State v. Gomez

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
June 7, 2007 Session

STATE OF TENNESSEE V. EDWIN GOMEZ ET AL.

On remand from the United States Supreme Court
Davidson County Criminal Court
No. 2001-A-280 Cheryl Blackburn, Judge

No. M2002-01209-SC-R11-CD - Filed October 9, 2007

This matter is before us upon remand by the United States Supreme Court for reconsideration in light
of that Court’s decision in Cunningham v. California, 549 U.S.__, 127 S. Ct. 856 (2007). In our
initial disposition of this matter, State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), we concluded that
the Defendants were not entitled under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its
progeny to relief as to their sentences. Upon further review following Cunningham, we now
conclude that the trial court’s enhancement of the Defendants’ sentences on the basis of judicially
determined facts other than the Defendants’ prior convictions violated the Defendants’ constitutional
rights under the Sixth Amendment to the United States Constitution. In order to redress the
unconstitutional enhancement of the Defendants’ sentences, we vacate their sentences and remand
this matter to the trial court for resentencing.

Tenn. R. App. P. 11; Judgments of the Trial Court Affirmed in Part,
Vacated and Remanded in Part

CORNELIA A. CLARK, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and
JANICE M. HOLDER and GARY R. WADE, JJ., joined.

Glenn R. Funk and Cynthia M. Fort, Nashville, Tennessee, for the appellant, Edwin Gomez.

David A. Collins, Nashville, Tennessee, and James Stafford, Houston, Texas, for the appellant,
Jonathan S. Londono.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Gordon
W. Smith, Associate Solicitor General; Victor S. Johnson III, District Attorney General; and Bret
Gunn and Roger Moore, Assistant District Attorneys General, for the appellee, State of Tennessee.

David L. Raybin, Nashville, Tennessee, and Wade V. Davies, Knoxville, Tennessee, for the Amicus
Curiae, Tennessee Association of Criminal Defense Lawyers.
 OPINION

I. BACKGROUND

The Defendants’ Sixth Amendment claims as to the length of their sentences in this case are
before us for reconsideration. We begin with a brief review of the prior proceedings.

The Defendants, Edwin Gomez and Jonathan S. Londono, were charged jointly with
conspiracy to commit aggravated robbery (Count One), first degree felony murder (Count Two),
especially aggravated robbery (Count Three), and aggravated robbery (Count Four). A recitation of
the facts leading to these charges is set forth in our previous opinion, State v. Gomez, 163 S.W.3d
632, 637-40 (Tenn. 2005) (“Gomez I”). The trial court submitted the crimes as charged to the jury,
and the jury convicted the Defendants of conspiracy to commit aggravated robbery, a Class C felony,
as charged in Count One. As to the remaining counts, the jury convicted the Defendants of lesser-
included offenses: facilitation of felony murder, a Class A felony (Count Two), facilitation of
especially aggravated robbery, a Class B felony (Count Three), and facilitation of aggravated
robbery, a Class C felony (Count Four). After a sentencing hearing, the trial court sentenced the
Defendants as Range I standard offenders to the maximum term available for each conviction: six
years for the conspiracy offense; twenty-five years for facilitation of felony murder; twelve years for
facilitation of especially aggravated robbery; and six years for facilitation of aggravated robbery.
The trial court enhanced all of the Defendants’ sentences on the basis of two enhancement factors:
“a previous history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range,” and upon finding that each Defendant “was a leader in the
commission of an offense involving two (2) or more criminal actors.” Tenn. Code Ann. § 40-35-
114(1), (2) (Supp. 2001).1 The trial court further enhanced each Defendant’s sentence for the
facilitation of felony murder offense upon finding that each Defendant “possessed or employed a
firearm, explosive device or other deadly weapon during the commission of the offense.” Id. at (9).
The trial court found that no mitigating factors applied. The trial court ordered the sentences to be
served consecutively for a total effective term of forty-nine years as to each Defendant.

