General
General 1
The Vera Institute Speaks Again!! 1
Dollars and Sentencing 1
The next big Blakely issue: the prior conviction exception 2
Spanning the States 3
Week in Review 4
State of the States 5
The Vera Institute Speaks!! 5
Will state sentencing commissions do better? 6
Tracking Blakely developments in the states 7
Deciphering Blakely for the states 8
Arizona 8
Still more interesting state decisions 8
More interesting state developments nationwide 9
Blakely and victims’ rights 10
Blakely developments in Arizona 10
More state wisdom 11
California 12
More California aftershocks 12
So many California cases, so little time 12
More interesting state developments nationwide 13
Big Blakely rulings from the states 13
Limiting the impact of Blakely in California 15
More thoughtful California analysis 16
First official Blakely reversal in California 17
Consecutive questions about consecutive sentencing 17
Blakely news from California 18
Second Thoughts in California’s Fifth District 19
Blakely-coping, California style 19
Another fascinating Blakely front 20
More Blakely insights for Californians 21
California dreaming… 21
Action by the Supreme Court (of California) 21
More Blakely resources for Californians and others 22
Colorado 23
More big Blakely news from Colorado 23
Mile High Blakely 23
Florida 24
Coast to Coast Blakely developments in the states 24
Indiana 25
Federal and state news in Indiana 25
More state Blakely news in Minnesota and elsewhere 26
Kansas 26
Spanning the States 26
Can the Kansas system work for the feds? 28
Reports about Blakely from the field 28
Maine 29
Interesting state Blakely news 29
Massachusetts 29
Still more interesting state decisions 29
Michigan 30
Blakely back in the news 30
The Michigan Supreme Court speaks!! 31
Minnesota 31
More interesting state developments nationwide 31
Big Blakely rulings from the states 32
More Minnesota remands 34
Spanning the States 34
Minnesota’s Commission Speaks 36
Will state sentencing commissions do better? 36
More state Blakely news in Minnesota and elsewhere 37
Tracking Blakely developments in the states 38
Minnesota’s a leader again 38
New Mexico 39
Will state sentencing commissions do better? 39
North Carolina 39
The Blakely earthquake hits North Carolina 39
Word on the Street in NC 40
Tracking Blakely developments in the states 41
North Dakota 41
Blakely back in the news 41
Ohio 42
Still more interesting state decisions 42
Insights about Blakely’s impact in Ohio 43
Ohio v. Scheer: a Rosetta Stone for sentencing reform? 43
Another interesting Ohio case 45
Formalism meets functionality: An Ohio case study 45
Blakely’s impact in Ohio 47
Oregon 49
Juvenile convictions and the “prior conviction” exception 49
Major Blakely ruling in Oregon 50
Dollars and Sentencing 50
Blakely news from Oregon 51
Pennsylvania 51
Blakely’s (lack of) impact in Pennsylvania 51
South Carolina 52
Another possible Blakely front and great dicta 52
Tennessee 53
Interesting state Blakely news 53
Big Blakely rulings from the states 53
Tennessee’s functionality meets Blakely’s formalism 55
Blakely back in the news 56
Grand Ole Blakely 57
I’m going to Graceland… 57
Fascinating news from Tennessee 58
More state Blakely news in Minnesota and elsewhere 59
Coast to Coast Blakely developments in the states 59
Washington 60
A means for Supreme Court (re)consideration 60
Blakely’s impact in the other Washington 61
General
The Vera Institute Speaks Again!!
As detailed here, the Vera Institute of Justice — which has been at the forefront of state sentencing reform through its State Sentencing and Corrections Program (SSC) — was at the forefront of covering the impact of Blakely in the states through its publication last month entitled "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems."
Vera has now kept up the great work by having now released — just in time for its big conference noted here — a second report entitled "Aggravated Sentencing: Blakely v. Washington – Legal Considerations for State Sentencing Systems." The full report can be accessed here, and it provides the most comprehensive and insightful account of the mess that Blakely may create for the states. The report is a must-read for all Blakely fans, and I will quote here a valuable overview provided by SSC director Dan Wilhelm:
As Blakely continues to sow confusion and anxiety in many quarters of the criminal justice world, it is worth noting that much of the reported chaos has been confined to the federal system.... State sentencing systems, varied as they may be, simply are not as dependent on judge-found facts at sentencing — the heart of Blakely — as is the federal system. This means provisions that offend Blakely are easier to avoid for the time being, as state courts begin to sort out how the decision applies to their systems....
Many states have better recent experience in gathering together politically accountable officials to think about and construct sentencing reforms that are not only workable and public-safety minded but that squarely observe other aims — related to fairness, proportionality, and resources — that led many to revisit their sentencing schemes in the first place. The existence of productive entities such as sentencing commissions, working groups, legislative judiciary committees, and others gives many states a leg up in tackling Blakely.
It also presents a potential opportunity, as this second in our series of Blakely papers suggests. Can the occasion of the Court’s decision encourage states not only to fix problems in their systems created by Blakely but also to explore policy changes that further protect the public while advancing justice? It is admittedly a tall order. The coming months will tell whether states seize and exploit the challenge the Supreme Court has handed them.
September 20, 2004 at 05:50 PM
Dollars and Sentencing
Many readers likely know that the paths of federal and state sentencing reforms have diverged in part because of economics. Even though the federal corrections system is the biggest in the country, state expenditures on corrections consume a much bigger portion of states' overall budgets. Thus, as highlighted by this terrific report entitled "Changing Fortunes or Changing Attitudes?: Sentencing and Corrections Reforms in 2003" produced earlier this year by the folks at the Vera Institute's State Sentencing and Corrections Program, states struggling with the "third straight year of severe economic crisis" took a series of "steps to lessen sentences and otherwise modify sentencing and corrections policy during the 2003 legislative sessions."
This recent article discussing a planned review of state sentencing laws and practices in Oregon highlights that, when it comes to sentencing reform, the almighty dollar might still be more powerful than the almighty Blakely. Though Oregon state sentencing laws apparently have big Blakely problems (details here), the article reveals that the public debate over Oregon sentencing reforms is about sentencing costs not sentencing procedures. Here's hoping that, on the playing field of sentencing, Oregon can get its ducks in a row.
August 24, 2004 at 09:21 AM
The next big Blakely issue: the prior conviction exception
As noted before here, the theoretical soundness of Almendarez-Torres' "prior conviction" exception to the Apprendi/Blakely rule has been widely questioned, and Justice Thomas' statements suggest that there are no longer five Justices who support this exception. Nevertheless, the "prior conviction" exception remains good law (for now), and we are continuing to see courts in the wake of Blakely giving this exception a broad reading.
The recent Indiana state court decision in Carson (details here) is one very recent example of a (questionable) state ruling applying this exception expansively to escape Blakely's reach. Similarly, a recent unpublished order from California in People v. Cairati, No. A104764 (Cal. Ct. App., Aug. 19, 2004) (available here) gave the Almendarez-Torres exception a broad application through this holding:
Here, in imposing the aggravated term of 11 years in state prison, the court relied on several aggravating factors including defendant's "prior convictions [that] show a continuing pattern of violence and escalation which is frightening," the viciousness of the current offense, that defendant was armed with a shovel when he committed the offense, and his prior poor or unsuccessful performance on probation. That defendant had prior convictions that were numerous or of increasing seriousness is a specific factor supporting an aggravated term. Assuming Blakely applies to the California determinate sentencing scheme, under Apprendi, as reiterated in Blakely, the fact of defendant's prior convictions does not require a jury determination. Because even a single aggravating factor is sufficient to justify the imposition of the aggravated term, the trial court could properly rely on defendant's prior convictions without a jury determination in imposing the aggravated term.
The Booker and Fanfan cases will not give the Justices a direct opportunity to address the scope and application of the prior conviction exception. It has been noted here that the High Court, just before Blakely came down, granted cert in a case, US v. Shepard, 03-9168, that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely. Yet, as detailed here and here, Shepard is a federal case technically about a little issue in federal law. And oral argument in Shepard likely will not take place before next year.
Just as the federal criminal justice system needs a quick clarification of Blakely's applicability to the federal guidelines, I think both state and federal criminal justice systems will soon need a direct clarification of the validity and scope of the prior conviction exception in the wake of Blakely.
August 21, 2004 at 02:51 PM
Spanning the States
Though there has not been huge Blakely news from the states recently, many small state stories continue to gurgle. Ron Wright, who has my great thanks for a wonderful job of guest-blogging last week, has relayed to me some of these stories upon his return from the National Association of Sentencing Commission's national meeting. I'll share Ron's many insights in a series of posts, through first let me note(small) news from the state courts.
In Minnesota this week there has been a spate of remands from the courts of appeals with instructions to the district court "to consider the application of Blakely." State v. Carlson, 2004 WL 1826141 (Minn. App. Aug. 17, 2004); see also State v. Rivera, 2004 WL 1826586 (Minn. App. Aug. 17, 2004); State v. Henderson, 2004 WL 1833936 (Minn. App. Aug. 17, 2004). Similarly, a recent Indiana court of appeals' decision, Wilkie v. State, 2004 WL 1843005 (Ind. App. Aug 18, 2004), dodges direct consideration of Blakely in a footnote which states that the court is "mindful" of Blakely, but "leave[s] for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B)."
This thoughtful news story effectively canvasses state sentencing developments, and explains why state Blakely stories have been slower to develop:
Blakely may have a somewhat more limited impact on the functioning of state sentencing systems because judicial fact-finding is used to determine sentences in only a small fraction of state-level cases. Plus, the nature of state sentencing systems makes it easier for state courts to sidestep the ruling until more permanent statutory solutions are enacted.
The article goes on to note, however, that we might just be noticing a period of calm before a major legislative storm:
Blakely could have considerable state-level repercussions, especially in states with sentencing structures similar to Washington's.... Daniel Wilhelm, director of state sentencing and corrections programs at the Vera Institute of Justice ... said he "absolutely" expects statehouses to be flooded with legislation aimed at tailoring state sentencing guidelines to bring them into compliance with Blakely, when legislatures reconvene next year. "People seem to be waiting to act until the legislatures reconvene in the new year," Wilhelm said.
Finally, this article notes that Kansas might serve "as a model for other states now looking to reform their systems of presumptive sentencing guidelines" because it "adopted a bifurcated system after the state supreme court in 2001 invalidated its system of presumptive sentencing guidelines." Interestingly, Ron had this report about views expressed at the NASC meeting concerning the "Kansas solution":
From Ron about the Kansas system:
Various academics, judges, prosecutors, sentencing commissioners, and defense attorneys [at the NASC meeting] related some of the events in Kansas. Kansas holds special interest for Blakely purposes, because a 2001 Kansas Supreme Court case, State v. Gould, anticipated the outcome in Blakely and struck down the use of judicial factual findings to authorize an aggravated sentence. The Kansas legislature responded by passing a statute that provides for bifurcated jury proceedings to find facts that could authorize an aggravated range sentence. As a result, Kansas now has a two-year head start in the use of bifurcated jury proceedings.
There have been very few bifurcated jury proceedings held in the Kansas courts. In most counties, there have been none at all; statewide, there may have been less than a half dozen. When these proceedings do occur, attorneys and judges estimated that they only added one to three hours to the jury trial.
Why so few bifurcated jury proceedings in Kansas? One explanation could be the fear of the unknowns and the hassle that could accompany the new extended jury proceedings. Another is the power of parties to negotiate an aggravated sentence: defendants might happily accept an aggravated range sentence in exchange for a reduction in the charges filed.
But judges and attorneys from Kansas relied on several features of Kansas law for more specific explanations. They noted that consecutive sentences now take the place of aggravated sentences. Under Kansas law, the judge can impose consecutive sentences up to double the length of the most serious charge if there is a conviction for a second count. Prosecutors have begun more actively to charge additional counts, making possible these consecutive terms. For example, drug deals can also be charged as conspiracies and/or violations of the drug tax law. Judges and lawyers in Kansas also point out that the sentences for the most serious offenses are already pretty high in the presumptive range. Thus, for the most important cases, aggravated sentences may not appear to be that attractive to prosecutors.
August 19, 2004 at 12:44 AM
Week in Review
Post from Ron:
There has been more than enough turmoil in sentencing this summer, but we are finally getting a few days every now and then to catch our breath. In these short respites, it is worth reviewing recent events and asking about any patterns that have begun to form.
There are a few stories from the past week that are especially telling for me. Coming into the week, we already knew a lot about the profusion of positions that federal courts were taking, with different nuances on questions of constitutionality and severability. But this past week told us something about the prospects for the near- and mid-term in both the states and the federal courts.
The Vera Institute report (available here) diagnosed the potentially broad spread of Blakely effects within the states. The effects are indeed wide, reaching many states, but they might not become very deep. The Minnesota Commission report (available here), coupled with early returns from North Carolina (background here) suggested that the number of cases affected, even in truly presumptive guideline states, could remain quite small. On the other hand, there are some wildly expansionist possibilities, if Blakely reaches probation revocations, juvenile waivers into adult court, or calculations of criminal history that go beyond the simple fact of a past conviction (such as custody status at the time of the current crime).
And finally, the O'Daniel case from the Northern District of Oklahoma might point the way to a stable set of practices for plea negotiations and the waivers that judges will accept or not accept. The opinion (linked here) is worth another read as we think over the next few weeks about our direction.
August 8, 2004 at 11:29 PM
State of the States
In her Blakely dissent, Justice O'Connor identified nine states in addition to Washington with guideline systems that could be impacted by the Blakely ruling: Alaska, Arkansas, Florida, Kansas, Michigan, Minnesota, North Carolina, Oregon, and Pennsylvania. But the rapid reaction to Blakely in states like Arizona (details here and recent news report here) and California (details here and here) and Tennessee (details here) suggested that perhaps a much larger number of states will have to grapple with Blakely's impact on their sentencing systems.
The stunning and important report from the Vera Institute today (details here) confirms that the impact of Blakely in the states is far and wide. The Vera report identifies 21 states with structured sentencing systems that could be directly impacted by Blakely, and it also notes that "Blakely has implications for other state sentencing provisions" as well. Proving this point is this article discussing the effect of Blakely in Maine (which does not appear on Vera's list of likely impacted states).
The Vera report is a must-read for all Blakely followers because of its consistently insightful analysis, which includes trenchant observations about Blakely's "potential to reshape sentencing in the United States" and about the "apparently perverse result of the Blakely ruling." The questions raised and uncertainty caused by Blakely are highlighted throughout the Vera report, which in turn makes me eager to see a promised companion report from Vera entitled "Legal Considerations for State Sentencing Systems."
Finally, though I am not sure exactly when future Vera reports are coming, I do know that additional state discussion of Blakely is imminent. Various sources have reported that the Minnesota Sentencing Guidelines Commission will release its short-term report on Blakely this Friday afternoon. Indeed, here's an article with some early sketchy details about the report.
August 6, 2004 at 01:56 AM
The Vera Institute Speaks!!
The Vera Institute of Justice — which has been long been doing extremely important justice-related projects and in recent years been especially involved in state sentencing reform through its State Sentencing and Corrections Program — has just released a publication that looks at the impact of Blakely on state sentencing systems. The Vera report is entitled "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems," and it can be accessed here.
For a taste of what Vera contributes, here's a brief account from the report's authors Jon Wool and Don Stemen:
Few Supreme Court decisions have caused the turmoil that many state courts and practitioners are now experiencing as a result of Blakely v. Washington. The Court ruled that the Sixth Amendment forbids a judge to increase a criminal sentence based on facts not found by a jury beyond a reasonable doubt. The immediate effect? The invalidation of procedures used in Washington State's sentencing guideline system and the casting of doubt on the constitutional validity of structured sentencing systems nationwide. In more than 20 states, officials will need to look seriously at major aspects of how defendants are sentenced and many will need to make policy changes.
This publication is the first in a series that Vera's State Sentencing and Corrections program will produce as part of its effort to provide timely and helpful analysis of Blakely's reach, offer practical advice to state lawmakers needing to realign their systems, and report on state reactions to the ruling. In this first report, we look to answer two big questions: Which states' sentencing systems are affected by Blakely? and What responsive options are available to legislators and other policymakers?
Vera also has plans in the works to convene a national meeting in Denver on September 22-23, 2004, for teams of officials from selected states affected by Blakely. According to Vera officials:
This day-and-a-half discussion will provide an opportunity for state policymakers to engage with each other and with leading practitioners and experts to develop feasible strategies — both immediate and longer-term — for responding to the Court's ruling. Vera will cover travel and all other meeting costs for participants. Because participant space is limited, invitations will be extended based on an application process. States are asked to complete this linked application and return it to Vera by Friday, August 20, 2004.
Finally, as noted before here, Vera (which, by the way, also co-produces the Federal Sentencing Reporter) will host on Thursday, August 12th an early morning discussion on the implications of Blakely for the federal sentencing guidelines. Frank Bowman, one of FSR’s editors, will be the guest speaker. Vera asks that those interested in attending download the invitation here and RSVP because space is limited.
Download verafsrs_bowman_invite.pdf
August 5, 2004 at 04:37 PM
Will state sentencing commissions do better?
Because no state sentencing system is (yet) experiencing the turmoil now transpiring in the federal sentencing system (details here), it is understandable (and even perhaps defensible) that state sentencing commissions have not yet been active participants in the discussion of sentencing reforms after Blakely. Nevertheless, I visited today the home pages of most of the state sentencing commissions and was a bit troubled to find no mention of Blakely on any of the websites except Pennsylvania's (and the brief Pennsylvania discussion of Blakely is now a month old).
I was quite encouraged to see, however, on the website of the New Mexico Sentencing Commission that there are plans in place to discuss Blakely at the upcoming Conference of the National Association of Sentencing Commissions, which is taking place next month in Sante Fe. (For details, including information on how to get an affordable NASC T-shirt, click here.)
I was also pleased to see that the "NASC is setting up an internet page through the US Sentencing Commission for individual states to submit information, documents, recommendations, proposed legislation or reports related to their state's response to Blakely." Here is a link to that page, which currently has only limited information from Kansas, Michigan and Pennsylvania, but valuably seeks "to have each state provide information so it can serve as a clearinghouse of information on the states' responses."
Finally, according to my Blakely calender, at least one state sentencing commission is going to be speaking publicly soon: this Monday, I believe, marks the deadline that Minnesota Governor Tim Pawlenty set for a short-term report from the Minnesota Sentencing Guidelines Commissionon concerning his state's sentencing procedures in the wake of Blakely (background here). I am very eager to see what this well-regarded Commission is going to say (and perhaps not say) about Blakely.
