Under the Tennessee Criminal Sentencing Reform Act of 1989, "If a defendant is convicted of more than one (1) criminal offense, the court shall order sentences to run consecutively or concurrently as provided by the criteria in this section." Tenn. Code Ann. 40-35-115(a) (2006). Section (b) of the statute gives the court the authority to issue consecutive sentences if the court finds one of seven facts by a preponderance of the evidence. In addition, Tennessee Rule of Criminal Procedure 32(c) allows a judge to determine whether sentences for more than one offense, tried in a single trial, shall be served concurrently or consecutively. According to the Allen decision, in Tennessee a defendant "is entitled to concurrent sentences unless the trial court makes specific factual findings by a preponderance of evidence after conviction, or consecutive sentences are required by statute or a rule of criminal procedure."

The defendants in State v. Allen were convicted for separate, unrelated offenses. Allen, similar to the defendant in Oregon v. Ice, was convicted of multiple criminal offenses. The convictions arose out of three separate incidents of aggravated rape and aggravated robbery. In each instance, Allen accosted at least two women with a gun, robbed each, and then raped them. A jury convicted Allen and on remand from the Tennessee Court of Criminal Appeals, the trial court sentenced Allen to an effective term of 104 years by ordering his sentences to run consecutively. The trial court imposed consecutive sentences because it found Allen to be a dangerous offender under Tenn. Code Ann. 40-35-115(b)(4).

Defendant Lumpkin was convicted by a jury for the first degree murder of of Emma Tatum, one count attempted premeditated murder, and two counts aggravated assault. Each separate conviction arose from one criminal act. Lumpkin had fired five shots at his neighbors: Leland Tatum, Bishop Tatum, Essie Tatum and Emma Tatum as they sat on their front porch. One of the shots hit and killed Emma Tatum. The trial court sentenced Lumpkin to life imprisonment for the murder, 23 years imprisonment for the attempted murder, and five years for each aggravated assault. In order to impose consecutive sentences, the trial court found Lumpkin to be a dangerous offender, with "confinement for an extended period of time necessary to protect society from [Defendant Lumpkin's] unwillingness to lead a productive life and [Defendant Lumpkin's] resort to criminal activity." Lumpkin appealed the sentence arguing the consecutive sentences violated his constitutional rights.

Both defendants claimed, as does the defendant in Ice, that the Supreme Court's statement in Blakely, that "[w]hen a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which law makes essential to the punishment' and the judge exceeds his proper authority." 542 U.S., at 304 (citation omitted). However, unlike the Supreme Court of Oregon in Ice, 170 P.3d, at 1059, the Supreme Court of Tennessee found that neither Apprendi, nor Blakely addressed the issue of whether a trial judge may impose consecutive sentences for more than one crime. The Tennessee court therefore construed Apprendi and Blakely narrowly so that their rules apply only to cases where the threshold question is whether the court has "impermissibly increased the penalty for a crime beyond the prescribed statutory minimum."

The Supreme Court of Tennessee reasoned that the Tennessee statute did not authorize judicial factfinding that allowed a trial judge to find facts that were actually elements of a crime disguised as sentencing factors, as prohibited by Apprendi. Instead, the court found "[t]he decision whether to impose consecutive sentences for multiple crimes is a decision about the manner in which a defendant serves his or her multiple punishments." (emphasis added) The court reasoned this was akin to a trial judge's decision as to how (probation) or where (penitentiary or community corrections) the defendant would serve his sentence.

CJLF's brief in Oregon v. Ice also sought to limit the reach of Apprendi and Blakely. In our brief, we argued Apprendi was meant to protect the historical fact finding function of the jury, and because, historically the jury had no role in deciding whether to impose consecutive sentences, Apprendi should not apply to Oregon's consecutive sentencing statutes.