On direct appeal, the Court of Criminal Appeals affirmed the Defendants’ convictions and
sentences although the intermediate appellate court determined that the trial court should not have
applied to the facilitation of felony murder offense the enhancement factor for use of a firearm. On
direct appeal to this Court, the Defendants raised, for the first time, a Sixth Amendment challenge
to the length of their sentences,2 relying upon the United States Supreme Court’s decision in Blakely

1
W e cite to the version of the Code in effect at the time of the Defendants’ sentencing hearing.

2
In this Court, the Defendants did not challenge the trial court’s imposition of consecutive service. See Gomez
I, 163 S.W .3d at 648 n.11.

2
v. Washington, 542 U.S. 296 (2004).3 Finding that the Defendants had failed timely to preserve this
issue for plenary appellate review, this Court ruled that the Defendants were “limited to seeking
relief [on their Sixth Amendment sentencing claim] via plain error review.” Gomez I, 163 S.W.3d
at 651. Concluding that the Defendants had not established plain error4 in their sentencing, this
Court denied relief and affirmed the Court of Criminal Appeals. Id. at 662.

The Defendants sought certiorari from the United States Supreme Court regarding this
Court’s holding on their Blakely issue. In due course, that Court vacated our decision in Gomez I
and remanded this matter for further consideration in light of its recent opinion in Cunningham v.
California, 549 U.S. ___, 127 S. Ct. 856 (2007).5 See Gomez v. Tennessee, __ U.S. __, 127 S. Ct.
1209 (2007). We now undertake that further consideration.6

II. ANALYSIS

A. Plain Error Review

As indicated above, this Court determined in its initial review of this matter that the
Defendants were limited to plain error review on their sentencing claims. Defendant Gomez and
amicus curiae argue that plain error review is unnecessary and that we should grant plenary appellate
review of the Defendants’ Sixth Amendment claims. Because we have determined that the
Defendants are entitled to relief for plain error, we decline to readdress whether the Defendants
properly preserved their Sixth Amendment claim for plenary review. Accordingly, consistent with
our initial holding in Gomez I, we will apply plain error review to our reconsideration of the
Defendants’ sentencing claims.

3
The D efendants also continued to challenge their convictions on the basis that the admission of certain
testimony violated their Sixth Amendment right to confrontation. As did the Court of Criminal Appeals, this Court
concluded that neither Defendant was entitled to relief on that basis and affirmed the Defendants’ convictions. See
Gomez I, 163 S.W .3d at 636.

4
See Tenn. R. Crim. P. 52(b) (“W hen necessary to do substantial justice, an appellate court may consider an
error that has affected the substantial rights of an accused at any time, even though the error was not raised in the motion
for a new trial or assigned as error on appeal.”).

5
Although the Supreme Court vacated this Court’s decision in Gomez I, the Defendants continue to challenge
only the enhancement of their sentences. Accordingly, we reinstate without further discussion the Defendants’ judgments
of conviction for the reasons set forth in Gomez I.

6
Subsequent to this Court’s Order Denying Petition for Rehearing filed May 18, 2005, this Court’s mandate in
Gomez I issued on June 30, 2005. On April 10, 2007, this Court recalled its mandate in order to comply with the
mandate from the United States Supreme Court in granting certiorari to the Defendants on February 20, 2007.

3
 B. Plain Error Criteria

Under plain error review, this Court will grant relief only where five prerequisites are met:
(1) the record clearly establishes what occurred in the trial court; (2) a clear and unequivocal rule of
law was breached; (3) a substantial right of the accused was adversely affected; (4) the accused did
not waive the issue for tactical reasons; and (5) consideration of the error is “necessary to do
substantial justice.” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson,
899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). “It is the accused’s burden to persuade an
appellate court that the trial court committed plain error.” State v. Bledsoe, 226 S.W.3d 349, 355
(Tenn. 2007) (citing United States v. Olano, 507 U.S. 725, 734 (1993)).

1. Adequate Record

As to the first prerequisite, we acknowledged in our previous decision that the record clearly
establishes what occurred in the trial court. Gomez I, 163 S.W.3d at 652. In short, the record
reflects the offenses of which the Defendants were convicted and the transcript of the sentencing
hearing reflects the meticulous process used by the trial court in crafting individualized sentences
for each Defendant pursuant to the applicable statutory provisions.

