prisoners.
David Raybin is a member of the Nashville firm of Hollins, Wagster, Yarbrough, Weatherly & Raybin. He is the author of Tennessee Criminal Practice and Procedure (West 1984), and may be reached via the addresses available on the Web site www.hwylaw.com