July 30, 2004 at 05:46 PM
Tracking Blakely developments in the states
According to this story, the Blakely earthquake had its first aftershock in a Minnesota state court on Tuesday when the Minnesota Court of Appeals overturned a sex offender's 40-year prison sentence. Apparently, the state guidelines called for a sentence of 57 months, but the trial judge had imposed a 40-year sentence based on the conclusion that the defendant was a patterned sex offender.
Helpfully, for those interested in tracking Blakely's impact and the developments in the state courts, the National Center for State Courts has already produced this very helpful report entited "Blakely v. Washington: Implications for State Courts". This report not only is rich with analysis of what Blakely could mean for state sentencing systems and potential responses, but it also includes a terrific appendix detailing "Sentencing Practices and Other Relevant Policies in the States." Among the many interesting analytical points in the memo is the important observation that "probation and parole can be affected by Blakely under certain circumstances."
In addition, there are a number of valuable state sentencing links within the NCSC report, including a link to this memo by Robert L. Farb of The Institute of Government at the University of North Carolina, entitled "Blakely v. Washington and Its Impact on North Carolina’s Sentencing Laws."
July 21, 2004 at 02:28 AM
Deciphering Blakely for the states
The coming week -- with the Senate Judiciary Committee hearing on Blakely scheduled for Tuesday and additional federal court rulings sure to come and come fast -- will likely focus much attention on what Blakely means for federal sentencing. But what Blakely means for state sentencing systems is no less important (more than 90% of all criminal convictions are in state courts) and no less dynamic (state sentencing structures are interestingly diverse and will be impacted by Blakely in interestingly diverse ways).
Fortunately, we can be confident that there are a lot of fantastic projects and minds working on the state story. For example, the great folks at the Vera Institute of Justice's State Sentencing and Corrections Program have launched an initiative to assist state officials who are grappling with Blakely and its aftermath. As reported to me in an e-mail and detailed on its website:
SSC has already begun to provide advice, research, and other assistance to officials in states that are affected by the ruling. Later this summer, Vera will convene a major national meeting, providing a necessary forum for state officials to strategize together and learn from national experts in the sentencing field. Vera will also issue a series of publications designed to provide the information and resources policy makers need to craft short- and long-term response to Blakely.
In addition, I have heard that the great folks at Justice Strategies are also hard at work helping states make sense of Blakely. Justice Strategies has recently worked in conjunction with Families Against Mandatory Minimums on two great recent (pre-Blakely) reports about state sentencing developments -- a report about Arizona's sentencing laws avaliable here and a report about nationwide state sentencing developments available here. Both of these documents, and really everything produced by FAMM and Vera's SSC, should be required reading for everyone involved in sentencing reform.
Arizona
Still more interesting state decisions
Though the federal courts have, perhaps quite justifiably, issued relatively few Blakely decisions as the Booker and Fanfan arguments approach, the state courts have to keep sorting out Blakely without any reassurance that helpful guidance will be coming from the Supreme Court anytime soon. (Indeed, as I suggested here, the rulings in Booker and Fanfan could actually make life harder, not easier, for the states). And the state courts continue to issue interesting Blakely decisions.
For example, in State v. Fell, 2004 Ariz. App. LEXIS 137 (Ariz. App. Sept. 23, 2004), the court considered whether a trial court could impose a natural life prison term on a first-degree murder charge without the state having to prove to a jury beyond a reasonable doubt the aggravating circumstances the state previously had alleged when seeking the death penalty. The court ultimately concluded that Blakely did not require "a jury to find beyond a reasonable doubt that certain aggravating circumstances exist before a trial judge in Arizona may sentence a defendant convicted of first-degree murder to a natural life prison term rather than life with the possibility of parole."
In Commonwealth v. Junta, 2004 Mass. App. LEXIS 1080 (Mass. App. Sept. 23, 2004), the court dropped a footnote to explain: "The recent United States Supreme Court decision in Blakely has no application here, as the Massachusetts sentencing scheme provides for indeterminate sentences."
Meanwhile, in Blakely bellweather Ohio, the court in State v. Eckstein, 2004 Ohio App. LEXIS 4594 (Ohio App. 1st Dist. Sept. 24, 2004), the court avoids Blakely by asserting that statutory "findings that must be specified prior to a departure from the minimum prison term are discretionary factors to be used by the trial court in determining what sentence to impose within the authorized range."
September 25, 2004 at 05:30 PM
More interesting state developments nationwide
Though we all have lots of federal briefs to read, the state courts continue to work through an array of Blakely issues in an array of legal settings.
For example, from Arizona yesterday we get an interesting decision in Aragon v.Wilkinson, 2004 WL 2093357 (Ariz. App. Sept. 21, 2004), which involved a "special action petition arguing that the trial court abused its discretion by granting the State's motion to withdraw from a plea agreement that the court had previously accepted." The State sought to withdraw the plea agreement because of concerns that Blakely would preclude the imposition of an enhanced sentence, and the trial court allowed the plea agreement to be withdrawn. But the Arizona appellate court decided it should:
grant relief by vacating the trial court's order, which permitted the State to withdraw from a plea agreement entered with Aragon and previously accepted by the court. In light of Blakely, the maximum sentence the court may impose absent jury findings must be based only on the facts admitted by Aragon. However, the court may convene a jury to find any facts supporting imposition of an aggravated sentence.
From Minnesota, we get another Blakely remand of an upward departure, see State v. Behr, 2004 WL 2093999 (Minn. App. Sept 21, 2004), as well as two cases which essentially avoid the issue of Blakely's retroactivity, see Davis v. State, 2004 WL 2093964 (Minn. App. Sept. 21, 2004); Morris v. State, 2004 WL 2094675 (Minn. App. Sept. 21, 2004). From Tennessee, in State v. Cooper, 2004 WL 2093262 (Tenn. Crim. App. Sept. 20, 2004), we get a Blakely remand in a DUI context.
In California, we get another (unpublished) decision indicating that Blakely impacts the imposition of an upper-term sentence. See People v. Sidic, 2004 WL 2095547 (Cal. App. 2 Dist. Sept. 21, 2004). And in People v. Lemus, 2004 WL 2093427 (Cal. App. 4 Dist. Sept. 20, 2004), there is a bit of sparring over Blakely's applicability in California: the majority concludes that defendant Lemus' sentence is problematic after Blakely because "the trial court's decision to impose the upper term sentences was based on fact finding on matters not contained within the jury verdicts." But Judge Benke dissented on this point, contending that "California's sentencing scheme is entirely consistent with the principles discussed in Apprendi v. New Jersey and its progeny, Blakely."
September 22, 2004 at 08:03 AM
Blakely and victims’ rights
A fascinating new Blakely issue emerged in a decision from the Arizona state courts yesterday. In State ex rel. Romley v. Dairman, 2004 WL 1774619 (Ariz. App. Aug. 10, 2004), the court was considering the impact of the Victims' Bill of Rights in Arizona's constitution on a sentencing proceeding in a child molestation case. In the course of its analysis, the court had interesting things to say about the impact of Blakely on these sorts of issues:
We must address the impact of the United States Supreme Court's recent decision in Blakely v. Washington, No. 02-1632 (U .S. June 24, 2004) as it relates to the victims' rights issue before us.... Blakely obviously affects whether a trial judge, without a waiver from the parties, can aggravate a sentence based on the statutory aggravating factor of "physical, emotional and financial harm caused to the victim." A.R.S. § 13-702(C)(9).
We do not rule on the constitutionality of Arizona's sentencing scheme because that issue has neither been presented nor briefed. We refer to Blakely for two reasons only: (1) it is clear to us that the trial court will need to consider Blakely when providing for the particular type of sentencing proceeding (judge or jury) at which the victim has rights, and (2) regardless of the type of sentencing proceeding that Blakely constitutionally requires, the trial judge has a statutory and Arizona constitutional mandate to allow for the presentation of permissible evidence by a victim at a sentencing proceeding whether that proceeding is before the trial judge, the jury, or a combination of the two. See Ariz. Const. art. 2, § 2.1(A)(4) (victims have the right to "be heard at any proceeding involving a post-arrest release decision, a negotiated plea and sentencing ") (emphasis added); A.R.S. § 13-4410 (requiring that a victim be notified of her rights, including the right "to make a victim impact statement" and "to be present and heard at any presentence or sentencing proceeding") (emphasis added). Victims' rights are not restricted to sentencing proceedings conducted by the court. They must also be provided for in sentencing proceedings that are constitutionally required to be undertaken by a jury.
August 11, 2004 at 01:39 PM
Blakely developments in Arizona
A few recent news articles suggest that Arizona will be an interesting state to watch for Blakely developments. First, this article highlights that in Arizona, defense attorneys "find themselves in rare agreement with prosecutors on one issue: there's no need for the Legislature to rush to change state law in response to a U.S. Supreme Court ruling that may affect the way Arizona sentences criminals." I highly recommend reading this entire article, which is rich with information about coping efforts and plans for Arizona state sentencing. Among the interesting tidbits:
Maricopa County Public Defender James Haas said the criminal justice system's response to the ruling so far varies, with some counties using plea agreements that have defendants waive the need for jury findings, some reluctance by judges to impose sentences beyond the presumptive terms and one judge reportedly declaring that the ruling doesn't apply to Arizona.
Also, there is apparently a healthy collaborative spirit as the system is thinking about long-term fixes:
[D]efense attorneys are reaching out to prosecutors, scheduling informal meetings in coming weeks. "We may not agree on what we're going to do but at least we ought to talk together."... However, it's likely that numerous sentencing issues stemming from the ruling will still have to be fought out in court - no matter what the Legislature does in response, Haas said. "Every time you talk to people you come up with new issues."
And to provide a ground level view of post-Blakely life in Arizona, here is an article describing Blakely's impact on a manslaughter prosecution of Lee Parulski. Here's an interesting snipit:
During Thursday's hearing, Jim Coil, the prosecutor, said that he offered three options to Mike Rollins, Parulski's attorney, after the Blakely ruling. Coil said Parulski could waive his Blakely rights; a new plea agreement in which Parulski would plead guilty to second-degree murder could be signed; or a jury could be called. Rollins said he rejected the waiver or a new plea agreement. He said calling a jury would be acceptable. However, there is no procedural mechanism under Arizona law to call a jury in a case involving a plea agrement.
July 17, 2004 at 01:46 PM
More state wisdom
As stressed before, federal actors and institutions would do well to listen and learn from the states as they contemplate the post-Blakely world. This article from Arizona provides another example of state wisdom when it reports:
Prosecutors won't ask the Legislature to quickly meet in special session to change the state's criminal sentencing laws in reaction to a U.S. Supreme Court decision, officials said Friday. The Arizona Prosecuting Attorneys Advisory Council, a group of state, county and city prosecutors, has agreed that while legislative action will be needed, a go-slow approach is prudent, officials said. "We basically want to assure that a legislative fix arises from a thoughtful discussion and a reasoned discussion," said Ed Cook, the council's executive director.
Congress, DOJ, are you listening?
July 4, 2004 at 05:02 PM
California
More California aftershocks
I noted here that every time I log on there is another batch of noteworthy decisions from the California intermediate appellate courts. Proving my point, I return from my Toledo trip to find People v. Mallory, 2004 WL 2110084 (Cal. App. 2 Dist. Sept. 23, 2004), and People v. Barnes, 2004 WL 2137361 (Cal. App. 6 Dist. Sept. 24, 2004).
Mallory, which is "nonpublished," reaches this brief but consequential conclusion: "pursuant to Blakely, consideration of the fact that the victim suffered great bodily injury and the fact that appellant's prior convictions were of increasing seriousness to enhance the sentence violates appellant's Sixth Amendment rights, and as a result the sentence is invalid."
In contrast, Barnes is a (partially) published ruling which provides an extended examination of Apprendi and Blakely and waiver issues. Barnes is also especially noteworthy for the clever (and I think proper) way it reaches its conclusion "that defendant's sentence complied with Blakely as it was within the statutory maximum authorized by the jury's verdict and facts admitted by defendant." Though cross-case comparisons are not easy, the final analysis in Barnes seems similar to the analysis employed by US District Judge Connor in US v. Johns (discussed here).
September 25, 2004 at 09:53 AM
So many California cases, so little time
California has definitely become the pace-setter for states dealing with Blakely issues. As noted here, California's Supreme Court even beat SCOTUS to the punch in granting review of a major Blakely issue (and the folks at the First Division Appellate Project now have this very helpful page collecting materials on both Blakely cases to be reviewed by the California Supreme Court).
Moreover, it seems every time I log on to Westlaw or Lexis there is another batch of decisions of note from the California intemediate appellate courts. Just yesterday, three more interesting California decision were handed down, two of which found Blakely inapplicable to consecutive sentencing, see People v. White, 2004 WL 2106207 (Cal. App. 2 Dist. Sept. 22, 2004); People v. Park, 2004 WL 2106211 (Cal. App. 2 Dist. Sept. 22, 2004), and one of which summarily reversed a sentence as violative of Blakely, see People v. Butler, 2004 WL 2106213 (Cal. App. 2 Dist. Sept. 22, 2004).
A Westlaw search reveals that there are already nearly 50 California cases on-line addressing Blakely claims or issues (though a number of these decision are technically "nonpublished"). And, as detailed here by Jonathan Soglin "splits of authority are developing in California on various Blakely-related questions, including which aggravating factors does Alamendarez-Torres control, and how waiver and prejudice work in the Blakely context."
September 23, 2004 at 12:35 PM
More interesting state developments nationwide
Though we all have lots of federal briefs to read, the state courts continue to work through an array of Blakely issues in an array of legal settings.
For example, from Arizona yesterday we get an interesting decision in Aragon v.Wilkinson, 2004 WL 2093357 (Ariz. App. Sept. 21, 2004), which involved a "special action petition arguing that the trial court abused its discretion by granting the State's motion to withdraw from a plea agreement that the court had previously accepted." The State sought to withdraw the plea agreement because of concerns that Blakely would preclude the imposition of an enhanced sentence, and the trial court allowed the plea agreement to be withdrawn. But the Arizona appellate court decided it should:
grant relief by vacating the trial court's order, which permitted the State to withdraw from a plea agreement entered with Aragon and previously accepted by the court. In light of Blakely, the maximum sentence the court may impose absent jury findings must be based only on the facts admitted by Aragon. However, the court may convene a jury to find any facts supporting imposition of an aggravated sentence.
From Minnesota, we get another Blakely remand of an upward departure, see State v. Behr, 2004 WL 2093999 (Minn. App. Sept 21, 2004), as well as two cases which essentially avoid the issue of Blakely's retroactivity, see Davis v. State, 2004 WL 2093964 (Minn. App. Sept. 21, 2004); Morris v. State, 2004 WL 2094675 (Minn. App. Sept. 21, 2004). From Tennessee, in State v. Cooper, 2004 WL 2093262 (Tenn. Crim. App. Sept. 20, 2004), we get a Blakely remand in a DUI context.
In California, we get another (unpublished) decision indicating that Blakely impacts the imposition of an upper-term sentence. See People v. Sidic, 2004 WL 2095547 (Cal. App. 2 Dist. Sept. 21, 2004). And in People v. Lemus, 2004 WL 2093427 (Cal. App. 4 Dist. Sept. 20, 2004), there is a bit of sparring over Blakely's applicability in California: the majority concludes that defendant Lemus' sentence is problematic after Blakely because "the trial court's decision to impose the upper term sentences was based on fact finding on matters not contained within the jury verdicts." But Judge Benke dissented on this point, contending that "California's sentencing scheme is entirely consistent with the principles discussed in Apprendi v. New Jersey and its progeny, Blakely."
September 22, 2004 at 08:03 AM
Big Blakely rulings from the states
Federal courts have been relatively quiet on the Blakely front this week (perhaps because, as suggested here, federal judges are so busy sorting through piles of clerkship applications). But the state courts have been keeping Blakely busy; at least three consequential ruling from courts in California, Minnesota and Tennessee appeared on-line today:
From California, the court in People v. George, 2004 WL 2051167 (Cal. App. 4 Dist. Sept. 15, 2004), held that Blakely precluded the imposition of an upper term sentence, and rejected the government's claims that the defendant has waived the issue and that any Blakely error was harmless. Here's some key language:
[B]ecause Blakely was decided after George's sentencing, George cannot be said to have knowingly and intelligently waived his right to a jury trial....
Under California's determinate sentencing law, where a penal statute provides for three possible prison terms for a particular offense, the court is required to impose the middle term unless it finds, by a preponderance of the evidence, that the circumstances in aggravation outweigh the circumstances in mitigation. The Attorney General argues that the imposition of an upper term sentence under the California determinate sentencing scheme is not the same as the imposition of a penalty beyond the standard range and thus does not implicate Blakely. The attempted distinction, however, is one without a difference. Although an upper term is a "statutory maximum" penalty in the sense that it is the highest sentence a court can impose for a particular crime, it is not necessarily the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," which is the relevant standard for purposes of applying Blakely....
Here, the trial court relied on five aggravating factors as the basis for its decision to impose the upper term, to wit, that (1) the crime was serious and involved threats of great bodily injury to the victims; (2) the crime involved planning, sophistication and professionalism; (3) the current offense was more serious than the offense underlying George's prior conviction, which was itself serious; (4) at the time George committed the current offenses, he was on felony probation; and (5) George's prior performance on probation was poor.... [W]e conclude that the trial court was constitutionally entitled to rely only on the fact that George was on probation at the time of the charged offense as a basis for imposing an upper term sentence. Because this fact arises out of the fact of a prior conviction and is so essentially analogous to the fact of a prior conviction, we conclude that constitutional considerations do not require that matter to be tried to a jury and found beyond a reasonable doubt.... Thus, in accordance with the analysis of Blakely, the trial court was not required to afford George the right to a jury trial before relying on his status as a probationer at the time of the current offense as an aggravating factor supporting the imposition of the upper term.
The Attorney General suggests that the propriety of this single factor as a basis for imposing an upper term sentence is sufficient to withstand George's constitutional challenge to the sentence.... [But] we cannot conclude that the elimination of four of the cited factors would not have made a difference in the court's sentencing decision here.... The matter is remanded for resentencing.
From Minnesota, the court in Minnesota v. Ingalls, 2004 WL 2050533 (Minn. App. Sept. 14, 2004), reserves the imposition of a "double-upward departure imposed by the district court." The court's ruling gets right to the point: "Like the sentencing departure in Blakely, the upward departure in this case is not based solely on facts reflected in a jury verdict or admitted by appellant; it is based on the district court's determination that aggravating factors were proved. Because the district court could not have considered whether basing appellant's sentence on these factors is permissible under Blakely, we remand for reconsideration of appellant's sentence in light of Blakely."