2. Breach of Clear and Unequivocal Rule of Law

We next considered in Gomez I whether the trial court breached a clear and unequivocal rule
of law by applying enhancement factors based on facts not found by a jury to increase the length of
the Defendants’ sentences to the maximum allowable in the applicable range. We determined that
it did not. Id. at 661-62. We now revisit that analysis.

a. Apprendi and its Progeny

We begin with a brief review of the line of cases beginning with Apprendi v. New Jersey,
530 U.S. 466 (2000), and culminating in Cunningham. In Apprendi, the United States Supreme
Court considered a state sentence that had been increased beyond the statutory maximum upon the
trial judge’s determination that the defendant had committed the crime ‘“with a purpose to intimidate
an individual or group of individuals because of race, color, gender, handicap, religion, sexual
orientation or ethnicity.’” 530 U.S. at 469 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999-
2000)). The Supreme Court held that the Sixth Amendment prohibited the enhanced sentence, id.
at 497, and stated, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” Id. at 490.

In Blakely v. Washington, the defendant was convicted of a felony under Washington law
for which he was subject to a sentence of forty-nine to fifty-three months unless the trial judge found
“‘substantial and compelling reasons justifying an exceptional sentence.’” 542 U.S. 296, 299 (2004)
(quoting Wash. Rev. Code Ann. § 9.94A.120(2) (West 2000)). Finding that the defendant had

4
committed the offense with deliberate cruelty, the trial court increased the defendant’s sentence to
ninety months. Applying the rule of Apprendi, the Supreme Court held the defendant’s sentence
unconstitutional. Id. at 305. The Court emphasized that

the “statutory maximum” for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant. In other words, the relevant “statutory maximum” is not the
maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings. When a judge inflicts
punishment that the jury’s verdict alone does not allow, the jury has not found all the
facts “which the law makes essential to the punishment,” and the judge exceeds his
proper authority.

Blakely, 542 U.S. at 303-04 (citations omitted).

The Supreme Court addressed this issue in the context of the Federal Sentencing Guidelines
in United States v. Booker, 543 U.S. 220 (2005). Booker was convicted by a jury of possession with
intent to distribute crack cocaine. The corresponding “base” sentence pursuant to the Guidelines was
210 to 262 months. The trial court increased Booker’s sentence to 360 months after determining that
the preponderance of the evidence established that Booker had possessed a quantity of drugs greater
than that determined by the jury’s verdict. Finding that there was “no relevant distinction between
the sentence imposed pursuant to the Washington statutes in Blakely and the sentence[] imposed
pursuant to the Federal Sentencing Guidelines,” id. at 235, the Supreme Court ruled Booker’s
sentence violative of the Sixth Amendment. Id. at 244.

In Cunningham, the Supreme Court considered California’s determinate sentencing law.
Cunningham had been convicted of continuous sexual abuse of a child under the age of fourteen.
Under California’s statutory sentencing scheme, Cunningham was subject to imprisonment “for a
lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16
years.” 549 U.S. at __, 127 S. Ct. at 860. The trial court was required to sentence Cunningham to
the middle term, however, unless it found one or more aggravating facts. At a sentencing hearing,
the trial judge found by a preponderance of the evidence six aggravating circumstances and one
mitigating circumstance. Concluding that the aggravating circumstances outweighed the mitigating
circumstance, the judge sentenced Cunningham to the upper term sentence of sixteen years.

In finding that California’s sentencing scheme violated the Sixth Amendment, id., the
Supreme Court emphasized that the crucial inquiry under Apprendi is the maximum sentence
allowed under the relevant statutory scheme based solely on those facts reflected by the jury’s verdict
(or admitted by the defendant). Id. at 860. In examining California’s sentencing scheme, the Court
first determined that the “key California Penal Code provision states that the sentencing court ‘shall
order imposition of the middle term’ absent ‘circumstances in aggravation or mitigation of the
crime.’” Id. at 866 n.10 (quoting Cal. Penal Code Ann. § 1170(b)) (emphasis in Cunningham). The
Court next recognized that, “[u]nder California’s [determinate sentencing law], an upper term

5
sentence may be imposed only when the trial judge finds an aggravating circumstance.” Id. at 868.
For Sixth Amendment purposes, then, “the middle term prescribed in California’s statutes, not the
upper term, is the relevant statutory maximum.” Id. Because the trial court sentenced Cunningham
to the upper term sentence based on judicially determined facts not otherwise reflected by the jury’s
verdict or admitted by the defendant, the Court held that the sentence violated Cunningham’s Sixth
Amendment rights. Id. at 871.

