State Supreme Court says criminal sentencing laws constitutional

The state rules in place since 1989 were not overturned by two U.S. Supreme Court rulings last year addressing the authority of judges to enhance sentences, the Tennessee justices said in a 3-2 decision.

Chief Justice Frank F. Drowota III, writing for the majority, said the enhanced sentences a judge imposed on Edwin Gomez and Jonathan S. Londono did not violate Sixth Amendment guarantees to a trial by jury. Justices William M. Barker and Janice M. Holder concurred.

The opinion said that Tennessee law gives a judge discretion to select any sentence within a legal range but does not mandate an increased sentence.

David Raybin, a Nashville defense attorney and member of a task force appointed by Gov. Phil Bredesen to look into the constitutionality of the state’s criminal sentencing laws, said the ruling may be limited enough to pass “constitutional muster.”

“But it is possible that a federal court could disagree, and, in fact, the Supreme Court itself acknowledges in the ruling that may happen. I think the ruling is very narrow. It’s questionable in my view that it would be upheld,” he said.

Gomez and Londono were convicted in Nashville of conspiracy, facilitation of felony murder and aggravated robbery for a 1999 holdup that left a security guard dead.

Criminal Court Judge Cheryl Blackburn ordered they serve their sentences consecutively for an effective 49-year jail term, longer than they would have been punished without the enhancements determined by the judge.

Gomez and Londono appealed, arguing that their sentences were unconstitutional because the judge, not the jury, found the enhancement factors used to impose maximum sentences.

Cynthia M. Fort, an attorney for Gomez, said that because constitutional issues are at play in the case, an appeal to the U.S. Supreme Court is possible.

“I haven’t decided yet if I’m going to do that,” Fort said. “I’m going to have to talk to my co-counsel.”

Tennessee and most other states have allowed judges to make prison sentences longer for certain enhancing factors, such as using a gun during the crime or acting with a particularly high degree of cruelty.

In June, the U.S. Supreme Court ruled in what is known as the Blakely decision that judges cannot extend sentences for convicted criminals on the basis of enhancing factors unless a jury has ruled on those facts. The court said judges may extend sentences only on the basis of a previous conviction or when the defendant admits doing something considered an enhancing factor.

In a dissenting opinion, Justice E. Riley Anderson said the Blakely decision invalidates the enhanced sentences Gomez and Londono received. Anderson was joined in his dissent by Justice Adolpho A. Birch Jr.

“The presumptive sentences set forth in Tennessee Code Annotated … established a fixed point for the defendants’ sentences such that the upward departure, based solely on findings made by the trial judge, was imposed in violation of Blakely and therefore violated the defendants’ Sixth Amendment right to trial by jury,” Anderson wrote.

The state Supreme Court decision comes as state lawmakers are considering proposed legislation borne out of recommendations from Bredesen’s 13-member task force. Assigned to ensure that the state’s criminal sentencing guidelines conform with the Blakely decision, the task force recommended in March that judges use the enhancing factors as “advisories” instead of them being mandatory.

Nashville District Attorney Torry Johnson, a task force member, said Friday that while the state Supreme Court decision is gratifying the “prudent thing is to go ahead and amend the sentencing law as the task force recommended.”

“I think the recommendations the task force made still have merit,” he said. “I would hope they would still continue to advance in the Legislature because it is so unclear. I think everyone is confident that the proposal the task force made is clearly constitutional and there would be no question.”