From Tennessee, the court in State v. Syler, 2004 WL 2039809 (Tenn. Crim. App. Sept. 13, 2004), explains that, though Blakely was "not raised by either party, we are constrained to address the Defendant's sentence in light of Blakely." And the impact is consequential:
The Blakely decision calls into question the validity of Tennessee's sentencing scheme, insofar as that scheme permits trial courts to increase a defendant's presumptive sentence based upon enhancement factors found by the trial judge.... The presumptive sentence for a standard offender convicted of a Class A felony is twenty years.... Here, the Defendant was sentenced to twenty-one years for each of his Class A felonies, one year above the presumptive sentence, based upon several enhancement and mitigating factors found by the trial court at the sentencing hearing....
The trial court enhanced the Defendant's sentences for the Class A felonies on the bases that the victim was "particularly vulnerable because of age or physical or mental disability," and the Defendant "abused a position of public or private trust." Tenn. Code Ann. § 40-35-114(5), (16). Neither of these enhancement factors is reflected in the jury's verdict, nor was either factor admitted by the Defendant. Pursuant to Blakely, the trial court's enhancement of the Defendant's sentences on these bases was therefore erroneous. See State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL 1607002, at *10 (Tenn.Crim.App., Knoxville, July 19, 2004) (holding that the rule in Blakely precludes application of enhancement factors (5) and (16) where they have not been submitted to the jury and have not been admitted by the defendant).
Pursuant to Blakely, the Defendant's sentences for his Class A felonies should not have been increased above the statutory presumptive sentence based upon statutory enhancement factors (5) and (16). Accordingly, we reduce the Defendant's sentences for his two Class A felonies from twenty-one years to twenty years.
September 15, 2004 at 10:06 PM
Limiting the impact of Blakely in California
Just as most of the federal circuit courts seem to be doing their best to limit the Blakely fallout in the federal system (at least until Booker and Fanfan are decided), the California intermediate appellate courts are working hard to keep Blakely from disrupting too many California sentences. The latest case in point is People v. Sample, 2004 WL 2027285 (Cal. App. 3 Dist. Sept. 13, 2004), in which the court asserts on every possible ground that the defendant's Blakely claim is unavailing:
Defendant did not raise an Apprendi objection in the trial court, and factors used in imposing the upper term and consecutive sentencing were uncontested at trial and supported by overwhelming evidence. Hence, defendant is barred from raising the claim of Apprendi/Blakely error.
In any event, the rule of Apprendi and Blakely does not apply to California's consecutive sentencing scheme, and imposition of the upper term here was harmless beyond a reasonable doubt.
Similarly, in two unpublished opinions last week, two different California intermediate appellate courts gave the "prior conviction" exception a broad reading and application to affirm sentences that are arguably Blakely problematic. See People v. Bushnell, 2004 WL 2011414 (Cal. App. 2 Dist. Sept. 10, 2004); People v. Som, 2004 WL 1966058 (Cal. App. 3 Dist. Sept. 07, 2004).
Among other realities, these decisions highlight the mess that Blakely has created for state sentencing systems. They also spotlight the question of whether state courts will be able to effectively clean up state Blakely messes on their own, or will need the Supreme Court to soon address issues like the "prior conviction" exception and the applicability of Blakely to consecutive sentencing in order to bring order and normalcy back to state sentencing.
September 14, 2004 at 08:17 AM
More thoughtful California analysis
With great thanks to Jonathan Soglin at Criminal Appeal who first reported the news here, yesterday there was another important Blakely decision from a California intermediate appellate court in People v. Ochoa, no. D042215 (Cal. App. (4th Dist.), Sept. 2, 2004). In Ochoa, the court spoke thoughtful to the question of waiver and also concerning the applicability of Blakely to fact-finding by judges to support the imposition of imposing consecutive sentences.
On the waiver issue, the Ochoa court sensibly concluded that "because Blakely was decided after Ochoa's sentencing hearing, Ochoa cannot be said to have knowingly and intelligently waived any right to a jury trial relating to the imposition of a consecutive sentence by failing to raise such an objection at the hearing." On the judge's imposition of consecutive sentence, the Ochoa court emphasized the discretionary nature of the decision to impose consecutive sentence under California law:
[A]lthough there certainly is broad language in Blakely that could be interpreted to support the existence of a jury trial right in the face of any factual finding that affects the length of the sentence imposed, neither Blakely nor the cases that preceded it establish the right to a jury trial in connection with the imposition of consecutive sentences and in fact those cases suggest that a contrary conclusion applies in that context.
The United States Supreme Court has repeatedly recognized that a court may constitutionally exercise discretion in imposing sentence, and in doing so may consider various factors relating to the offense and the offender, provided that the sentence is "within the range provided by statute" for the charged offense....
This analysis applies here. Under California law, when a person is convicted of two or more crimes, the trial court has the discretion to impose the sentence on the subordinate counts consecutively or concurrently.... In light of the jury's finding (or the defendant's admission) of guilt on the charged offenses, the imposition of consecutive sentences does not exceed the statutory maximum penalty for those offenses and thus does not contravene the holding in Blakely.
September 3, 2004 at 06:49 AM
First official Blakely reversal in California
As Jonathan Soglin reports here over at Criminal Appeal, the first "official" California Blakely reversal happened yesterday in People v. Perry, No. A104398 (Cal. Ct. App. Aug. 31, 2004). The case involved the imposition of a four year upper-term sentence after defendant's guilty plea to "infliction of corporal injury to a cohabitant resulting in a traumatic condition." The court explained:
In this case, the trial court imposed the aggravated term based on the following factors: (1) "the defendant was armed with or used a weapon at the time of the commission of the offense;" (2) "the defendant has engaged in violent conduct which indicates he’s a danger to society;" (3) "his prior convictions as an adult are numerous and of increasing seriousness;" (4) "he was on a grant of summary probation at the time this crime was committed;" (5) "the defendant’s prior performance on summary probation has been unsatisfactory." Because under Blakely, at least four of these five factors must be determined by a jury, we conclude the trial court erred.
In expanding upon this conclusion, the court interestingly speculated on the scope of the "prior convictions" exceptions for purposes of applying factor (3) above. But then the court, after explaining its review standards, held that reversal was still required:
We need not decide whether the trial court (rather than the jury) may, after Blakely, find that defendant's crimes were of increasing seriousness, because we cannot determine, from this record, whether the four improper factors were "determinative" for the trial court. To put it another way, we cannot determine whether the trial court would have imposed the upper term based solely on defendant's increasing criminality.
Jonathan Soglin, who surely knows California law much better than I do, comments that if the California Supreme Court "follows this approach, and it should, reversals are likely in many other cases."
September 1, 2004 at 09:36 AM
Consecutive questions about consecutive sentencing
As I have suggested before here and here, the "prior conviction" exception should be — and perhaps through Shepard v. US will be — the next major Blakely issue for the Supreme Court to address after they resolve in Booker and Fanfan the applicability of Blakely to the federal guidelines. But two cases from the California state courts yesterday highlight that the issue of Blakely's applicability to judicial imposition of consecutive sentences will need to be directly addressed soon, too.
In People v. Vue, 2004 WL 1922504 (Cal. App. 3d Dist. Aug. 30, 2004), and People v. Lopez, 2004 WL 1922844 (Cal. App. 6 Dist. Aug 30, 2004), two different intermediate California appellate courts amended opinions to reject Blakely-based attacks on the imposition of consecutive sentences. Interestingly, in both cases the court said that, even if Blakely applies to factors used to impose consecutive sentences, the defendants' claims would be unavailing because of facts established at trial or admitted in a plea. Whatever one thinks of the specifics of these interesting rulings, they are a reminder of another important "Blakely front." (Recall that the California Supreme Court has agreed to consider this specific question in People v. Black, discussed here, though I suspect rulings in various states that will struggle with this question may not all end up consistent in their interpretations of Blakely and the Sixth Amendment.)
August 31, 2004 at 10:08 AM
Blakely news from California
One of my exciting Blakely questions for week (details here) was whether there would be any big Blakely news from the states. Though I am not sure the California intermediate appellate court decision in People v. Vonner, 2004 WL 1813998 (Cal.App. 2 Dist. Aug. 16, 2004), qualifies as big news, it is worth noting. Consider the opinion's first paragraph:
Contrary to the numerous contentions in the deluge of supplemental briefs now being filed in the California Appellate Courts, it is not at all clear that the United States Supreme Court opinion in Blakely v. Washington has sounded the death knell for California sentencing laws. It remains to be seen whether the Determinate Sentencing Law has been bruised, battered, or born into a better world. Here we only conclude that Blakely does not impact a sentencing court's imposition of a full consecutive sentence for an enumerated violent sex offense. (Pen.Code, § 667.6. subd. (c).)
Here's how the court in Vonner explains the defendant's Blakely/Apprendi argument and the court's rejection of that argument:
Citing Blakely, appellant contends that the trial court erred in imposing a full consecutive six year term on count 2 (forcible lewd conduct) after selecting the midterm six year sentence for lewd act on a child committed several weeks before count 2.
Appellant asserts that a consecutive sentence is tantamount to an Apprendi "enhancement." We disagree. [We have] explained that section 667.6 is an alternate sentencing scheme, not an enhancement. It does not increase the penalty beyond the prescribed statutory maximum. "Apprendi is relevant only where a judge-made factual determination increases the maximum statutory penalty for the particular crime...." (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.) That did not happen here.
Here the guilty verdicts subjected appellant to consecutive sentencing which the trial court was authorized to impose. The sentence was not based on any "fact" that the trial court found. The decision was based on the guilty verdicts and the statutory discretion given to the trial court by the Legislature. Appellant received less than the prescribed statutory maximum. He could have received a 16 year sentence.
Assuming, arguendo, that Blakely has some application in this context, any assumed error is harmless beyond a reasonable doubt. The jury found appellant guilty of forcible lewd conduct and lewd conduct. Although not required, it is undisputed that the offenses were committed weeks apart. Partial reversal for some type of new trial on the question of consecutive sentences would not be authorized by law and would be an exaltation of form over substance. Moreover, we ask, what fact would the jury be instructed to find which could serve as a predicate to the imposition of consecutive sentences?
August 17, 2004 at 11:59 AM
Second Thoughts in California’s Fifth District
As discussed in this effective article, California's Fifth Appellate District Court of Appeal yesterday substantially modified the standing order it entered last week (background here), which stated that the court would "no longer compensate appointed counsel for research or briefing directed to any issue presented by Blakely v. Washington." The Fifth District's modified order, which has somewhat mollified defense counsel concerned about safeguarding their client's rights and can be accessed here, states:
Pending opinions by the California Supreme Court in People v. Towne (review granted Jul. 14, 2004, S125677), and People v. Black (review granted Jul. 28, 2004, S126182), if appellate counsel wishes to raise any issue presented by Blakely v. Washington (2004), he or she may file a letter consistent in form with the attached “Supplemental Argument Pursuant to Standing Order No. 04-1,” thereby preserving the issues for further state and federal review. Counsel need not file an application for leave to file the supplemental statement....
The purpose of this order is to ensure that the subject issues will be raised and preserved for review in an efficient manner.
August 12, 2004 at 09:40 PM
Blakely-coping, California style
As if the day was not already mind-boggling enough, a reader from California was kind enough to send along news of this startling Standing Order that was recently entered by the Fifth District California Court of Appeal. The Order clearly is an effort to cope with (or perhaps just duck) Blakely issues until the California Supreme Court addresses Blakely's California meaning in two cases already slated for review. (Those two California cases are People v. Towne (background here), and People v. Black (background here). Here's the full text of the Standing Order:
Effective August 3, 2004, this court will no longer compensate appointed counsel for research or briefing directed to any issue presented by Blakely v. Washington (2004), pending opinions by the California Supreme Court in People v. Towne (review granted Jul. 14, 2004, S125677), and People v. Black (review granted Jul. 28, 2004, S126182).
However, if counsel or appellant wishes to raise a Blakely issue in any case pending before this court, he or she may file a letter stating with precision the Blakely issue[s] he or she wishes to raise on the appellant’s behalf and this court will deem such issue[s] raised, thereby preserving the appellant’s ability to seek review of the issue[s] in the California Supreme Court. The failure to identify an issue by a letter will operate as a waiver. The People, through the Attorney General, need not file any response to such a letter statement and the court will deem the stated issue[s] to be opposed by the People.
The Court may request further briefing in any case and will reevaluate this order after the California Supreme Court rules in Towne and Black. This order does not apply to any pending appeal in which this court has ordered or authorized, on or before August 2, 2004, specific briefing on a Blakely issue. The purpose of this order is to ensure that the subject issues will be raised and preserved for review in an efficient manner.
Dated: August 2, 2004
DIBIASO, ACTING P.J.
I am not sure whether to decry this order as unconstitutional or praise it as brilliant. It does reinforce for me the enormous challenges courts face trying to sort compelling Blakely claims from frivolous ones. I am not sure this Standing Order — with its slightly hidden "waiver" threat — is a sound (or even legally permissible) sorting mechanism. But I am not surprised to see a court looking for life preservers in the face of a tidal wave of Blakely claims.
August 5, 2004 at 08:33 PM
Another fascinating Blakely front
Part of what makes Blakely such a big deal is that there seems to be no limit to the arenas and settings in which Blakely issues might arise. We get more evidence of this fact from California today, where in People v. Sykes, a California Court of Appeal had to confront a defendant's claim that, under Blakely, "he was entitled to a jury trial as to those factors which determine whether consecutive sentences may be imposed [because an applicable statute] grants trial courts the authority to impose consecutive sentences" in certain situations. In other words, the defendant in Sykes argued under California law "that the United States Supreme Court’s holding in Blakely requires that a jury, not a judge, find whether the factors which warrant consecutive sentencing are present."
The Court of Appeal ultimately rejects the defendant's claim, saying:
Neither Blakely nor Apprendi purport to create a jury trial right to the determination as to whether to impose consecutive sentences. Both Blakely and Apprendi involve a conviction for a single count. The historical and jurisprudential basis for the Blakely and Apprendi holdings did not involve consecutive sentencing.... [T]he consecutive sentencing decision can only be made once the accused has been found beyond a reasonable doubt to have committed two or more offenses—this fully complies with the Sixth Amendment jury trial and Fourteenth Amendment due process clause rights. Those facts which affect the appropriate sentence within the range of potential terms of incarceration for each offense are subject to Blakely and Apprendi; this constitutional principle does not extend to whether the sentences for charges which have been found to be true beyond a reasonable doubt shall be served consecutively.
Though I am not an expert on California law, these conclusions certainly seem debatable. And, notably, we now have word that these conclusions will be debated by the California Supreme Court, which today granted review of just this issue. Specifically, in People v. Black, the California Supreme Court has now asked the parties to brief the following questions:
(1) What effect does Blakely v. Washington (2004) 124 S.Ct. 2531 have on the validity of defendant's upper term sentence? (2) What effect does Blakely have on the trial court's imposition of consecutive sentences?
July 28, 2004 at 06:05 PM
More Blakely insights for Californians
Now available on the Blakely page assembled by the Appellate Defenders, Inc. is this helpful memo, entitled "The Application of Blakely v. Washington to California Courts" and prepared by Superior Court Judges J. Richards Couzens and Tricia A. Bigelow.
The memo advises California's courts of potential sentencing issues raised by Blakely, and suggests a reasonable course of action to address the potential effect of the decision pending further analysis by California's appellate courts.
July 28, 2004 at 02:07 PM
California dreaming…
I am planning on getting a good night of sleep tonight, and perhaps I'll be dreaming about the California Supreme Court's ability to get right to work on the Blakely issue. Here's my prior post discussing People v. Towne, the first case in which Blakely issues will be examined by the California Supreme Court.
At first, based on a read of the lower court opinion, it was hard to figure out whether Towne was going to present the Blakely issue cleanly. Helpfully, additional information --- particularly this supplemental letter containing points and authorities in support of the defendant's argument for a reversal of his sentence to the upper term --- suggests that Towne should be a very interesting and effective case for state consideration of Blakely. Also helpful and interesting is this article giving background on the case.
Finally, it is worth highlighting that the fine folks at the First District Appellate Project now have a host of additional California-specific briefs/petitions on their fine FDAP Blakely Page.
July 16, 2004 at 06:35 PM
Action by the Supreme Court (of California)
Showing how fast it can move, the Supreme Court of California today granted a petition for review in People v. Towne, as noted here, and in so doing stated:
In addition to the issue raised in the petition for review, the parties shall address the following issues: (1) Does Blakely v. Washington (June 24, 2004) __ U.S. __ [2004 WL 1402697] preclude a trial court from making the required findings on aggravating factors for an upper term sentence? (2) If so, what standard of review applies, and was the error in this case prejudicial?
My instinct is to praise the Supreme Court of California for taking on Blakely so quickly. However, it might be argued that the Supreme Court of California ought to let lower court hash through some of these issues a bit first. Moreover, as Jonathan Soglin over at Criminal Appeal discusses briefly, the factual setting and legal issues raised in People v. Towne make the case pretty complicated. The unpublished court of appeals decision below is primarily focused on whether the trial court "abused its discretion by imposing the upper term and doubling it after refusing to" strike a prior conviction (a discretion that the California Supreme Court found provided in state law in People v. Superior Court (Romero), 13 Cal.4th 497 (1996). However, in the decision's final paragraph, the lower court stated:
Additionally, the trial court did not abuse its discretion by imposing the upper term. Contrary to appellant’s claim, the jury’s necessary findings on the acquitted counts did not conflict with the court’s findings. The court was well aware of the jury’s findings, acknowledged the victim lied and observed that the jury had been able to weigh the evidence and make credibility findings in reaching its verdicts. Moreover, even if there had been error, it would have been harmless. “A single factor in aggravation will support imposition of an upper term. [Citation.] ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’ [Citation.]” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) [Footnote 3: Further, the trial court could have used as reasons that appellant had served prior prison terms, his prior performance on probation or parole was unsatisfactory and that he was on parole at the time of the current offense. (See People v. Steele (2000) 83 Cal.App.4th 212, 227.)]
I believe that it is this portion of the opinion that is prompting the Supreme Court of California Blakely question, but it would seem that there are a number of interwined issues concerning the operation of discretion and the impact of prior convictions in the decision to impose an "upper term sentence." Perhaps Californians (or others) can use the comments to discuss whether Towne can or likely will be a good case for the Californias courts to start clearing up emerging Blakely issues in California law.