b. Tennessee’s Sentencing Scheme

This appeal is governed by Tennessee’s Criminal Sentencing Reform Act of 1989 (“the
Reform Act”) which, prior to its amendment in 2005, established a “presumptive sentence” for each
class of felonies other than capital murder. Absent enhancing or mitigating factors, the presumptive
sentence for Class B, C, D, and E felonies was the minimum in the applicable range.7 Tenn. Code
Ann. § 40-35-210(c) (Supp. 2001). For Class A felonies, the presumptive sentence absent enhancing
or mitigating factors was the midpoint in the applicable range. Id. A sentencing court could not
increase a defendant’s sentence above the presumptive sentence except upon the application of
statutory enhancement factors. See id.; see also State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994)
(“The sentence imposed [for most felonies] cannot exceed the minimum sentence in the range unless
the State proves enhancement factors.”). A sentencing court determined the existence of
enhancement factors by a preponderance of the evidence. See State v. Carico, 968 S.W.2d 280, 287
(Tenn. 1998). Once the trial court found enhancement factors, it had the authority to “set the
sentence above the minimum in [the sentencing] range but still within the range.” Tenn. Code Ann.
§ 40-35-210(d) (Supp. 2001). The weight afforded enhancement factors was left to the trial court’s
discretion. See Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Cmts. (1997); see also State
v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). In sum, a maximum sentence could not
be imposed absent a judicial finding of enhancement factors.

In our previous analysis of the Reform Act, which was conducted in light of Booker but
without the benefit of Cunningham, we determined that “the relevant inquiry is whether the Reform
Act mandates imposition of a sentence increased above the presumptive sentence when a judge finds
an enhancement factor.” Gomez I, 163 S.W.3d at 661 (emphasis changed). We interpreted Booker
to hold that “the mandatory increase of a sentence is the crucial issue which courts must consider in
determining whether a particular sentencing scheme violates the Sixth Amendment.” Id. Because
the Reform Act did not require a trial court to increase a sentence upon finding one or more
enhancement factors, we held that the Reform Act did not offend the Sixth Amendment under
Apprendi. Id.

We are instructed by Cunningham, however, that “[i]f the jury’s verdict alone does not
authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term,
the Sixth Amendment requirement is not satisfied.” 127 S. Ct. at 869. Applying Cunningham, we

7
The sentencing range is determined based upon the defendant’s history of criminal convictions. See Tenn.
Code Ann. §§ 40-35-105 through -109 (1997, 2006).

6
conclude that the Reform Act failed to satisfy the Sixth Amendment insofar as it allowed a
presumptive sentence to be enhanced based on judicially determined facts.8 That is, to the extent the
Reform Act permitted enhancement based on judicially determined facts other than the fact of a prior
conviction, it violated the Sixth Amendment as interpreted by the Supreme Court in Apprendi,
Blakely, and Cunningham.

In this case, the trial court increased all of the Defendants’ sentences beyond the presumptive
sentences on the basis of two enhancement factors: their “previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range,” and upon its
determination that each “was a leader in the commission of an offense involving two (2) or more
criminal actors.” Tenn. Code Ann. § 40-35-114(1), (2) (Supp. 2001). As to the Defendants’
convictions for facilitation of felony murder, the trial court also applied as an enhancement factor
that each “possessed or employed a firearm, explosive device or other deadly weapon during the
commission of the offense.” Id. at (9). On appeal, the Court of Criminal Appeals determined that
the trial court had properly applied factors (1) and (2) but that application of factor (9) was not
supported by the evidence. Nevertheless, the intermediate appellate court affirmed the Defendants’
maximum sentences.

The trial court’s application of the enhancement factor for a previous history of criminal
convictions does not offend the Sixth Amendment. See Apprendi, 530 U.S. at 490. Having
reconsidered the Reform Act in light of Cunningham, we now conclude that the trial court’s
application of the two other enhancement factors breached a clear and unequivocal rule of law.9 The
second prerequisite for plain error review is therefore satisfied.

