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State v. Bush

Court of Criminal Appeals of Tennessee, Nashville

June 1, 2017


          Assigned on Briefs January 18, 2017 at Knoxville

         Appeal from the Circuit Court for Rutherford County No. F-50300B David M. Bragg, Judge

         The Appellant, Rafael Antonio Bush, appeals as of right from the Rutherford County Circuit Court's summary denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The gravamen of the Appellant's complaint is that the trial court improperly enhanced his sentences based upon judicially determined facts in violation of Blakely v. Washington, 542 U.S. 296 (2004). Following our review, we affirm.

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

          Rafael Antonio Bush, Only, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; and Jennings H. Jones, District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.



         This case arises from five men breaking into the home of Pascual Lopez-Blacos, an undocumented immigrant, demanding money from him, and shooting him in the leg. State v. Rafael Antonio Bush, No. M2002-02390-CCA-R3-CD, 2004 WL 794755, at *1 (Tenn. Crim. App. Apr. 14, 2004), perm. app. denied (Tenn. Oct. 4, 2004). For his participation in these acts, a Rutherford County jury convicted the Appellant of especially aggravated robbery, a Class A felony; aggravated burglary, a Class C felony; and aggravated assault, a Class C felony. Tenn. Code Ann. §§ 39-13-102, -13-403, -14-403.

         The trial court sentenced him as a Range I, standard offender to twenty-two years for the robbery conviction, four years for the burglary conviction, and four years for the assault conviction, all to run concurrently. In determining the length of the Appellant's various sentences, the trial court applied four enhancement factors: (1) the defendant had a history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (2) the defendant was a leader in the commission of the offense; (3) the defendant, before trial or sentencing, failed to comply with the conditions of a sentence involving release into the community; and (4) the defendant "intentionally select[ed] the person against whom the crime is committed . . . in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry or gender of that person[.]" Bush, 2004 WL 794755, at *21 (citing Tenn. Code Ann. § 40-35-114(1), (2), (8), (22)[1] (Supp. 2001)). The trial court did not apply any mitigating factors. Id.

         The Appellant appealed to this court, arguing, among other things, that the evidence was insufficient to support his convictions and that his twenty-two-year sentence for especially aggravated robbery was excessive. Bush, 2004 WL 794755, at *5-8, *20-22. We affirmed the Appellant's convictions and sentence. Id. at *1, *23. In affirming enhancement of the Appellant's twenty-two-year sentence for especially aggravated robbery, this court reasoned as follows:

[W]e conclude that the [Appellant's] twenty-two-year sentence for especially aggravated robbery is proper. The [Appellant] does not argue that the trial court improperly applied enhancement factors or that it failed to consider applicable mitigating factors. Instead, he contends that he should have received no more than the presumptive sentence of twenty years because of his codefendants' involvement in the crimes. However, given that the trial court determined four enhancement factors applied in this case, we believe the trial court's enhancing the sentence from twenty to twenty-two years was justified.

Id. at *22.

         Subsequently, the Appellant filed a petition for post-conviction relief in May 2005, alleging that trial counsel was ineffective for failing to request that the jury be instructed about accomplice testimony. Rafael Antonio Bush v. State, No. M2005-02967-CCA-R3-PC, 2006 WL 2682825, at *1 (Tenn. Crim. App. Sept. 7, 2006), perm. app. denied (Tenn. Dec. 27, 2006). After a hearing, the Appellant was denied relief, and this court affirmed the post-conviction court's judgment. Id.

         Next, the Appellant filed a petition seeking habeas corpus relief in federal court on May 24, 2007. Antonio Bush v. Stephen Dotson, Warden, No. 3:07-00630, 2010 WL 3211464, at *1 (M.D. Tenn. Aug. 11, 2010), aff'd, 508 F.App'x 472 (6th Cir. 2012). In his habeas petition, the Appellant made the following allegations: (1) the State knowingly presented false testimony by two witnesses; (2) the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) his sentences were improperly enhanced based on facts not found by a jury; (4) he was denied the effective assistance of counsel; (5) he was denied due process when the state court allowed testimony about his alleged prior bad acts unrelated to the case; and (6) the evidence at trial was insufficient to support a conviction. Id. However, the Appellant, in his motion for summary judgment, limited his argument to a challenge of the sufficiency of the evidence supporting his especially aggravated robbery conviction, and the district court deemed his remaining claims abandoned. Id. at *1, *7. Thereafter, the district court denied the Appellant relief, concluding that the "Tennessee Court of Criminal Appeals reasonably concluded that Lopez-Blacos constructively possessed the property taken by [the Appellant] while Lopez-Blacos was in [the Appellant's] custody." Id. at * 10. The Sixth Circuit affirmed the district court's denial of habeas corpus relief. 508 F.App'x at 473, 476.

         On April 24, 2014, the Appellant filed a motion to reopen his state court post-conviction petition "pursuant [to] T.C.A. § 40-30-117(a)(1), § 40-35-401 (Appeal of Sentence) and Rule 36.1 to Correct the Illegal Sentence imposed upon him on December 13, 2001 by the Circuit Court for Rutherford County, Tennessee." State v. Rafael Antonio Bush, No. M2014-01193-CCA-R3-CD, 2014 WL 7204637, at *1 (Tenn. Crim. App. Dec. 18, 2104), perm. app. denied (Tenn. Mar. 12, 2015). The post-conviction court issued an order on May 8, 2014, denying the Appellant's motion to reopen as follows:

The [Appellant], Antonio Bush, filed a pro se Motion to Reopen Petition for Post Conviction Relief Pursuant to 36.1 Correction of Illegal Sentence on April 24, 2014. The motion is based on the allegation that under T.C.A. 40[-]30-1[17] he is entitled to have his petition reopened based on what he claims is an illegal sentence. The court finds that there are not new constitutional grounds to reopen the [Appellant's] petition for post conviction relief. Therefore, the motion is DENIED.
Pursuant to T.C.A. § 40-30[-]117(a), a court may reopen a petitioner [sic] for post conviction relief if the petition was based upon a final ruling of the highest state appellate court or the United States Supreme Court that established a constitutional right that was not recognized at the time of trial and retrospective application of that right is required. The motion must be filed within one year of the ruling of the highest state appellate court or U.S. Supreme Court.
The [Appellant] relies upon Rule 36.1 and the rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), Cunningham v. California, [549 U.S. 270] (2007), and State v. Gomez, 239 S.W.3d 733, 736 (Tenn. 2007). The [Appellant] asserts that those cases state that the federal constitution's jury trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum, ...

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