July 14, 2004 at 09:46 PM
More Blakely resources for Californians and others
The folks at The First District Appellate Project (FDAP), a non-profit law office located in San Francisco, deserve much credit for already providing the most detailed and effective resources on the potential impact of Blakely. Though the two great memos they have already posted here are only focused on what Blakely means for California state cases, their analysis and their plans to provide sample brief should be of great help to folks trying to deal with Blakely issues throughout the country. Keep up the good work, FDAP.
July 1, 2004 at 08:53 AM
Colorado
More big Blakely news from Colorado
As noted here, the Colorado Supreme Court earlier this week announced its intention to examine whether Colorado's sentencing scheme can survive Blakely. As that court gears up for this issue, a Colorado intermediate appellate court in People v. Solis-Martinez, 2004 WL 2002525 (Colo. App. Sept. 09, 2004), has now officially identified Blakely problems in the operation of Colorado's sentencing provisions.
The court in Solis-Martinez, after providing a brief account of Colorado's sentencing statutes, explains how the case facts raise a Blakely problem and how waiver claims cannot remedy that problem:
Here, in imposing the sixteen-year sentence [following the defendant's guilty plea to criminally negligent child abuse], the trial court relied on its findings that the child was in extreme pain for a long time, that defendant waited so long to take the child to the doctor, that she punished the child because of her circumstances, and that she had continually lied about the events leading to the child's injuries. The court further recorded its findings supporting the aggravated range sentence in a written supplement to its sentencing order that reflected in more detail the information that appeared in the presentence investigation report. However, under Apprendi and Blakely, a sentence beyond the relevant statutory maximum may be imposed only if a jury has determined the aggravating factors or the defendant has admitted them.
In so concluding, we disagree with the People's contention that defendant waived the right to a jury determination of the aggravating factors by pleading guilty to the charged offense. No aggravating factors were charged in the information, and defendant did not stipulate to any. She was not advised that she had a right to have a jury determine any aggravating factors. Therefore, her guilty plea cannot be interpreted as a waiver of her right to have a jury determine factors exposing her to greater punishment than otherwise authorized by the sentencing statute.
September 10, 2004 at 01:16 AM
Mile High Blakely
Though I have note yet seen a lower court opinion from Colorado grappling with Blakely's meaning for that state, this Denver Post article long ago blared in its headline that the Blakely "Ruling Could Nullify Sentences in Colorado." And now a thoughtful reader reports that the Colorado Supreme Court today announced its intention to examine whether Colorado's sentencing scheme can survive Blakely in the case of Lopez v. Colorado, No. 04SC150. According to the e-mail I received:
This case on which it granted certiorari deals with the mandatory aggravating factors of the defendant's being on parole, in prison, or an escapee from prison at the time of the crime. (In Colorado, the law sets a "presumptive sentencing range." The trial court may sentence the defendant to twice the maximum of this range if the court finds mandatory aggravating facts listed in the statute, or the court, in its discretion, finds other "extraordinary aggravating circumstances" that are not listed in the statute.)
While I ponder whether it is funny to describe the Colorado Supreme Court as the (Mile) High Court, you can read below the text of the court's order:
Whether Blakely v. Washington, 541 U.S. __, 124 S. Ct. 2531 (June 24, 2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000) prohibit the aggravation of petitioner's sentence because the statutory enhancement factors, defined in section 18-1-105(9)(a)(II) and section 18-1-105(9)(a)(V), were never charged in an information nor pled to by petitioner.
September 7, 2004 at 07:34 PM
Florida
Coast to Coast Blakely developments in the states
In addition to the decision by the California Supreme Court to tackle Blakely in a pending appeal, Blakely issues are start to crop up in other state appellate decisions around the country. Here are two interesting examples.
Florida: In the (hard to follow) case of Sigler v. Florida, 2004 Fla. App. LEXIS 10485 (4th Dist. July 14, 2004), a Florida intermediate appellate court explained that, before Apprendi and Blakely, the "Florida Supreme Court [had] construed [Florida code] section 924.34 to authorize appellate judges to make a finding of guilt as to each element of permissive lesser included offenses in place of a jury determination. See I.T. v. State, 694 So. 2d 720 (Fla. 1997)." The Sigler court then explains its view that:
[T]hese later decisions [of Apprendi and Blakely] make it clear beyond any doubt that section 924.34 as interpreted in I.T. is contrary to the Sixth Amendment when the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element of the permissive lesser included offense. That means that as for this circumstance we are expressly holding the statute invalid under the United States Constitution.
In other words, the Sigler court is finding a Sixth Amendment limit on appellate judge fact-finding as well as sentencing judge fact-finding.
Tennessee: Meanwhile, in Tennessee v. Fuller, 2004 Tenn. Crim. App. LEXIS 626 (July 13, 2004), the court frankly asserts that the "United States Supreme Court's recent opinion in Blakely v. Washington, 2004 U.S. LEXIS 4573 (2004), calls into question the continuing validity of our current sentencing scheme." Though the Fuller court then avoids finding a Blakely problem in the case at hand, it still seems noteworthy that the Tennessee courts already see problems with its sentencing schemes in light of Blakely.
July 15, 2004 at 12:39 AM
Indiana
Federal and state news in Indiana
Marcia Oddi over at the Indiana Law Blog has this interesting post about Blakely rulings and Blakely influenced outcomes in the Indiana federal courts.
And some of my other Hoosier friends have sent me today an interesting decision from a state court of appeals, Carson v. State, No. 49A04-0310-CR-494 (Ind. Ct. App. June 11, 2004), coming from a petition for rehearing. Here are the highlights from a short opinion which can be downloaded below:
Now Carson asks this Court to find—pursuant to the recently-decided Blakely v. Washington, 124 S. Ct. 2531 (2004)—that his sentence violates his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury. Given that Carson did not challenge his sentence on direct appeal, he has technically waived review of this issue, and the appropriate procedure would have been to challenge his sentence through post-conviction relief. Waiver notwithstanding, after considering the merits of Carson’s challenge, we find that Blakely has no effect on his enhanced sentence....
Indiana courts have not yet considered what effect, if any, the Blakely opinion may have on Indiana’s sentencing scheme. Carson urges us to find that his enhanced sentence is improper because the trial court "made factual findings and entered an enhanced sentence upon those findings" without requiring that a jury make those findings beyond a reasonable doubt. Those factual findings—or aggravating circumstances—consisted of the following: a history of criminal and delinquent activity, which includes multiple convictions; a need for corrective or rehabilitative treatment that can best be provided by incarceration in a penal institution or in a work release facility; and the strong likelihood that, based upon his criminal history, he will commit battery again. As to the first aggravator, the multiple convictions that the extensive criminal history comprises have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely. The other two aggravating circumstances are simply derivative of that extensive history of convictions and thus would seem also not to implicate the Blakely analysis. In any event, a single aggravating circumstance is adequate to justify a sentence enhancement. Therefore, even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, this finding would have no effect on Carson’s sentence.
Download carson_v. State.doc
August 20, 2004 at 06:43 PM
More state Blakely news in Minnesota and elsewhere
After Wednesday was a huge Blakely day in the federal system, it looks like today might be dominated by state news (and particularly by northern states starting with an M). As first reported here, the Minnesota Court of Appeals issued the state's first major Blakely ruling ealier this week in the course of overturning a sex offender's 40-year prison sentence. To quote Paul Harvey, here's "the rest of the story":
In State v. Whitley, the Minnesota Court of Appeals holds that the findings of fact under Minnesota's pattern sex-offender statute need now be proved to a jury beyond a reasonable doubt. As noted in the very helpful e-mail report to me about the case:
Interestingly, the Court indicates that Apprendi and a Minnesota Supreme Court case called Grossman, and not just Blakely, dictate this result. The remand instruction is cryptic, as Minnesota has no system of sentencing juries or anything of the sort (at least not yet).
In news from states not starting with an M, this well-done article from the Knoxville News-Sentinel reports on a Tennessee decision from an intermediate appellate court which reduce a defendant's sentencing by a year in a child abuse case following Blakely.
And, Marcia Oddi over at the Indiana Law Blog has noteworthy posts here and here about the likely impact of Blakely on Indiana state sentencing.
July 22, 2004 at 02:15 PM
Kansas
Spanning the States
Though there has not been huge Blakely news from the states recently, many small state stories continue to gurgle. Ron Wright, who has my great thanks for a wonderful job of guest-blogging last week, has relayed to me some of these stories upon his return from the National Association of Sentencing Commission's national meeting. I'll share Ron's many insights in a series of posts, through first let me note(small) news from the state courts.
In Minnesota this week there has been a spate of remands from the courts of appeals with instructions to the district court "to consider the application of Blakely." State v. Carlson, 2004 WL 1826141 (Minn. App. Aug. 17, 2004); see also State v. Rivera, 2004 WL 1826586 (Minn. App. Aug. 17, 2004); State v. Henderson, 2004 WL 1833936 (Minn. App. Aug. 17, 2004). Similarly, a recent Indiana court of appeals' decision, Wilkie v. State, 2004 WL 1843005 (Ind. App. Aug 18, 2004), dodges direct consideration of Blakely in a footnote which states that the court is "mindful" of Blakely, but "leave[s] for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B)."
This thoughtful news story effectively canvasses state sentencing developments, and explains why state Blakely stories have been slower to develop:
Blakely may have a somewhat more limited impact on the functioning of state sentencing systems because judicial fact-finding is used to determine sentences in only a small fraction of state-level cases. Plus, the nature of state sentencing systems makes it easier for state courts to sidestep the ruling until more permanent statutory solutions are enacted.
The article goes on to note, however, that we might just be noticing a period of calm before a major legislative storm:
Blakely could have considerable state-level repercussions, especially in states with sentencing structures similar to Washington's.... Daniel Wilhelm, director of state sentencing and corrections programs at the Vera Institute of Justice ... said he "absolutely" expects statehouses to be flooded with legislation aimed at tailoring state sentencing guidelines to bring them into compliance with Blakely, when legislatures reconvene next year. "People seem to be waiting to act until the legislatures reconvene in the new year," Wilhelm said.
Finally, this article notes that Kansas might serve "as a model for other states now looking to reform their systems of presumptive sentencing guidelines" because it "adopted a bifurcated system after the state supreme court in 2001 invalidated its system of presumptive sentencing guidelines." Interestingly, Ron had this report about views expressed at the NASC meeting concerning the "Kansas solution":
From Ron about the Kansas system:
Various academics, judges, prosecutors, sentencing commissioners, and defense attorneys [at the NASC meeting] related some of the events in Kansas. Kansas holds special interest for Blakely purposes, because a 2001 Kansas Supreme Court case, State v. Gould, anticipated the outcome in Blakely and struck down the use of judicial factual findings to authorize an aggravated sentence. The Kansas legislature responded by passing a statute that provides for bifurcated jury proceedings to find facts that could authorize an aggravated range sentence. As a result, Kansas now has a two-year head start in the use of bifurcated jury proceedings.
There have been very few bifurcated jury proceedings held in the Kansas courts. In most counties, there have been none at all; statewide, there may have been less than a half dozen. When these proceedings do occur, attorneys and judges estimated that they only added one to three hours to the jury trial.
Why so few bifurcated jury proceedings in Kansas? One explanation could be the fear of the unknowns and the hassle that could accompany the new extended jury proceedings. Another is the power of parties to negotiate an aggravated sentence: defendants might happily accept an aggravated range sentence in exchange for a reduction in the charges filed.
But judges and attorneys from Kansas relied on several features of Kansas law for more specific explanations. They noted that consecutive sentences now take the place of aggravated sentences. Under Kansas law, the judge can impose consecutive sentences up to double the length of the most serious charge if there is a conviction for a second count. Prosecutors have begun more actively to charge additional counts, making possible these consecutive terms. For example, drug deals can also be charged as conspiracies and/or violations of the drug tax law. Judges and lawyers in Kansas also point out that the sentences for the most serious offenses are already pretty high in the presumptive range. Thus, for the most important cases, aggravated sentences may not appear to be that attractive to prosecutors.
August 19, 2004 at 12:44 AM
Can the Kansas system work for the feds?
Because it's late, readers will have to make up their own Wizard of Oz jokes as we consider the virtues of following the yellow brick road of sentencing reform to Kansas. The New York Times today has an article suggesting "Justices' Sentencing Ruling May Have Model in Kansas." In a similar vein, The National Association of Criminal Defense Lawyers' (NACDL) has sent a letter to Senators Hatch and Leahy (available here thanks to our friends at TalkLeft), in which it is suggested that the Kansas approach of having a bifurcated trial to allow jury consideration of sentencing enhancements is the best way to give meaning to the constitutional rights announced in Blakely. I'll be interested to hear if the Kansas approach gets discussed at any length during the Senate Judiciary Committee hearing later today.
July 13, 2004 at 02:59 AM
Reports about Blakely from the field
I am pleased that various folks in various settings are starting to e-mail me with formal and informal reports about efforts and plans to deal with Blakely. Keep those cards and letter coming (and let me know if I am have your permission to post your reports). You can find here a post reporting the Blakely "word on the street" in one jurisdiction. In addition, I received an important and helpful e-mail from Jeffrey L. Fisher, the lawyer from Davis Wright Tremaine LLP, who won Blakely's case in the Supreme Court. Here's what he has to say:
One thing I think it's important for people to know is that, at least as far as the states are concerned, we're not in uncharted waters. Kansas has already been here, and it provides a useful source from both a legislative and a judicial point of view. Following the Kansas SCt's decision in State v. Gould, 23 P.3d 801 (Kan. 2001), holding that Apprendi applied to facts supporting upward departures under its state guidelines, the Kansas legislature amended the guidelines to comply with Apprendi. See Kan. Stat. Ann. 21-4716, 4718. (In fact, Justice Scalia cited this legislative response in the Blakely opinion.) These amendments may provide a helpful template for legislatures and commissions in guideline states; the word from Kansas is that they work just fine.
In addition, and perhaps even more helpful to lawyers out there, the Kansas courts following Gould have developed a rich body of law concerning how to deal with defendants who received upward departures before Gould came down. There are cases dealing with defendants who pleaded guilty without challenging the aggravator, e.g, State v. Pruitt, 60 P.3d 931 (Kan. 2003); defendants who stipulated to the aggravator, State v. Cody, 35 P.3d 800 (Kan. 2001); defendants who agreed to the upward departure, e.g. State v. Cullen, 60 P.3d 933 (Kan. 2003); State v. Johnson, 55 P.3d 927 (Kan. App. 2002), and many more permutations. There also are cases addressing how courts should proceed until there is a new legislative procedure for finding aggravating facts that complies with Apprendi. See, e.g., State v. Kessler, 73 P.3d 761, 771-72 (Kan. 2003); State v. Santos-Garza, 72 P.3d 560 (Kan. 2003).
Maine
Interesting state Blakely news
Though the federal sentencing story will take center stage later today when the respondents and amici file briefs in Booker and Fanfan, today's papers have more interesting news on Blakely in the states. From Maine, this article details that the Maine Supreme Court later this week will hear additional argument in two pending cases in order to examine the impact of Blakely.
From Tennessee, this article reports on the interesting and challenging work of the Governor's Task Force (previously discussed here and here) which was assigned the task of devising an effective response to Blakely for Tennessee. In addition, this editorial urges a set of responses to Blakely for Tennessee and federal sentencing.
September 21, 2004 at 07:37 AM
Massachusetts
Still more interesting state decisions
Though the federal courts have, perhaps quite justifiably, issued relatively few Blakely decisions as the Booker and Fanfan arguments approach, the state courts have to keep sorting out Blakely without any reassurance that helpful guidance will be coming from the Supreme Court anytime soon. (Indeed, as I suggested here, the rulings in Booker and Fanfan could actually make life harder, not easier, for the states). And the state courts continue to issue interesting Blakely decisions.
For example, in State v. Fell, 2004 Ariz. App. LEXIS 137 (Ariz. App. Sept. 23, 2004), the court considered whether a trial court could impose a natural life prison term on a first-degree murder charge without the state having to prove to a jury beyond a reasonable doubt the aggravating circumstances the state previously had alleged when seeking the death penalty. The court ultimately concluded that Blakely did not require "a jury to find beyond a reasonable doubt that certain aggravating circumstances exist before a trial judge in Arizona may sentence a defendant convicted of first-degree murder to a natural life prison term rather than life with the possibility of parole."
In Commonwealth v. Junta, 2004 Mass. App. LEXIS 1080 (Mass. App. Sept. 23, 2004), the court dropped a footnote to explain: "The recent United States Supreme Court decision in Blakely has no application here, as the Massachusetts sentencing scheme provides for indeterminate sentences."
Meanwhile, in Blakely bellweather Ohio, the court in State v. Eckstein, 2004 Ohio App. LEXIS 4594 (Ohio App. 1st Dist. Sept. 24, 2004), the court avoids Blakely by asserting that statutory "findings that must be specified prior to a departure from the minimum prison term are discretionary factors to be used by the trial court in determining what sentence to impose within the authorized range."
September 25, 2004 at 05:30 PM
Michigan
Blakely back in the news
The coming week should have plenty of Blakely news with the Solicitor General's office and the US Sentencing Commission both due to submit briefs in the Booker and Fanfan cases on Wednesday. In the meantime, the newspapers are again finding other noteworthy Blakely stories.
From Tennessee articles here and here report on the recommendation made by the Task Force appointed by Governor Phil Bredesen that a special session of the Tennessee General Assembly is not needed to deal with Blakely. Background on the Tennessee Task Force can be found here and here, and this recent news article thoughtfully explains why the "Task force on sentencing has its work cut out for it." This article also details the variations in Tennessee sentencing practices in the wake of Blakely:
[Cleveland attorney James F.] Logan said some judges are ignoring Blakely. Others, he said, insist it mandates only minimum sentences, ignoring even prior convictions that the nation's high court clearly said could be used to boost sentences. At least two judges are now holding separate sentencing hearings, allowing juries to decide which factors a judge can use, if any, to ratchet up a criminal's sentence. They are doing so even though there is no law on the books that allows that process, known as a bifurcated hearing, in any case other than those in which the death penalty or life without parole is sought as punishment.
In other state news, this article discusses a peculiar ruling from a Michigan state judge who apparently declared Michigan's state sentencing guidelines unconstitutional in order to be able to sentence a child molester to a much longer prison sentence than the guidelines provided.
From the federal desk come two Blakely stories out of the Eighth Circuit. This article discusses a factually and legally interesting case involving a former Kansas City pharmacist who received a 30-year prison term for diluting chemotherapy drugs. And this article discusses a North Dakota perjury case in which all parties agreed to put sentencing on hold until November 10 with the hope that federal sentencing law will be clearer at that time.