3. Adverse Effect

We turn now to the third criterion for plain error review: whether a substantial right of the
accused has been adversely affected. The State concedes that this prerequisite has been satisfied, and
we agree with that concession. According to the Supreme Court, the trial court’s determination that
enhancement factors (2) and (9) were applicable to increase the Defendants’ sentences deprived the
Defendants of their Sixth Amendment right to have a jury determine whether those enhancement
factors applied. See Cunningham, 127 S. Ct. at 860 (holding that the trial court’s imposition of a
harsher sentence on the basis of judicial factfinding “denied petitioner his right to a jury trial”).

8
In 2005, the General Assembly amended the Reform Act to comply with the Sixth Amendment as interpreted
by Apprendi and its progeny. See 2005 Tenn. Public Acts ch. 353, § 6 (codified at T enn. Code Ann. § 40-35-210
(2006)). Imposition of a “presumptive sentence” in the absence of enhancing and mitigating factors is no longer
mandatory. See Tenn. Code Ann. § 40-35-210(c) (2006).

9
W e are compelled to draw this conclusion in light of the Supreme Court’s order of remand. W e are constrained
to point out, however, the numerous cases the Supreme Court has decided in an effort to clarify what Justice Ginsburg
describes in Cunningham as Apprendi’s “bright-line rule,” 127 S. Ct. at 868, each of which has resulted in multiple
opinions. See, e.g., Ring v. Arizona, 536 U.S. 584 (2002); Blakely, 542 U.S. 296; Booker, 543 U.S. 220; Cunningham,
127 S. Ct. 856.

7
 4. Waiver of Issue for Tactical Reasons

The fourth consideration for plain error review is whether the record indicates that the
Defendants waived their Sixth Amendment claims for tactical reasons. Neither the pleadings filed
by the Defendants with the trial court nor the transcript of the sentencing hearing provides any
indication as to why the Defendants initially failed to raise a Sixth Amendment challenge to the trial
court’s use of enhancement factors (2) and (9). In their pre-Gomez I briefs before this Court,
however, both Defendants argued that their Sixth Amendment claims for relief from their sentences
did not arise until Blakely was decided, more than two years after their sentencing hearing.

It is true that this Court has refused to find plain error where the record discloses that the
alleged “error” resulted from a tactical choice by the defense. For instance, in Smith, the Court of
Criminal Appeals determined sua sponte that the defendant was entitled to relief for plain error
because the trial court did not provide the jury with a particular instruction regarding an evidentiary
matter. 24 S.W.3d at 282. However, this Court subsequently determined that the defendant had not
objected to admission of the evidence and that the record was “clear” that the defense’s “decision
not to object . . . was a result of a deliberate, tactical trial strategy.” Id. at 283. Indeed, during oral
argument before this Court, defense counsel conceded “that the decision not to object . . . was a
‘tactical decision.’” Id. Accordingly, this Court determined that the defendant was not entitled to
relief under the plain error doctrine. Id. at 284; cf. Bledsoe, 226 S.W.3d at 355 (holding that the
Court of Criminal Appeals erred in granting relief for plain error where the defendant failed to
include in his appeal “key parts of the record” resulting in uncertainty as to whether the defendant’s
failure to request a particular jury instruction was a tactical decision); Studdard v. State, 182 S.W.3d
283, 288 (Tenn. 2005) (holding that all of the criteria for plain error were not met because “[t]he
record strongly suggests the defendant pleaded guilty to . . . a lower grade offense [than that charged]
for tactical reasons”).

In contrast, the record in this case is silent and does not establish that the Defendants made
a tactical decision to waive their Sixth Amendment claims. Rather, it appears that defense counsel,
like many others in the legal community, did not realize until Blakely was decided that the
Defendants had a potential claim for relief under Apprendi.10 Accordingly, we conclude that the
fourth prerequisite for plain error has been met.

5. Substantial Justice

We turn now to the final prerequisite: whether consideration of the trial court’s error in
sentencing the Defendants is “necessary to do substantial justice.” We hold that it is.

10
Indeed, as pointed out by the dissent filed in Gomez I, prior to Blakely this Court held in Graham v. State, 90
S.W .3d 687, 691-92 (Tenn. 2002), that, so long as a trial court sentenced a defendant within the applicable range, the
trial court’s reliance on judicially determined enhancement factors did not offend the Sixth Amendment under Apprendi.
See Gomez I, 163 S.W.3d at 669 (Anderson, J., dissenting).

