State of Tennessee v. Terry Wayne Hawkins - Concurring

I concur in the majority’s conclusion that a trial court is free to set any sentence
within the appropriate sentencing range “regardless of the presence or absence of mitigating and enhancement factors.” I write separately, however, to emphasize that the 2005 amendments to the Sentencing Act, when read in conjunction with those provisions not affected by the amendments and the Sentencing Commission Comments, are in and of themselves open to two interpretations: (1) that, although the enhancement and mitigating factors were rendered advisory, a trial court still has no discretion to enhance a defendant’s
sentence without finding applicable one of the enhancement factors enumerated in Code section 40-35-114 and (2) that a trial court is free to choose any sentence within the appropriate range so long as the imposition of the sentence complies with the principles and purposes of the Sentencing Act. The latter was first alluded to by our supreme court in State v. Carter, 254 S.W.3d 355 (2008). For the reasons set forth below, it is my view that latter interpretation is constitutionally required.