August 28, 2004 at 09:20 AM
The Michigan Supreme Court speaks!!
We now have what I believe is the first state Supreme Court decision to expressly consider Blakely. Today in Michigan v. Claypool, the Michigan Supreme Court articulated the view (in footnote 14) that Michigan's guideline scheme operates in a manner that avoids Blakely problems:
Michigan ... has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is not determined by the trial judge but is set by law. MCL 769.8. The minimum is based on guidelines ranges.... The trial judge sets the minimum but can never exceed the maximum (other than in the case of a habitual offender, which we need not consider because Blakely specifically excludes the fact of a previous conviction from its holding). Accordingly, the Michigan system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher sentence based on facts not found by the jury in violation of the Sixth Amendment.
In a separate opinion concurring in part and dissenting in part, Chief Judge Corrigan suggests that Blakely matters in Michigan may not be so simple:
I agree with the majority that the recent United States Supreme Court decision in Blakely v Washington, does not invalidate Michigan’s indeterminate sentencing scheme as a whole. Nonetheless, the majority’s sweeping language regarding judicial powers to effect departures (not limited to downward departures) will invite challenges to Michigan’s scheme; it appears to conflict with principles set out in Blakely.
Here's the full opinion for your reading pleasure:
Download michigan_claypool_decision.pdf
There are additional opinions and issues of note in Claypool, which looks like a very interesting state guideline case wholly apart from its encounters with Blakely. Because I am not well versed on Michigan state law —indeed, there may be a clause in my Ohio State contract which legally forbids me from thinking too much about anything Michigan — perhaps readers more familiar with Michigan's sentencing scheme can provide some immediate commentary on this decision.
UPDATE: In this article discussing the Claypool decision, Jim Neuward, director of the State Appellate Defender Office, says "It's nowhere near as simple as the court thinks." said
July 22, 2004 at 01:00 PM
Minnesota
More interesting state developments nationwide
Though we all have lots of federal briefs to read, the state courts continue to work through an array of Blakely issues in an array of legal settings.
For example, from Arizona yesterday we get an interesting decision in Aragon v.Wilkinson, 2004 WL 2093357 (Ariz. App. Sept. 21, 2004), which involved a "special action petition arguing that the trial court abused its discretion by granting the State's motion to withdraw from a plea agreement that the court had previously accepted." The State sought to withdraw the plea agreement because of concerns that Blakely would preclude the imposition of an enhanced sentence, and the trial court allowed the plea agreement to be withdrawn. But the Arizona appellate court decided it should:
grant relief by vacating the trial court's order, which permitted the State to withdraw from a plea agreement entered with Aragon and previously accepted by the court. In light of Blakely, the maximum sentence the court may impose absent jury findings must be based only on the facts admitted by Aragon. However, the court may convene a jury to find any facts supporting imposition of an aggravated sentence.
From Minnesota, we get another Blakely remand of an upward departure, see State v. Behr, 2004 WL 2093999 (Minn. App. Sept 21, 2004), as well as two cases which essentially avoid the issue of Blakely's retroactivity, see Davis v. State, 2004 WL 2093964 (Minn. App. Sept. 21, 2004); Morris v. State, 2004 WL 2094675 (Minn. App. Sept. 21, 2004). From Tennessee, in State v. Cooper, 2004 WL 2093262 (Tenn. Crim. App. Sept. 20, 2004), we get a Blakely remand in a DUI context.
In California, we get another (unpublished) decision indicating that Blakely impacts the imposition of an upper-term sentence. See People v. Sidic, 2004 WL 2095547 (Cal. App. 2 Dist. Sept. 21, 2004). And in People v. Lemus, 2004 WL 2093427 (Cal. App. 4 Dist. Sept. 20, 2004), there is a bit of sparring over Blakely's applicability in California: the majority concludes that defendant Lemus' sentence is problematic after Blakely because "the trial court's decision to impose the upper term sentences was based on fact finding on matters not contained within the jury verdicts." But Judge Benke dissented on this point, contending that "California's sentencing scheme is entirely consistent with the principles discussed in Apprendi v. New Jersey and its progeny, Blakely."
September 22, 2004 at 08:03 AM
Big Blakely rulings from the states
Federal courts have been relatively quiet on the Blakely front this week (perhaps because, as suggested here, federal judges are so busy sorting through piles of clerkship applications). But the state courts have been keeping Blakely busy; at least three consequential ruling from courts in California, Minnesota and Tennessee appeared on-line today:
From California, the court in People v. George, 2004 WL 2051167 (Cal. App. 4 Dist. Sept. 15, 2004), held that Blakely precluded the imposition of an upper term sentence, and rejected the government's claims that the defendant has waived the issue and that any Blakely error was harmless. Here's some key language:
[B]ecause Blakely was decided after George's sentencing, George cannot be said to have knowingly and intelligently waived his right to a jury trial....
Under California's determinate sentencing law, where a penal statute provides for three possible prison terms for a particular offense, the court is required to impose the middle term unless it finds, by a preponderance of the evidence, that the circumstances in aggravation outweigh the circumstances in mitigation. The Attorney General argues that the imposition of an upper term sentence under the California determinate sentencing scheme is not the same as the imposition of a penalty beyond the standard range and thus does not implicate Blakely. The attempted distinction, however, is one without a difference. Although an upper term is a "statutory maximum" penalty in the sense that it is the highest sentence a court can impose for a particular crime, it is not necessarily the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," which is the relevant standard for purposes of applying Blakely....
Here, the trial court relied on five aggravating factors as the basis for its decision to impose the upper term, to wit, that (1) the crime was serious and involved threats of great bodily injury to the victims; (2) the crime involved planning, sophistication and professionalism; (3) the current offense was more serious than the offense underlying George's prior conviction, which was itself serious; (4) at the time George committed the current offenses, he was on felony probation; and (5) George's prior performance on probation was poor.... [W]e conclude that the trial court was constitutionally entitled to rely only on the fact that George was on probation at the time of the charged offense as a basis for imposing an upper term sentence. Because this fact arises out of the fact of a prior conviction and is so essentially analogous to the fact of a prior conviction, we conclude that constitutional considerations do not require that matter to be tried to a jury and found beyond a reasonable doubt.... Thus, in accordance with the analysis of Blakely, the trial court was not required to afford George the right to a jury trial before relying on his status as a probationer at the time of the current offense as an aggravating factor supporting the imposition of the upper term.
The Attorney General suggests that the propriety of this single factor as a basis for imposing an upper term sentence is sufficient to withstand George's constitutional challenge to the sentence.... [But] we cannot conclude that the elimination of four of the cited factors would not have made a difference in the court's sentencing decision here.... The matter is remanded for resentencing.
From Minnesota, the court in Minnesota v. Ingalls, 2004 WL 2050533 (Minn. App. Sept. 14, 2004), reserves the imposition of a "double-upward departure imposed by the district court." The court's ruling gets right to the point: "Like the sentencing departure in Blakely, the upward departure in this case is not based solely on facts reflected in a jury verdict or admitted by appellant; it is based on the district court's determination that aggravating factors were proved. Because the district court could not have considered whether basing appellant's sentence on these factors is permissible under Blakely, we remand for reconsideration of appellant's sentence in light of Blakely."
From Tennessee, the court in State v. Syler, 2004 WL 2039809 (Tenn. Crim. App. Sept. 13, 2004), explains that, though Blakely was "not raised by either party, we are constrained to address the Defendant's sentence in light of Blakely." And the impact is consequential:
The Blakely decision calls into question the validity of Tennessee's sentencing scheme, insofar as that scheme permits trial courts to increase a defendant's presumptive sentence based upon enhancement factors found by the trial judge.... The presumptive sentence for a standard offender convicted of a Class A felony is twenty years.... Here, the Defendant was sentenced to twenty-one years for each of his Class A felonies, one year above the presumptive sentence, based upon several enhancement and mitigating factors found by the trial court at the sentencing hearing....
The trial court enhanced the Defendant's sentences for the Class A felonies on the bases that the victim was "particularly vulnerable because of age or physical or mental disability," and the Defendant "abused a position of public or private trust." Tenn. Code Ann. § 40-35-114(5), (16). Neither of these enhancement factors is reflected in the jury's verdict, nor was either factor admitted by the Defendant. Pursuant to Blakely, the trial court's enhancement of the Defendant's sentences on these bases was therefore erroneous. See State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL 1607002, at *10 (Tenn.Crim.App., Knoxville, July 19, 2004) (holding that the rule in Blakely precludes application of enhancement factors (5) and (16) where they have not been submitted to the jury and have not been admitted by the defendant).
Pursuant to Blakely, the Defendant's sentences for his Class A felonies should not have been increased above the statutory presumptive sentence based upon statutory enhancement factors (5) and (16). Accordingly, we reduce the Defendant's sentences for his two Class A felonies from twenty-one years to twenty years.
September 15, 2004 at 10:06 PM
More Minnesota remands
As discussed here and here, the Minnesota Sentencing Guidelines Commission's "short-term report" about Blakely sought to downplay the overall impact of Blakely on Minnesota state sentencing. And though it may be true that neither Minnesota nor any other state will experience the dramatic disruptions occurring in the federal system, the now regular pattern of Blakely remands from the state intermediate courts in Minnesota reveals that even "small" Blakely disruptions are still disruptive to the regularized administration of justice.
Thus, today we get standard remands in three Minnesota state cases. See State v. Lenear, 2004 WL 1878770 (Minn. App. Aug. 24, 2004); State v. Juenke, 2004 WL 1878797 (Minn. App. Aug. 24, 2004); State v. Krueger, 2004 WL 1878998 (Minn. App., Aug. 24, 2004). There is nothing uniquely consequential about any of these remands, though I could not help but notice that all three cases involved sex offenses and Lenear involved a "quadruple upward durational departure"!
August 24, 2004 at 05:45 PM
Spanning the States
Though there has not been huge Blakely news from the states recently, many small state stories continue to gurgle. Ron Wright, who has my great thanks for a wonderful job of guest-blogging last week, has relayed to me some of these stories upon his return from the National Association of Sentencing Commission's national meeting. I'll share Ron's many insights in a series of posts, through first let me note(small) news from the state courts.
In Minnesota this week there has been a spate of remands from the courts of appeals with instructions to the district court "to consider the application of Blakely." State v. Carlson, 2004 WL 1826141 (Minn. App. Aug. 17, 2004); see also State v. Rivera, 2004 WL 1826586 (Minn. App. Aug. 17, 2004); State v. Henderson, 2004 WL 1833936 (Minn. App. Aug. 17, 2004). Similarly, a recent Indiana court of appeals' decision, Wilkie v. State, 2004 WL 1843005 (Ind. App. Aug 18, 2004), dodges direct consideration of Blakely in a footnote which states that the court is "mindful" of Blakely, but "leave[s] for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B)."
This thoughtful news story effectively canvasses state sentencing developments, and explains why state Blakely stories have been slower to develop:
Blakely may have a somewhat more limited impact on the functioning of state sentencing systems because judicial fact-finding is used to determine sentences in only a small fraction of state-level cases. Plus, the nature of state sentencing systems makes it easier for state courts to sidestep the ruling until more permanent statutory solutions are enacted.
The article goes on to note, however, that we might just be noticing a period of calm before a major legislative storm:
Blakely could have considerable state-level repercussions, especially in states with sentencing structures similar to Washington's.... Daniel Wilhelm, director of state sentencing and corrections programs at the Vera Institute of Justice ... said he "absolutely" expects statehouses to be flooded with legislation aimed at tailoring state sentencing guidelines to bring them into compliance with Blakely, when legislatures reconvene next year. "People seem to be waiting to act until the legislatures reconvene in the new year," Wilhelm said.
Finally, this article notes that Kansas might serve "as a model for other states now looking to reform their systems of presumptive sentencing guidelines" because it "adopted a bifurcated system after the state supreme court in 2001 invalidated its system of presumptive sentencing guidelines." Interestingly, Ron had this report about views expressed at the NASC meeting concerning the "Kansas solution":
From Ron about the Kansas system:
Various academics, judges, prosecutors, sentencing commissioners, and defense attorneys [at the NASC meeting] related some of the events in Kansas. Kansas holds special interest for Blakely purposes, because a 2001 Kansas Supreme Court case, State v. Gould, anticipated the outcome in Blakely and struck down the use of judicial factual findings to authorize an aggravated sentence. The Kansas legislature responded by passing a statute that provides for bifurcated jury proceedings to find facts that could authorize an aggravated range sentence. As a result, Kansas now has a two-year head start in the use of bifurcated jury proceedings.
There have been very few bifurcated jury proceedings held in the Kansas courts. In most counties, there have been none at all; statewide, there may have been less than a half dozen. When these proceedings do occur, attorneys and judges estimated that they only added one to three hours to the jury trial.
Why so few bifurcated jury proceedings in Kansas? One explanation could be the fear of the unknowns and the hassle that could accompany the new extended jury proceedings. Another is the power of parties to negotiate an aggravated sentence: defendants might happily accept an aggravated range sentence in exchange for a reduction in the charges filed.
But judges and attorneys from Kansas relied on several features of Kansas law for more specific explanations. They noted that consecutive sentences now take the place of aggravated sentences. Under Kansas law, the judge can impose consecutive sentences up to double the length of the most serious charge if there is a conviction for a second count. Prosecutors have begun more actively to charge additional counts, making possible these consecutive terms. For example, drug deals can also be charged as conspiracies and/or violations of the drug tax law. Judges and lawyers in Kansas also point out that the sentences for the most serious offenses are already pretty high in the presumptive range. Thus, for the most important cases, aggravated sentences may not appear to be that attractive to prosecutors.
August 19, 2004 at 12:44 AM
Minnesota’s Commission Speaks
Post from Ron:
This afternoon the Minnesota Sentencing Guidelines Commission conveyed its Blakely report to the Minnesota Governor. Here is a link to the report. And here is the money quote:
The recent Blakely v. Washington decision directly impacts neither the constitutionality nor the structure of the Minnesota Sentencing Guidelines. However, the decision does affect certain sentencing procedures pertaining to aggravated departures and specific sentence enhancements that will need to be modified to meet the constitutionality issues identified under Blakely. Those procedures can be corrected, as demonstrated by the state of Kansas, who addressed this very issue in 2001, with limited impact on the criminal justice system as a whole. The impact of Blakely on sentencing in Minnesota, while temporarily disruptive, is limited in scope and can be addressed within the current sentencing guidelines scheme.
I come to sentencing questions with a keen interest for state systems, since the state courts (collectively) process far more defendants than the federal courts and offer more interesting and hopeful variety in their solutions to problems of crime and justice. So you'll be hearing more from me about this Minnesota report after I've read it. In the meantime, you've now got your own copy to peruse. What do you think?
August 6, 2004 at 01:58 PM
Will state sentencing commissions do better?
Because no state sentencing system is (yet) experiencing the turmoil now transpiring in the federal sentencing system (details here), it is understandable (and even perhaps defensible) that state sentencing commissions have not yet been active participants in the discussion of sentencing reforms after Blakely. Nevertheless, I visited today the home pages of most of the state sentencing commissions and was a bit troubled to find no mention of Blakely on any of the websites except Pennsylvania's (and the brief Pennsylvania discussion of Blakely is now a month old).
I was quite encouraged to see, however, on the website of the New Mexico Sentencing Commission that there are plans in place to discuss Blakely at the upcoming Conference of the National Association of Sentencing Commissions, which is taking place next month in Sante Fe. (For details, including information on how to get an affordable NASC T-shirt, click here.)
I was also pleased to see that the "NASC is setting up an internet page through the US Sentencing Commission for individual states to submit information, documents, recommendations, proposed legislation or reports related to their state's response to Blakely." Here is a link to that page, which currently has only limited information from Kansas, Michigan and Pennsylvania, but valuably seeks "to have each state provide information so it can serve as a clearinghouse of information on the states' responses."
Finally, according to my Blakely calender, at least one state sentencing commission is going to be speaking publicly soon: this Monday, I believe, marks the deadline that Minnesota Governor Tim Pawlenty set for a short-term report from the Minnesota Sentencing Guidelines Commissionon concerning his state's sentencing procedures in the wake of Blakely (background here). I am very eager to see what this well-regarded Commission is going to say (and perhaps not say) about Blakely.
July 30, 2004 at 05:46 PM
More state Blakely news in Minnesota and elsewhere
After Wednesday was a huge Blakely day in the federal system, it looks like today might be dominated by state news (and particularly by northern states starting with an M). As first reported here, the Minnesota Court of Appeals issued the state's first major Blakely ruling ealier this week in the course of overturning a sex offender's 40-year prison sentence. To quote Paul Harvey, here's "the rest of the story":
In State v. Whitley, the Minnesota Court of Appeals holds that the findings of fact under Minnesota's pattern sex-offender statute need now be proved to a jury beyond a reasonable doubt. As noted in the very helpful e-mail report to me about the case:
Interestingly, the Court indicates that Apprendi and a Minnesota Supreme Court case called Grossman, and not just Blakely, dictate this result. The remand instruction is cryptic, as Minnesota has no system of sentencing juries or anything of the sort (at least not yet).
In news from states not starting with an M, this well-done article from the Knoxville News-Sentinel reports on a Tennessee decision from an intermediate appellate court which reduce a defendant's sentencing by a year in a child abuse case following Blakely.
And, Marcia Oddi over at the Indiana Law Blog has noteworthy posts here and here about the likely impact of Blakely on Indiana state sentencing.
July 22, 2004 at 02:15 PM
Tracking Blakely developments in the states
According to this story, the Blakely earthquake had its first aftershock in a Minnesota state court on Tuesday when the Minnesota Court of Appeals overturned a sex offender's 40-year prison sentence. Apparently, the state guidelines called for a sentence of 57 months, but the trial judge had imposed a 40-year sentence based on the conclusion that the defendant was a patterned sex offender.
Helpfully, for those interested in tracking Blakely's impact and the developments in the state courts, the National Center for State Courts has already produced this very helpful report entited "Blakely v. Washington: Implications for State Courts". This report not only is rich with analysis of what Blakely could mean for state sentencing systems and potential responses, but it also includes a terrific appendix detailing "Sentencing Practices and Other Relevant Policies in the States." Among the many interesting analytical points in the memo is the important observation that "probation and parole can be affected by Blakely under certain circumstances."
In addition, there are a number of valuable state sentencing links within the NCSC report, including a link to this memo by Robert L. Farb of The Institute of Government at the University of North Carolina, entitled "Blakely v. Washington and Its Impact on North Carolina’s Sentencing Laws."