8
 As set forth above, one of the enhancement factors relied upon by the trial court in sentencing
each Defendant was each Defendant’s “previous history of criminal convictions or criminal behavior
in addition to those necessary to establish the appropriate range.” Tenn. Code Ann. § 40-35-114(1)
(Supp. 2001). Under Apprendi, a trial court may properly consider without jury findings a
defendant’s prior convictions, as well as prior criminal behavior admitted to by a defendant, when
imposing sentence. See Apprendi, 530 U.S. at 488-90.

The proof at the sentencing hearing established that Defendant Londono had previous
convictions for manslaughter and theft from interstate commerce. Defendant Londono also admitted
to prior illegal drug use. The proof at the sentencing hearing was less clear as to Defendant Gomez’
criminal history. The prosecutor contended that Defendant Gomez had previous convictions of
robbery and theft from interstate commerce. As to the robbery conviction, the prosecutor stated that
he had contacted the New York authorities and gotten the case number but had not obtained a
certified copy of the conviction. Defendant Gomez conceded his conviction for theft from interstate
commerce but refused to acknowledge that he had been convicted of robbery in New York. Yet, the
presentence report reflects in the “Financial Information” section that Defendant Gomez is indebted
in the amount of $500,000 for “Federal Restitution (Robbery).” Following this information is the
comment, “The restitution is owed to the federal government for a robbery conviction in another
case.” Defendant Gomez did not object to this information in the presentence report which was
made an exhibit to his sentencing hearing. This commentary in the presentence report, unobjected
to by Defendant Gomez, supports the prosecutor’s assertion that Defendant Gomez has a previous
robbery conviction. Nevertheless, the trial court relied upon only the theft from interstate commerce
conviction in applying enhancement factor (1) to Defendant Gomez.

The trial court accorded “great weight” to the Defendants’ prior criminal histories. However,
the trial court also relied upon each Defendant’s being “a leader in the commission of an offense
involving two (2) or more criminal actors,” Tenn. Code Ann. § 40-35-114(2) (Supp. 2001), while
imposing sentence for all of the Defendants’ convictions, and upon each Defendant having
“possessed or employed a firearm, explosive device or other deadly weapon during the commission
of the offense,” id. at (9), while imposing sentence for the facilitation of felony murder offense. The
trial court’s application of these two enhancement factors depended on the type of judicial fact-
finding prohibited by Apprendi.

That the trial court gave “great weight” to the Defendants’ prior criminal histories does not
necessarily render irrelevant its application of enhancement factors (2) and (9). And while the
Reform Act allows this Court on appeal of a sentence to “[a]ffirm, reduce, vacate or set aside the
sentence imposed,” Tenn. Code Ann. § 40-35-401(c)(2) (2006), the record in this case as to the
Defendants’ criminal histories is not sufficiently well-developed for us to determine the proper
sentences based on this enhancement factor alone. Therefore, because the trial court’s reliance upon
enhancement factors (2) and (9) was constitutionally inappropriate, we conclude that granting the
Defendants relief is necessary to do substantial justice in this case. We therefore vacate the
Defendants’ sentences and remand to the trial court for a resentencing hearing at which the trial court
will have an opportunity both to determine the full scope of the Defendants’ criminal histories and

9
to consider whether imposition of the maximum sentence on all convictions is appropriate. Our
holding does not, however, affect the trial court’s determinations regarding manner of service or the
imposition of consecutive sentences.

CONCLUSION

The trial court erred in applying enhancement factors for being a leader in the commission
of the offenses and in possessing or employing a firearm to any of the Defendants’ sentences.
Because the trial court’s error adversely affected the Defendants’ unwaived rights to a jury trial, and
because the record on appeal does not allow us to determine the proper sentences to be imposed,
substantial justice requires that we vacate the Defendants’ sentences and remand this matter to the
trial court for resentencing in a manner consistent with this opinion. In all other respects, the trial
court’s judgments are affirmed.

It appearing that the Defendants are indigent, the costs of this cause are taxed to the State of
Tennessee.

________________________________
CORNELIA A. CLARK, JUSTICE

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