July 21, 2004 at 02:28 AM
Minnesota’s a leader again
Not long after I suggest that the feds learn from the states, I see this report of how Minnesota is sensibly handling Blakely:
Minnesota Gov. Tim Pawlenty ordered a review of the state's sentencing procedures so they'll comply with a recent U.S. Supreme Court ruling on Friday. He said the court decision "appears to have major ramifications" for Minnesota's criminal justice system and asked the Sentencing Guidelines Commission to make both short-term and long-term recommendations for changes. The short-term recommendations will be due in 30 days.
Minnesota is rightly praised for leading the states in the development of sound guideline sentencing reforms --- see, e.g., Richard Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Federal Sentencing Reporter 69 (1999) --- and it is nice to see Minnesota taking the lead again.
July 2, 2004 at 06:50 PM
New Mexico
Will state sentencing commissions do better?
Because no state sentencing system is (yet) experiencing the turmoil now transpiring in the federal sentencing system (details here), it is understandable (and even perhaps defensible) that state sentencing commissions have not yet been active participants in the discussion of sentencing reforms after Blakely. Nevertheless, I visited today the home pages of most of the state sentencing commissions and was a bit troubled to find no mention of Blakely on any of the websites except Pennsylvania's (and the brief Pennsylvania discussion of Blakely is now a month old).
I was quite encouraged to see, however, on the website of the New Mexico Sentencing Commission that there are plans in place to discuss Blakely at the upcoming Conference of the National Association of Sentencing Commissions, which is taking place next month in Sante Fe. (For details, including information on how to get an affordable NASC T-shirt, click here.)
I was also pleased to see that the "NASC is setting up an internet page through the US Sentencing Commission for individual states to submit information, documents, recommendations, proposed legislation or reports related to their state's response to Blakely." Here is a link to that page, which currently has only limited information from Kansas, Michigan and Pennsylvania, but valuably seeks "to have each state provide information so it can serve as a clearinghouse of information on the states' responses."
Finally, according to my Blakely calender, at least one state sentencing commission is going to be speaking publicly soon: this Monday, I believe, marks the deadline that Minnesota Governor Tim Pawlenty set for a short-term report from the Minnesota Sentencing Guidelines Commissionon concerning his state's sentencing procedures in the wake of Blakely (background here). I am very eager to see what this well-regarded Commission is going to say (and perhaps not say) about Blakely.
July 30, 2004 at 05:46 PM
North Carolina
The Blakely earthquake hits North Carolina
In what I believe are the first two cases from the North Carolina state courts dealing with Blakely, today in State v. Speight, 2004 WL 1960082, (N.C. App. Sept. 07, 2004) and State v. Allen, 2004 WL 1960333 (N.C. App. Sept. 07, 2004), two different appellate panels found, without much hesitation, that Blakely rendered unconstitutional aspects of North Carolina's state sentencing system.
In Speight, the court minced no words in identifying the Blakely problem and in rejecting the government's argument that a Blakely error should be deemed harmless:
Defendant received two consecutive aggravated sentences of a minimum of twenty and a maximum of twenty-four months for involuntary manslaughter and a consecutive aggravated sentence of twelve months for impaired driving. As the jury did not decide the aggravating factors considered by the trial court, defendant's Sixth Amendment right to a trial by jury was violated. See Blakely.
Nonetheless, the State argues that under a harmless error analysis, defendant's sentences should be upheld. However, as explained in State v. Allen, "[o]ur Supreme Court has definitively stated that when 'the [trial] judge [has] erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing.'" Accordingly, we grant defendant's motion for appropriate relief and remand this case to the trial court for resentencing consistent with the holding in Blakely.
In Allen, the court more fully discusses how the provision for imposing "aggravated sentences" in North Carolina "appears substantially similar to the portion of Washington's criminal sentencing statute analyzed in Blakely." Interestingly, according to the Allen court, state lawyers in North Carolina have been conceding after Blakely that aggravated range sentencings constitute a violation of a defendant's constitutional rights. (This apparently proper concession of Blakely's reach by North Carolina lawyers of course stands in sharp contrast to what we are seeing from federal lawyers in the federal courts, as discussed here and here).
Filling out its rejection of the state's harmless error claims, the Allen court explains:
Our Supreme Court has definitively stated that when "the [trial] judge [has] erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing." State v. Ahearn, 307 N.C. 584, 602 (1983). In the case sub judice, it is undisputed that the trial judge unilaterally found the existence of an aggravating factor and, thereupon, sentenced defendant in the aggravated range. The State's argument, when viewed in light of the ruling articulated in Ahearn, must fail, as this Court should properly remand the case for resentencing. Accordingly, we grant defendant's motion for appropriate relief and remand this case to the trial court for resentencing consistent with the holding in Blakely.
September 7, 2004 at 03:22 PM
Word on the Street in NC
Post from Ron:
I spoke earlier this week with the prosecutors in an urban office in North Carolina about Blakely, and their comments fit in fascinating ways with the observations of the Minnesota Sentencing Commission (background here). As in Minnesota, the basic structure seems to be holding water, and the number of affected cases is pretty small. Basically, these prosecutors were not terribly worried about Blakely in the short run. Although the case will almost surely prevent all "aggravated range" sentences (the North Carolina equivalent of upward departures), those were only 7% of the sentences imposed last year. For high-volume crimes like drugs or property offenses, it is simply not worth the effort right now to move from the presumptive range (say, 16 to 20 months) up to the aggravated range (say, 20 to 24 months). Volume, combined with the limited benefits of upward adjustments, convince most prosecutors not to bother with new techniques to obtain jury findings.
That being said, there are two settings that might prove more worrisome for these prosecutors in the future. First, they anticipate filing superseding indictments and perhaps asking for bifurcated jury proceedings in homicides and serious violents crimes, because the potential upward adjustments to sentences are much larger here. And second (consistent with comments from Minnesota), they believe that the "custody status" point (see background memo by Robert Farb linked here) will be important to them in a fairly large number of cases, where the extra point can bump a defendant into the next highest criminal history category.
August 8, 2004 at 12:21 AM
Tracking Blakely developments in the states
According to this story, the Blakely earthquake had its first aftershock in a Minnesota state court on Tuesday when the Minnesota Court of Appeals overturned a sex offender's 40-year prison sentence. Apparently, the state guidelines called for a sentence of 57 months, but the trial judge had imposed a 40-year sentence based on the conclusion that the defendant was a patterned sex offender.
Helpfully, for those interested in tracking Blakely's impact and the developments in the state courts, the National Center for State Courts has already produced this very helpful report entited "Blakely v. Washington: Implications for State Courts". This report not only is rich with analysis of what Blakely could mean for state sentencing systems and potential responses, but it also includes a terrific appendix detailing "Sentencing Practices and Other Relevant Policies in the States." Among the many interesting analytical points in the memo is the important observation that "probation and parole can be affected by Blakely under certain circumstances."
In addition, there are a number of valuable state sentencing links within the NCSC report, including a link to this memo by Robert L. Farb of The Institute of Government at the University of North Carolina, entitled "Blakely v. Washington and Its Impact on North Carolina’s Sentencing Laws."
July 21, 2004 at 02:28 AM
North Dakota
Blakely back in the news
The coming week should have plenty of Blakely news with the Solicitor General's office and the US Sentencing Commission both due to submit briefs in the Booker and Fanfan cases on Wednesday. In the meantime, the newspapers are again finding other noteworthy Blakely stories.
From Tennessee articles here and here report on the recommendation made by the Task Force appointed by Governor Phil Bredesen that a special session of the Tennessee General Assembly is not needed to deal with Blakely. Background on the Tennessee Task Force can be found here and here, and this recent news article thoughtfully explains why the "Task force on sentencing has its work cut out for it." This article also details the variations in Tennessee sentencing practices in the wake of Blakely:
[Cleveland attorney James F.] Logan said some judges are ignoring Blakely. Others, he said, insist it mandates only minimum sentences, ignoring even prior convictions that the nation's high court clearly said could be used to boost sentences. At least two judges are now holding separate sentencing hearings, allowing juries to decide which factors a judge can use, if any, to ratchet up a criminal's sentence. They are doing so even though there is no law on the books that allows that process, known as a bifurcated hearing, in any case other than those in which the death penalty or life without parole is sought as punishment.
In other state news, this article discusses a peculiar ruling from a Michigan state judge who apparently declared Michigan's state sentencing guidelines unconstitutional in order to be able to sentence a child molester to a much longer prison sentence than the guidelines provided.
From the federal desk come two Blakely stories out of the Eighth Circuit. This article discusses a factually and legally interesting case involving a former Kansas City pharmacist who received a 30-year prison term for diluting chemotherapy drugs. And this article discusses a North Dakota perjury case in which all parties agreed to put sentencing on hold until November 10 with the hope that federal sentencing law will be clearer at that time.
August 28, 2004 at 09:20 AM
Ohio
Still more interesting state decisions
Though the federal courts have, perhaps quite justifiably, issued relatively few Blakely decisions as the Booker and Fanfan arguments approach, the state courts have to keep sorting out Blakely without any reassurance that helpful guidance will be coming from the Supreme Court anytime soon. (Indeed, as I suggested here, the rulings in Booker and Fanfan could actually make life harder, not easier, for the states). And the state courts continue to issue interesting Blakely decisions.
For example, in State v. Fell, 2004 Ariz. App. LEXIS 137 (Ariz. App. Sept. 23, 2004), the court considered whether a trial court could impose a natural life prison term on a first-degree murder charge without the state having to prove to a jury beyond a reasonable doubt the aggravating circumstances the state previously had alleged when seeking the death penalty. The court ultimately concluded that Blakely did not require "a jury to find beyond a reasonable doubt that certain aggravating circumstances exist before a trial judge in Arizona may sentence a defendant convicted of first-degree murder to a natural life prison term rather than life with the possibility of parole."
In Commonwealth v. Junta, 2004 Mass. App. LEXIS 1080 (Mass. App. Sept. 23, 2004), the court dropped a footnote to explain: "The recent United States Supreme Court decision in Blakely has no application here, as the Massachusetts sentencing scheme provides for indeterminate sentences."
Meanwhile, in Blakely bellweather Ohio, the court in State v. Eckstein, 2004 Ohio App. LEXIS 4594 (Ohio App. 1st Dist. Sept. 24, 2004), the court avoids Blakely by asserting that statutory "findings that must be specified prior to a departure from the minimum prison term are discretionary factors to be used by the trial court in determining what sentence to impose within the authorized range."
September 25, 2004 at 05:30 PM
Insights about Blakely’s impact in Ohio
As noted here and here, Ohio appellate courts have expressed a variety of views about the meaning and application of Blakely in Ohio. Helpfully (or perhaps not too helpfully), attorneys with the Ohio Sentencing Commission have issued an entertaining and informative, but not in any way definitive, Blakely memo. The memo, which can be accessed here, effectively canvasses different ways in which Blakely might impact Ohio state sentencing law. But, as the introductory snippets below highlight, the memo hardly provides a conclusive assessment:
This memo discusses the Blakely case and two plausible — dramatically different — interpretations of how it might apply to judicial fact-finding under Ohio’s current criminal sentencing structure.
On June 24, 2004, the United States Supreme Court released its decision in Blakely, sending shudders through many state houses and courts. The High Court held that facts considered by a judge in criminal sentencing — other than criminal history — must be authorized by the jury’s verdict. Scholarly observers asked, “What the heck does that mean?” How courts answer the question could mean that Ohio’s criminal sentencing structure is basically sound or that critical changes are needed....
Perhaps capturing a fairly universal view on Blakely, in the midst of the memo's analysis there is this astute comment: "If you are confused by Blakely and its competing interpretations, you’re human."
September 22, 2004 at 11:45 AM
Ohio v. Scheer: a Rosetta Stone for sentencing reform?
I have previously discussed at length the fascinating challenges of figuring out what Blakely's formal rule might mean for Ohio's functional sentencing laws (see posts here and here and here). Yesterday, I found an intermediate Ohio appellate court decision, Ohio v. Scheer, 2004 WL 2008628 (Ohio App. 4 Dist. Sept. 1, 2004), which is fascinating for both Blakely and non-Blakely reasons. (Strangely, the decision is dated September 1, but only first appeared on-line yesterday.)
Though a fairly run-of-the-mill case, I think Scheer could be seen as a Rosetta Stone of sentencing reform. So many insights might be drawn from the case’s facts and the court’s ruling, careful study of the decision could, like the famed stone of Rosetta which helped scholars better understand the meaning of Egyptian hieroglyphics (background here and here), help scholars better understand the dynamics and challenges of modern sentencing reform. Let me try to explain.
Scheer involved appeal of a “sentence to the maximum, consecutive term of twelve months imprisonment for each of two counts of passing bad checks.” Those familiar with Ohio law already can see how the case raises at least two Blakely issues, since a sentencing judge in Ohio must make certina findings before imposing a maximum term and also before imposing consecutive sentences. Adding to the intrigue, Scheer’s two convictions followed a plea bargain in which “the Statedismissed the remaining two counts of the indictment [which alleged more serious felonies] and agreed to recommend a sentence of community control sanctions if Scheer made full restitution to the victim in the amount of $89,698.81 prior to the sentencing hearing.” If Scheer did not make restitution prior to sentencing, the State recommended six months on each count and a court order of restitution. The case thus also raises interesting questions about the impact of prosecutorial discretion and the use of alternatives to incarceration.
The story of Scheer goes on “Scheer failed to appear at the original sentencing hearing, and was subsequently arrested on a warrant issued by the court. At the time of the sentencing hearing, Scheer had not made restitution.” The court then – after making lengthy on-the-record statements referencing the seriousness of the dismissed counts, that the “Defendant has a lengthy and extensive criminal history … and shows no genuine remorse concerning his actions herein,” that the “victim in this case has suffered substantial economic harm,” and the “purposes and principles under 2929.11 of the Ohio Revised Code,” – concluded that Scheer “is not amenable to available community control sanctions.” Based on all these considerations, the trial court thus “sentenced Sheer to twelve months incarceration on each count, the maximum sentence for a fifth degree felony, and ordered that the sentences run consecutively. The court also ordered Scheer to make full restitution to the victim.”
The defendant in Scheer objected to some of the sentencing court's findings regarding his criminal history and lack of remorse, and thus the case raises a range of consequential Blakely procedural issues. And, of course, the judge's sentencing decision implicates broader substantive questions about consideration of "dismissed" conduct, criminal history, victim harms, lack of remorse, and "purposes and principles."
In an extremely thoughtful and yet still opaque ruling, the appeals court in Scheer rejects the defendant's Blakely claim, though without addressing every possible Blakely issue. The court also rejects the substance of the defendant's other legal and factual challenges to the sentencing court's decision. However the appeals court still reverses and remands Scheer's sentence with a ruling that raises questions about the importance of written sentencing findings and appellate review. According to the appeals court, the sentencing court's findings were not sufficiently linked to its final sentencing determination:
Although the court made the requisite findings, it did not state the rationale or reasons that support those findings for either the maximum or consecutive sentences. The court made certain factual findings when it determined that community control sanctions were inappropriate and imposed a prison sentence; however, the court never indicated that it was relying on some or all of these findings in imposing maximum or consecutive sentences.... While we recognize that it might seem we are elevating form over substance as the court's reasons for imposing the sentences might be gleaned from the transcript as a whole, the Supreme Court of Ohio has indicated that it will require strict compliance with the provisions of the sentencing statutes. Since the trial court did not specify which of its findings it relied upon in imposing maximum and consecutive sentences, we must reverse and remand this matter to the trial court for further action consistent with this opinion.
September 11, 2004 at 03:42 PM
Another interesting Ohio case
Yesterday in State v. Richards, 2004 Ohio 4633, 2004 Ohio App. LEXIS 4204 (Ohio App. Sept. 2, 2004), Judge James Sweeney in a dissent continued to spotlight Blakely issues in the application of Ohio's state sentencing laws. Recall that, as detailed here, Judge Sweeney and his colleague Judge Michael Corrigan had an interesting debate over the applicability and reach of Blakely in Ohio last week in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004).
In Richards Judge Sweeney was simply calling for the defendant's sentence to be remanded for consideration of Blakely issues, but the case is interesting and noteworthy because it involved the imposition of a three-year sentence when the offense of conviction provided a statutory range of between one and five years. But, as Judge Sweeney correctly notes, under Ohio's statutory sentencing laws "the court could only deviate from the minimum sentence by making judicial findings beyond those either determined by a jury or stipulated to by the defendant." Specifically, in this case, the trial court imposed a sentence of three years rather than one year based on a finding that the "the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public." Ohio Revised Code § 2929.14(B).
I have discussed at length here how Ohio's laws governing the imposition of maximum sentences raise deep jurisprudential issues about the meaning and reach of Blakely. Judge Sweeney's dissenting opinion in Richards expressly highlights — and the majority's opinion in Richards implicitly rejects — that the same tough Blakely issues arise whenever an Ohio judge imposes a sentence above the statutory minimum.
Though I do not think these issues have yet come before the Ohio Supreme Court, it is only a matter of time before Buckeye Justices will need to start grappling with Blakely's meaning for Buckeye justice.
September 3, 2004 at 07:18 AM
Formalism meets functionality: An Ohio case study
Many have previously noted the formalism in the Blakely/Apprendi rule, often while highlighting ways legislatures might evade the rule's strictures. (Consider this commentary on Blakely by Professor Sherry Colb and recall that Justice O'Connor's dissent in Apprendi stressed these concerns.) Though only time will tell if we will see legislative efforts to evade the Blakely rule, in the meantime Blakely's formalism will create a host of challenging questions (headaches?) for functional sentencing law.
Indeed, as I reflect on modern sentencing reforms, I have come to think that Blakely is so consequential and also so confusing because functionality, not formalism, is the hallmark of many facets of guideline sentencing. For example, as noted in this US Sentencing Commission discussion paper, the controversial "relevant conduct" rules in the federal system were devised as a functional solution to the dilemmas of both real-offense and charge-offense sentencing. More broadly, judges have routinely been placed at the center of guideline sentencing systems because judges seem functionally well suited to make the many nuanced fact and value judgments that are implicated in sentencing decisions. But now, says the Blakely court, regardless of who might be the most functional fact-finder, the Sixth Amendment formally demands that any fact (other than a prior conviction) which can increase a defendant's effective maximum sentence must be found by a jury or admitted by the defendant.
As I reviewed the very interesting Ohio opinions in State v. Taylor and State v. Quinones (details here), I came to appreciate how challenging it will be in Ohio to map Blakely's formalism on to Ohio's functional sentencing provisions. Ohio has an interesting structured sentencing system which avoids grids by establishing basic (and relatively broad) sentencing ranges for felonies of different degrees. Then, after setting forth these ranges, Ohio Revised Code § 2929.14 has these interesting (and functionally sensible) provisions:
(B) Except [under certain specified circumstances] the court shall impose the shortest prison term authorized for the offense ... unless (1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term [and/or] (2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others.
(C) Except [under certain specified circumstances], the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense ... only upon offenders who committed the worst forms of the offense [or] upon offenders who pose the greatest likelihood of committing future crimes....
In other words, it seems that Ohio's sentencing laws require a judge to impose the statutory minimum sentence unless he or she makes certain findings under 2929.14(B), and a judge may not impose the statutory maximum sentence unless he or she makes additional findings under 2929.14(C). In addition to being impressed with the elegant good sense of this system, I am struck by how hard it is to understand exactly what Blakely means, or might mean, for these provisions.
At first blush, because additional "findings" are required for imposing more than the minimum sentence and for imposing the maximum sentence, it would seem that Blakely is implicated every time an Ohio judge seeks to impose a sentence above the statutory minimum and/or the statutory maximum. This seems to be the instinct of the court in State v. Quinones, 2004 WL 1903250, 2004-Ohio-4485 (Ohio App. Aug. 26, 2004), which vacated and remanded an imposed maximum sentence for "resentencing in light of Blakely" after noting that a jury "did not make a finding that Quinones had committed the worst form of the offense or that he posed the greatest likelihood of recidivism, nor did he admit to either."
However, the findings required by Ohio law under 2929.14(B) and (C) do not all look like classic "factual" findings. Deciding what sentence might "demean the seriousness of the offender's conduct" or what behavior consitutes the "worst form of the offense" seems like a value judgment more than a factual finding. (Or maybe this should be called a mixed question of sentencing fact and law.) Moreover, these judgments might be made solely, or at least largely, on the basis of facts found by the jury at trial or admitted by the defendant in a plea agreement. Thus, upon reflection I can see some merit in Judge Corrigan's suggestion in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004) (details here), that these provision of Ohio law might be able to skate around Blakely.
Any additional thoughts from Ohioans out there (who I know are reading based on this lengthy and insightful comment)?
August 28, 2004 at 10:00 PM
Blakely’s impact in Ohio
As noted here, yesterday's Ohio appellate court ruling in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004), is noteworthy and interesting for non-Blakely reasons. But it was the Blakely talk in the separate opinions of Judge James Sweeney and Judge Michael Corrigan that first caught my eye. Here are some highlights.
Judge Sweeney begins his concurring opinion in Taylor by noting that he is writing separately "to explain my position as to the resolution of the fourth assignment of error," which raised Blakely issues. Then, after reviewing the Blakely case, he explains:
In this case, the court could only impose the maximum penalty by making specific judicial findings beyond those either determined by a jury or stipulated to by the defendant. [FN1] Ohio law simply does not allow the trial court to impose maximum sentences (or certain other aspects of sentencing) in its discretion. Maximum sentences, consecutive sentences, and certain other sentences are reserved for offenders under certain and statutorily specified circumstances. Accordingly, we are required to review sentences de novo and not under the abuse of discretion standard. Thus, the maximum sentence is not within the "statutory range" of sentences that a trial court may impose in its sole discretion. Consequently, I believe an argument can be made that Ohio's sentencing law, in some respects and applications, is susceptible to the same constitutional violations that the U.S. Supreme Court discussed in Blakely.
FN1. The specific judicial findings being either that the offender committed the worst form of the offense or that he posed the greatest likelihood of committing future crimes. R.C. 2929.14(C). Although R.C. 2929.14(C) further allows for the imposition of maximum sentences "upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section" that portion of the statute is not applicable in this case. I do not believe that Blakely affects the trial court's ability to consider other facts relative to sentencing, including the offender's age and criminal record among other factors contained in R.C. 2929.12. Nonetheless, the law does not allow the court to impose the maximum sentence based upon such facts in the absence of the findings required by R.C. 2929.14(C).
These statements alone make the Taylor decision quite interesing. But then Judge Michael Corrigan, concurring in judgment only in part and dissenting in part, gets his say. To begin, Judge Corrigan disputes the majority's (non-Blakely) holding, noted here, by asserting that the sentencing court properly "found that Taylor posed the greatest likelihood of reoffending, and it gave reasons in support of that finding based on Taylor's extensive criminal record, his age (22 years-old), and lack of remorse" justified a maximum sentence under Ohio law. He then turns to Blakely, explaining that though he is "loathe to make broad pronouncements about Blakely's applicability to the Ohio sentencing statutes, the concurring opinion demonstrates that the issue is now joined." Consequently, Judge Corrigan weighs in with these "initial thoughts":
For the most part, Blakely has no applicability to Ohio sentencing statutes. This is because Ohio uses definite sentencing within minimum and maximum ranges for particular classes of felonies as opposed to guidelines used in the state of Washington which set maximum ranges within particular types of offenses in a class of felonies. For example, in Ohio a first degree felony is punishable by three, four, five, six, seven, eight, nine or ten years in prison. Unlike Washington, Ohio's sentencing statutes do not prescribe a prison term based on a point system relating to the offender's conduct. The Ohio trial judge has the discretion to sentence anywhere within the range, subject to statutory findings for imposing the maximum sentence....
To the extent that Ohio uses sentence enhancements, I tend to believe Blakely is not a problem. Nearly all sentence enhancements used in Ohio are charged in the indictment; for example, gun specifications, repeat violent offender or major drug offender specifications. That being the case, the offender would either plead guilty to the specification or the jury would make a factual finding on the specification. And it bears noting that sexual predator issues do not involve "punishment" for purposes of double jeopardy, so hearings on the predator classification would not be an issue.
Likewise, Blakely should not be an issue for consecutive sentencing. The federal courts have consistently held that the imposition of consecutive sentences does not raise issues under the Sixth Amendment as long as the individual sentence for each count does not exceed the maximum....
As for the findings required to impose the maximum sentence in a given case, those findings do not entail additional fact-finding in the sense that would implicate Blakely.... A finding that the offender committed the worst form of the offense would be based purely on the facts adduced at trial or pleaded to in the indictment. Recidivism factors like prior offenses need not be established by the jury, as the Supreme Court has specifically stated that prior convictions are not subject to the jury trial rule (there being obvious Fifth Amendment problems with the use of prior convictions when the accused does not testify).
Consequently, I believe the concurring opinion's statement that "the court could only impose the maximum sentence by making judicial findings beyond those either determined or stipulated to by the defendant" to be only partially correct. As Blakely makes clear, the sentencing court may still rule on those facts that are deemed important to the exercise of sentencing discretion. Sometimes, those facts do not present themselves until sentencing; for example, the vindictive offender who verbally or physically assaults the court during sentencing may show a lack of remorse or that he is a danger to the public. Those are factors that may be considered when imposing the maximum sentence, and they do not have to be determined by a jury. Other admitted factors, like an offender's age, may be stipulated.
The offender's age, extensive criminal record and lack of remorse as shown in this case are demonstrable facts that the judge could validly consider without violating Blakely. I would therefore find that the court did not err by imposing the maximum sentence.
Whew... I sure am glad that Judge Corrigan is "loathe to make broad pronouncements about Blakely's applicability to the Ohio sentencing statutes" or else I might have run out of room on this blog for his "initial thoughts."
I hope to post more about Blakely and my home state when I have time this weekend to fully process Judge Corrigan's interesting (and debatable) "initial thoughts" about Blakely's impact in Ohio. Also relevant to this discussion will be another decision from the same Ohio appellate court, State v. Quinones, 2004 WL 1903250, 2004-Ohio-4485 (Ohio App. Aug. 26, 2004) which was also handed down yesterday.
August 27, 2004 at 02:42 PM
Oregon
Juvenile convictions and the “prior conviction” exception
Thanks to a fast hotel connection (and funny travel sleep patterns), I am on-line and have time to post about an interesting recent Oregon state case, State v. Riley, 2004 WL 2108228 (Or. App. Sept. 22, 2004), which explores the scope of the Apprendi/Blakely "prior conviction" exception. In Riley, the specific issue concerned the use of "a juvenile adjudication in the calculation of [Riley's] criminal history score, resulting in a longer sentence than he would have received if the adjudication had not been used."
I have noted before here and here that the scope and application of the "prior conviction" exception to the Apprendi/Blakely rule will need clarification before long. The Riley decision details that there is already a federal circuit split on the specific issue of whether a juvenile adjudication is "the functional equivalent of a 'prior conviction'" for purposes of Apprendi, and the Riley court actually uses the fact of this legal disagreement to conclude that "the trial court's use of defendant's juvenile adjudication in calculating his sentence was not obviously and indisputably error."
The legal debate over juvenile adjudications within the "prior conviction" exception is fascinating for a number of reasons. First, of course, as noted here and here, the very exception itself is theoretically shaky. Second, because juveniles are not afforded the right to a jury trial, juvenile proceedings are not subject to procedures which may give adult prior convictions the added reliability justifying an exception to the Apprendi/Blakely rule. Third, the court split on this issue is not just between federal circuits, compare US v. Smalley, 294 F.3d 1030 (8th Cir. 2002), with US v. Tighe, 266 F.3d 1187 (9th Cir. 2001), but it also encompasses major state court rulings. See State v. Brown, 2004 WL 1490192 (La. July 06, 2004).
September 24, 2004 at 02:24 AM
Major Blakely ruling in Oregon
I previously noted here a newspaper article in which a state defense lawyer called Blakely's implications for Oregon state sentencing "absolutely enormous." Showing yet again how insightful defense lawyers can be, today in State v. Sawatzky, No. 0003-32189 (Or. Ct. App. Sept. 8, 2004), an Oregon Court of Appeals concluded that under its state sentencing laws "upward departure sentences violate the Sixth Amendment to the United States Constitution under the rationale set forth in Blakely."
Sawatzky is a great read in part because it provides a fine summary of Oregon's sentencing guidelines scheme and in part because it articulates the holding in Blakely in this interesting way:
Blakely makes it clear ... that Sixth Amendment analysis under Apprendi is not dependent on legislative intent. That is, the Court did not view as relevant that the Washington legislature, in enacting the sentencing guidelines, intended that courts rather than juries would act as finders of facts that justify "exceptional sentences," even though the Washington guidelines, like the Oregon guidelines, leave no doubt that that was the legislative intent. The Court, in fact, rejected the notion that legislative labeling of "elements" to be found by a jury and "sentencing factors" to be found by a judge could provide the necessary distinction required by the Sixth Amendment....
The Court has made clear in Blakely that a "statutory maximum" sentence for purposes of the Sixth Amendment is not something that, by mere legislative directive, can encompass a sentence enhancement that is based solely on judicial factfinding.
September 8, 2004 at 04:34 PM
Dollars and Sentencing
Many readers likely know that the paths of federal and state sentencing reforms have diverged in part because of economics. Even though the federal corrections system is the biggest in the country, state expenditures on corrections consume a much bigger portion of states' overall budgets. Thus, as highlighted by this terrific report entitled "Changing Fortunes or Changing Attitudes?: Sentencing and Corrections Reforms in 2003" produced earlier this year by the folks at the Vera Institute's State Sentencing and Corrections Program, states struggling with the "third straight year of severe economic crisis" took a series of "steps to lessen sentences and otherwise modify sentencing and corrections policy during the 2003 legislative sessions."
This recent article discussing a planned review of state sentencing laws and practices in Oregon highlights that, when it comes to sentencing reform, the almighty dollar might still be more powerful than the almighty Blakely. Though Oregon state sentencing laws apparently have big Blakely problems (details here), the article reveals that the public debate over Oregon sentencing reforms is about sentencing costs not sentencing procedures. Here's hoping that, on the playing field of sentencing, Oregon can get its ducks in a row.
August 24, 2004 at 09:21 AM
Blakely news from Oregon
Just after complaining about slowed media coverage of Blakely earlier today, out comes this terrifically informative article in today's The Oregonian appropriately titled "Confusion reigns in federal, state courts."
The article does not break a lot of new ground in covering the federal sentencing story — though it does note that some local federal prosecutors "are reindicting some defendants in cases in which they plan to ask for longer sentences" and "have asked for juries to be impaneled to decide the sentencing in three cases." Most eye-opening, however, are these passages covering what Blakely means for state sentencing in Oregon:
In state court, Salem defense lawyer Jesse Barton, who has written manuals about the state sentencing system, said the implications for Oregon are "absolutely enormous." He said Blakely particularly affects cases in which judges determine during sentencing that the facts in a case make a defendant a "dangerous offender" — a classification that comes with a longer sentence.
It also could affect cases in which a person is convicted of multiple crimes and the judge, based on the facts in the case, hands down sentences that run consecutively instead of concurrently. Barton said he is already handling a half-dozen appeals for inmates convicted in state court. In those cases, judges added time to sentences based on the circumstances of their crimes. "There are hundreds of guys in prison right now doing unconstitutional sentences under Blakely — hundreds, maybe thousands," Barton said.
Although Blakely is not likely to have a significant impact on the most serious crimes, such as the violent person-to-person offenses that fall under Measure 11, state prosecutors said it may impact the way serious property crimes are handled.
August 17, 2004 at 01:29 PM
Pennsylvania
Blakely’s (lack of) impact in Pennsylvania
Sylvester Stallone through the character Rocky Balboa taught us that Pennsylvanians know how to take a punch. Additional evidence can be found in this op-ed about the status of Pennsylvania's guidelines in the wake of Blakely. The piece is co-authored by Steven L. Chanenson, Villanova law professor, Federal Sentencing Reporter editor, and member of the Pennsylvania Commission on Sentencing, and State Rep. Frank Dermody, D-Oakmont and chairman of the Pennsylvania Commission on Sentencing. It explains:
[The] U.S. Supreme Court delivered a legal haymaker that has sent the criminal sentencing world reeling.... Various commentators have warned that the Blakely decision will call into question thousands of criminal sentences.... Although Blakely packs the punch of a heavyweight champ for the federal system and many state sentencing systems, it barely laid a glove on Pennsylvania's guidelines....
[Pennsylvania's] guidelines limit the judge's discretion only concerning the minimum sentence. Pennsylvania's guidelines say nothing about the maximum sentence, which can be as high as the statutory maximum. Pennsylvania judges, unlike federal judges, are not required to find facts in order to increase a defendant's maximum sentence. So the Pennsylvania system provides needed sentencing guidance while largely avoiding the problems the Supreme Court discussed....
While the Supreme Court has left some criminal justice systems dazed and their sentencing guidelines in danger of collapse, the Pennsylvania guidelines remain standing.
June 30, 2004 at 10:47 AM
South Carolina
Another possible Blakely front and great dicta
Though not formally a Blakely case, the South Carolina Supreme Court in a decision last week was apparently influenced by Blakely when considering an intricate issue of appellate procedure. In State v. Brown, 2004 WL 1948696 (S.C. Aug. 30, 2004), the Court was considering whether and when an appellate court, after reversing a conviction due to lack of evidence on one element of the offense, should be able to remand the case for entry of judgment and sentencing on a lesser included offense. The Brown court provides an extended and quite interesting discussion of the appropriateness of so-called "sentencing remands," and it notes along the way that "[n]umerous state and federal courts have approved of the practice of a sentencing remand in appropriate circumstances."
The court in Brown ultimately concludes that when a conviction is reversed due to insufficient evidence, a court should consider remanding a case for sentencing on a lesser included offense only in very limited circumstances, and along the way the court cites Apprendi, Ring, and Blakely in support of its ruling. In so doing, the court drops this choice footnote:
We recognize the vigorous debate, as expressed in Apprendi, Ring, and Blakely, between those justices who believe our people's traditional belief in right of trial by jury is in perilous decline due to the accelerating propensity of both state and federal legislatures to adopt 'sentencing factors' determined by judges that increase the punishment beyond what is authorized by the jury's verdict, Ring, 536 U.S. at 611- 612 (Scalia, J., concurring), and those who believe Apprendi and its progeny portend disastrous practical consequences for state and federal sentencing guideline schemes developed during the past two decades through the collective experience and wisdom of the judicial, legislative, and executive branches of government. Blakely, 124 S.Ct. at 2543-2561 (O'Connor, Kennedy, and Breyer, JJ., dissenting separately). The present view of the majority of the Supreme Court regarding the crucial role of the jury in determining facts relating to elements of the crime and facts which may result in increased punishment, other than the fact of a prior conviction, undoubtedly lends support to our resolution of this case.
September 4, 2004 at 12:39 AM
Tennessee
Interesting state Blakely news
Though the federal sentencing story will take center stage later today when the respondents and amici file briefs in Booker and Fanfan, today's papers have more interesting news on Blakely in the states. From Maine, this article details that the Maine Supreme Court later this week will hear additional argument in two pending cases in order to examine the impact of Blakely.
From Tennessee, this article reports on the interesting and challenging work of the Governor's Task Force (previously discussed here and here) which was assigned the task of devising an effective response to Blakely for Tennessee. In addition, this editorial urges a set of responses to Blakely for Tennessee and federal sentencing.
September 21, 2004 at 07:37 AM
Big Blakely rulings from the states
Federal courts have been relatively quiet on the Blakely front this week (perhaps because, as suggested here, federal judges are so busy sorting through piles of clerkship applications). But the state courts have been keeping Blakely busy; at least three consequential ruling from courts in California, Minnesota and Tennessee appeared on-line today:
From California, the court in People v. George, 2004 WL 2051167 (Cal. App. 4 Dist. Sept. 15, 2004), held that Blakely precluded the imposition of an upper term sentence, and rejected the government's claims that the defendant has waived the issue and that any Blakely error was harmless. Here's some key language:
[B]ecause Blakely was decided after George's sentencing, George cannot be said to have knowingly and intelligently waived his right to a jury trial....
Under California's determinate sentencing law, where a penal statute provides for three possible prison terms for a particular offense, the court is required to impose the middle term unless it finds, by a preponderance of the evidence, that the circumstances in aggravation outweigh the circumstances in mitigation. The Attorney General argues that the imposition of an upper term sentence under the California determinate sentencing scheme is not the same as the imposition of a penalty beyond the standard range and thus does not implicate Blakely. The attempted distinction, however, is one without a difference. Although an upper term is a "statutory maximum" penalty in the sense that it is the highest sentence a court can impose for a particular crime, it is not necessarily the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," which is the relevant standard for purposes of applying Blakely....
Here, the trial court relied on five aggravating factors as the basis for its decision to impose the upper term, to wit, that (1) the crime was serious and involved threats of great bodily injury to the victims; (2) the crime involved planning, sophistication and professionalism; (3) the current offense was more serious than the offense underlying George's prior conviction, which was itself serious; (4) at the time George committed the current offenses, he was on felony probation; and (5) George's prior performance on probation was poor.... [W]e conclude that the trial court was constitutionally entitled to rely only on the fact that George was on probation at the time of the charged offense as a basis for imposing an upper term sentence. Because this fact arises out of the fact of a prior conviction and is so essentially analogous to the fact of a prior conviction, we conclude that constitutional considerations do not require that matter to be tried to a jury and found beyond a reasonable doubt.... Thus, in accordance with the analysis of Blakely, the trial court was not required to afford George the right to a jury trial before relying on his status as a probationer at the time of the current offense as an aggravating factor supporting the imposition of the upper term.
The Attorney General suggests that the propriety of this single factor as a basis for imposing an upper term sentence is sufficient to withstand George's constitutional challenge to the sentence.... [But] we cannot conclude that the elimination of four of the cited factors would not have made a difference in the court's sentencing decision here.... The matter is remanded for resentencing.
From Minnesota, the court in Minnesota v. Ingalls, 2004 WL 2050533 (Minn. App. Sept. 14, 2004), reserves the imposition of a "double-upward departure imposed by the district court." The court's ruling gets right to the point: "Like the sentencing departure in Blakely, the upward departure in this case is not based solely on facts reflected in a jury verdict or admitted by appellant; it is based on the district court's determination that aggravating factors were proved. Because the district court could not have considered whether basing appellant's sentence on these factors is permissible under Blakely, we remand for reconsideration of appellant's sentence in light of Blakely."
From Tennessee, the court in State v. Syler, 2004 WL 2039809 (Tenn. Crim. App. Sept. 13, 2004), explains that, though Blakely was "not raised by either party, we are constrained to address the Defendant's sentence in light of Blakely." And the impact is consequential:
The Blakely decision calls into question the validity of Tennessee's sentencing scheme, insofar as that scheme permits trial courts to increase a defendant's presumptive sentence based upon enhancement factors found by the trial judge.... The presumptive sentence for a standard offender convicted of a Class A felony is twenty years.... Here, the Defendant was sentenced to twenty-one years for each of his Class A felonies, one year above the presumptive sentence, based upon several enhancement and mitigating factors found by the trial court at the sentencing hearing....
The trial court enhanced the Defendant's sentences for the Class A felonies on the bases that the victim was "particularly vulnerable because of age or physical or mental disability," and the Defendant "abused a position of public or private trust." Tenn. Code Ann. § 40-35-114(5), (16). Neither of these enhancement factors is reflected in the jury's verdict, nor was either factor admitted by the Defendant. Pursuant to Blakely, the trial court's enhancement of the Defendant's sentences on these bases was therefore erroneous. See State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL 1607002, at *10 (Tenn.Crim.App., Knoxville, July 19, 2004) (holding that the rule in Blakely precludes application of enhancement factors (5) and (16) where they have not been submitted to the jury and have not been admitted by the defendant).
Pursuant to Blakely, the Defendant's sentences for his Class A felonies should not have been increased above the statutory presumptive sentence based upon statutory enhancement factors (5) and (16). Accordingly, we reduce the Defendant's sentences for his two Class A felonies from twenty-one years to twenty years.
September 15, 2004 at 10:06 PM
Tennessee’s functionality meets Blakely’s formalism
In this post I focused on Ohio sentencing law to highlight that Blakely's formal rule is so consequential (and confusing) because functionality, not formalism, is the hallmark of many facets of sentencing reform. Another interesting example of these dynamics emerged from Tennessee this past week in State v. Bellamy, 2004 WL 1936384 (Tenn. Crim. App. Aug. 31, 2004), where the court was addressing the state's functional presumption for "alterntive sentencing" in its sentencing laws.
The majority's opinion in Bellamy actually avoided discussing what Blakely might mean for the state presumption for an alterntive sentence, though it did helpfully explain this part of Tennessee sentencing law:
In regards to alternative sentencing, Tennessee Code Annotated section 40-35-102(5) provides as follows: "In recognition that state prison capacities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration." A defendant who does not fall within this class of offenders "and who is an especially mitigated offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary." Id. § 40-35-102(6).
Though the majority did not speak at all to how Blakely might impact the application of this provision by sentencing judges, Judge James Curtwood Witt concurring did so in this thoughtful way:
In my view, we must recognize the possibility that Blakely v. Washington, hampers a trial judge's authority to make the fact findings necessary to overcome the statutory presumption of favorable candidacy for alternative sentencing....
The defendant in the present case enjoyed the presumption of Code section 40-35-102(6), and it behooved the trial court, in imposing a sentence of confinement, to offset the presumption by finding any, or any combination, of the factual premises listed in section 40-35-103(1), such as, the need to protect society from an offender with a long history of criminal conduct or the ineffectiveness of prior non-confinement measures. See id. § 40-35- 103(1)(A)(C) (2003). That factual determination is in addition to the facts explicitly or implicitly established by the defendant's guilty plea....
[T]he High Court in Blakely did not speak in narrow terms that targeted merely the length of an accused's sentence; rather, it spoke in broad terms of the state's power to punish: "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." Id. (quoting 1 J. Bishop, Criminal Procedure, § 87, p. 55 (2d ed. 1872) (emphasis added). Thus, Blakely seems to have impact on Tennessee's scheme of presuming favorable candidacy for alternative sentencing because whether to confine or not confine is, in a general sense, an issue of punishment....
That said, we know that the Sixth Amendment's prohibition of increasing punishment beyond the "statutory maximum" based upon an additional judge-made finding does not apply to "the fact of a prior conviction." In the present case, the defendant's record of prior convictions is substantial. Although the pertinent factual premise for overcoming the presumption of favorable candidacy for alternative sentencing addresses prior "history of criminal conduct," a standard that does not necessarily limit consideration to conduct that resulted in convictions, the defendant does have an extensive record of prior convictions. For that reason, I believe that the trial judge could have properly based his confinement order on the record of prior convictions, and even if Blakely does apply to Code section 40-35-102(6)'s presumption, the court's use of sentencing factors other than prior criminal convictions would be harmless beyond a reasonable doubt.
September 4, 2004 at 01:14 PM
Blakely back in the news
The coming week should have plenty of Blakely news with the Solicitor General's office and the US Sentencing Commission both due to submit briefs in the Booker and Fanfan cases on Wednesday. In the meantime, the newspapers are again finding other noteworthy Blakely stories.
From Tennessee articles here and here report on the recommendation made by the Task Force appointed by Governor Phil Bredesen that a special session of the Tennessee General Assembly is not needed to deal with Blakely. Background on the Tennessee Task Force can be found here and here, and this recent news article thoughtfully explains why the "Task force on sentencing has its work cut out for it." This article also details the variations in Tennessee sentencing practices in the wake of Blakely:
[Cleveland attorney James F.] Logan said some judges are ignoring Blakely. Others, he said, insist it mandates only minimum sentences, ignoring even prior convictions that the nation's high court clearly said could be used to boost sentences. At least two judges are now holding separate sentencing hearings, allowing juries to decide which factors a judge can use, if any, to ratchet up a criminal's sentence. They are doing so even though there is no law on the books that allows that process, known as a bifurcated hearing, in any case other than those in which the death penalty or life without parole is sought as punishment.
In other state news, this article discusses a peculiar ruling from a Michigan state judge who apparently declared Michigan's state sentencing guidelines unconstitutional in order to be able to sentence a child molester to a much longer prison sentence than the guidelines provided.
From the federal desk come two Blakely stories out of the Eighth Circuit. This article discusses a factually and legally interesting case involving a former Kansas City pharmacist who received a 30-year prison term for diluting chemotherapy drugs. And this article discusses a North Dakota perjury case in which all parties agreed to put sentencing on hold until November 10 with the hope that federal sentencing law will be clearer at that time.
August 28, 2004 at 09:20 AM
Grand Ole Blakely
As noted previously here and here, the state so rightfully proud of its Grand Ole Opry should also be proud of its work to date on Blakely. And today I was pointed to this link, where Tennessee's Attorney General provides a very thoughtful — though perhaps a bit biased — set of opinions concerning the "Impact of Blakely v. Washington on Tennessee’s Sentencing Scheme."
The analysis section of this official AG Opinion (No. 04-131 and dated August 13, 2004) contains many insights about the possible reach of Blakely and the structure of Tennessee's sentencing laws. Though there are too many highlights to summarize, here's how the Opinion starts:
QUESTION
In light of Blakely v. Washington, does Tennessee’s sentencing scheme, Tenn. Code Ann. § 40-35-101, et seq., violate a defendant’s Sixth Amendment right to trial by jury as applied to the States via the Due Process Clause of the Fourteenth Amendment?
OPINION
Yes, in part. Those portions of Tenn. Code Ann. §40-35-101, et seq., that allow a trial court to enhance a defendant’s sentence above the presumptive minimum through application of enhancement factors — other than the fact of a prior conviction or any factor admitted by the defendant — are constitutionally invalid. However, as more fully explained below, significant features of Tennessee’s sentencing scheme remain unaffected by Blakely.
August 18, 2004 at 11:04 AM
I’m going to Graceland…
Proving that Tennessee deserves the nickname "The Volunteer State," a friend from Tennessee was kind enough to volunteer some helpful information concerning that state's reaction to Blakely. As noted before, Tennessee's Governor has already created a Task Force on the Use of Enhancement Factors in Criminal Sentencing (background here), and I was pleased to learn that the Task Force seems to have a balanced membership, including many judges, prosecutors and defense attorneys (and three very well-regarded law professors as ex officio members). It also seems the Task Force has set a robust schedule and plans to have a report or a proposal before the end of this year.
The history of sentencing reform is Tennessee is quite dynamic, and the pre-Blakely story is well-told here. In 1985, the legislature created the Tennessee Sentencing Commission which helped produce the Tennessee Sentencing Reform Act. That Act became effective on November 1, 1989 and still governs Tennessee sentencing. But the Tennessee Sentencing Commission is no longer with us: the state's legislature abolished the Commission in 1995. And yet, Judge Barbara Haynes, who once served Chair of the Tennessee Sentencing Commission, is now serving a Chair of the Governor's Task Force and apparently others involve with the Task Force formerly were involved with the Tennessee Sentencing Commission.
Even before the Task Force gets started in earnest, official and unofficial voices are sharing wisdom about what Blakely means for Tennessee sentencing. Specifically, the Office of the Tennessee Attorney General has issued a fascinating four-page memorandum presenting "initial impressions ... as to Blakely's effects on Tennessee's statutory sentencing scheme." The memo speaks to a number of universally important topics, such as authority for utilizing sentencing juries, the impact of Blakely on consecutive sentencing, and retroactivity. Covering similar ground in a fuller way from a different perspective, attorney David L. Raybin has completed an article to be published the August 2004 issue of the Tennessee Bar Journal entitled "What is the Impact of Blakely v. Washington on Sentencing in Tennessee." I am pleased to be able to provide access to both these documents here:
Download tenn_ag_advice_to_das_7.8.08.pdf
Download what_is_the_impact_of_blakely_v. Washington on Sentencing in Tennessee.pdf
Now I wonder what Elvis (or even Paul Simon) would think about Blakely?
July 31, 2004 at 10:05 PM
Fascinating news from Tennessee
Apparently I was on to something when I said earlier that today was going be a big day for Blakely in the states. In addition to all the developments reported earlier today, I just found this breaking news report from Tennessee:
By Executive Order, Governor Phil Bredesen today named a panel of criminal justice officials charged with making recommendations to preserve the use of enhancement factors in Tennessee’s criminal sentencing laws, in light of [Blakely]. The Governor’s Task Force on the Use of Enhancement Factors in Criminal Sentencing will determine if a special session of the General Assembly is necessary to protect the Tennessee Criminal Sentencing Reform Act called into question by the ruling and will determine what legislation, if any, might be necessary, officials said.
The newspaper article linked above is worth a read, in part because it includes the full text of the Governor's executive order. It also details the composition of the TFUEFCS (I made that acronym up myself):
The 13-member Task Force on the Use of Enhancement Factors in Criminal Sentencing will consist of the Attorney General and Reporter or his designee, the Commissioner of the Department of Correction, the Chairman of the Board of Probation and Parole, as well as one member from each House of the Legislature, to be appointed by the Speakers. Eight additional members will include at least one each of the following groups: appellate judges, criminal trial judges, general sessions court judges, district attorneys, public defenders, criminal defense lawyers and victims of crimes. [COMMENT: What?? No law professors?? Geez, we get no respect.] The Governor shall appoint a Chair from among the members, who will appoint five (5) ex-officio, non-voting, members to serve in an advisory capacity. The Task Force will report to the Governor no later than August 27 on whether a special session of the Legislature is necessary to revise the state’s sentencing laws. The group is also charged with recommending legislation even if it’s determined a special session is not necessary. In that case, the panel will have until November 15 to recommend legislation for next year’s session of the Legislature.
July 22, 2004 at 06:15 PM
More state Blakely news in Minnesota and elsewhere
After Wednesday was a huge Blakely day in the federal system, it looks like today might be dominated by state news (and particularly by northern states starting with an M). As first reported here, the Minnesota Court of Appeals issued the state's first major Blakely ruling ealier this week in the course of overturning a sex offender's 40-year prison sentence. To quote Paul Harvey, here's "the rest of the story":
In State v. Whitley, the Minnesota Court of Appeals holds that the findings of fact under Minnesota's pattern sex-offender statute need now be proved to a jury beyond a reasonable doubt. As noted in the very helpful e-mail report to me about the case:
Interestingly, the Court indicates that Apprendi and a Minnesota Supreme Court case called Grossman, and not just Blakely, dictate this result. The remand instruction is cryptic, as Minnesota has no system of sentencing juries or anything of the sort (at least not yet).
In news from states not starting with an M, this well-done article from the Knoxville News-Sentinel reports on a Tennessee decision from an intermediate appellate court which reduce a defendant's sentencing by a year in a child abuse case following Blakely.
And, Marcia Oddi over at the Indiana Law Blog has noteworthy posts here and here about the likely impact of Blakely on Indiana state sentencing.
July 22, 2004 at 02:15 PM
Coast to Coast Blakely developments in the states
In addition to the decision by the California Supreme Court to tackle Blakely in a pending appeal, Blakely issues are start to crop up in other state appellate decisions around the country. Here are two interesting examples.
Florida: In the (hard to follow) case of Sigler v. Florida, 2004 Fla. App. LEXIS 10485 (4th Dist. July 14, 2004), a Florida intermediate appellate court explained that, before Apprendi and Blakely, the "Florida Supreme Court [had] construed [Florida code] section 924.34 to authorize appellate judges to make a finding of guilt as to each element of permissive lesser included offenses in place of a jury determination. See I.T. v. State, 694 So. 2d 720 (Fla. 1997)." The Sigler court then explains its view that:
[T]hese later decisions [of Apprendi and Blakely] make it clear beyond any doubt that section 924.34 as interpreted in I.T. is contrary to the Sixth Amendment when the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element of the permissive lesser included offense. That means that as for this circumstance we are expressly holding the statute invalid under the United States Constitution.
In other words, the Sigler court is finding a Sixth Amendment limit on appellate judge fact-finding as well as sentencing judge fact-finding.
Tennessee: Meanwhile, in Tennessee v. Fuller, 2004 Tenn. Crim. App. LEXIS 626 (July 13, 2004), the court frankly asserts that the "United States Supreme Court's recent opinion in Blakely v. Washington, 2004 U.S. LEXIS 4573 (2004), calls into question the continuing validity of our current sentencing scheme." Though the Fuller court then avoids finding a Blakely problem in the case at hand, it still seems noteworthy that the Tennessee courts already see problems with its sentencing schemes in light of Blakely.
July 15, 2004 at 12:39 AM
Washington
A means for Supreme Court (re)consideration
I knew I saved my old edition of Hart and Wechsler's The Federal Courts and The Federal System for a good reason. It makes for a great little read on the certification procedure employed yesterday by the Second Circuit. In my yellowed Third Edition at pp. 1836-40, the section concludes with this choice quote from Wright et al.: "The sooner [abolition of certification] is accomplished by statutory amendment, the better."
Meanwhile, I now have word of another development that calls for pulling out the history books. Today Professor Rory Little, new counsel for the State of Washington, has told me about the filing of an "Application for Extension of Time to File a Petition for Rehearing on Behalf of the Respondent State of Washington." In other words, the State of Washington has plans to seek Rehearing of the original Blakely decision, even though the US Supreme Court apparently has not substantively granted a merits rehearing petition in nearly 50 years.
I have attached at the bottom of this post a pdf version of the petition, and here's the key part of the substantive argument:
Washington candidly recognizes that rehearing in this matter is legitimately viewed by many as unlikely. However, we believe the case merits the fullest possible attention at this juncture. This Court seems certain to soon grant merits hearings to other jurisdictions on the validity of their own sentencing regimes under Apprendi and the reasoning in Blakely.... We do not believe that the State of Washington fairly should be compelled to suffer the first blow as other jurisdictions continue to argue the implications of this Court’s closely-decided cases in this area. Rather, Washington should be permitted to participate in what will apparently be the definitive re-argument of the issues.
In dialogue with me about this effort, Rory thinks the Court should ultimately grant rehearing of Blakely itself as a matter of "fair Federalism." The idea is based on the sensible notion that, perhaps quite soon, the High Court is going to have a major "Apprendi day" in which the first principles of Apprendi will be re-examined. Says Rory: "If they are going to allow every other jurisidiction to argue that their regimes are distinguishible, why should Washington State have been made to walk the plank (so to speak) alone? Perhaps no one will change their mind. But if one did, Washington will have suffered a very unfair blow. The next arguments will NOT be simply about 'are the guidelines constitutional under Blakely.' They will inevitably and ineluctably go quickly to 'what is the bedrock constitutional theory that is operating here?' Rehearing of the case that stimulated that path is not just appropriate, but fair."
Download extension_rehearing_petition.pdf
July 13, 2004 at 04:41 PM
Blakely’s impact in the other Washington
With a big week ahead as the folks in Washington DC cogitate about how to deal with Blakely in the federal system, we should recall that it was the other Washington which got this whole Blakely ball rolling. And, proving the impact will be consequential there, too, here's an article from Washington state detailing a case of a "businessman who stole $215,000 from his ailing stepmother [who] will be released from prison about 2.5 years early" due to Blakely problems in the extraordinary sentence he originally received.
July 11, 2004 at 11:47 PM
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