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August 26, 2004

Unpublished opinions and Blakely

As many readers surely know, there is a long-standing, rich and robust debate among judges, litigants and academics about the use, status and appropriateness of unpublished opinions in the federal circuit courts. Here is a fairly recent law.com article about new developments in this debate, and here is a useful (though only partial) list of writings on the topic. I myself have had occasion to write a bit on this topic with Professor Jeffrey O. Cooper. See In Defense of Less Precedential Opinions, 60 Ohio State Law Journal 2025 (1999); see also Passive Virtues and Casual Vices in the Federal Courts of Appeals, 66 Brooklyn Law Review 685 (2001).

Yesterday's noteworthy but unpublished decision from the First Circuit (discussed here), along with the series of other like rulings, have me thinking about the unpublished opinions debate through the lens of Blakely. In this debate, it is often noted that the "unpublished" label is a misnomer and perhaps insignificant because most if not all such opinions are available through the on-line services Lexis and Westlaw. But I am given pause in this context because it seems likely that those most personally interested in Blakely developments — namely, prisoners and their families — likely do not have ready access to these (costly) on-line services.

In addition, through coverage of the Blakely world, I have come to focus on the fact that state courts also have unpublished opinion debates (examples here and here and here) and that state courts will also issue consequential unpublished opinions.

For just the latest example of a consequential unpublished opinion, a California appellate court in People v. Morrison, 2004 WL 1889488 (Cal. App. Aug. 25, 2004), comes to the contestable conclusion that Blakely posed no problems on appeal because "the defendant's high term sentence here is supported by facts found true by the jury," even though a careful reading of the case suggests the jury only found facts which might have supported the requisite finding. In addition, for reasons a bit unclear, the court in Morrison also finds "no violation of Blakely on the imposition of the consecutive sentence."

I will leave it to others to debate (perhaps in the comments) whether it may be useful or problematic that opaque Blakely decisions are officially "Nonpublished/Noncitable."

August 26, 2004 at 10:45 AM | Permalink

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Even more disturbing than those "unpublished" opinions that defendants can't access has been the practice of Ohio state courts to publish Blakely decisions on cases where those issues were never even raised, meaning that there was never a justiciable case or controversy before those courts in the first place:

On July 7, the Ohio Sentencing Commission issued a two page talking points memorandum that disavowed Blakely's application in Ohio, as long as trial judges sentenced within the minimum and maximum range (for example, 2 to 8 years on a Felony 2). As the Vera Commission Report notes, Ohio doesn't have a guideline system such as Washington has, but Ohio has statutory presumptive minimums that the a sentencing court is only supposed to deviate from if the court concludes that any of several factors are present -- which of course the judge makes, rather than the jury.

Two days later, the first "Blakely" decision was rendered by Ohio's First Appellate District (in Cincinnati), State v. Bell, 2004-Ohio-3621. In that case, Judge Mark Painter -- one of the most published judges in Ohio history -- wrote a decision reversing Bell's sentence on Ohio statutory grounds (that is, the court failed to make a required finding), but left a parting shot to the trial court on remand that Blakely doesn't apply because, of course, the seven year sentence was less than the "maximum" that he might have received. What is disturbing about this decision is that the issue was never raised by the litigants, and the court removed the case from its accelerated calendar with the apparent purpose of (1) being the first Court in Ohio to address the issue in defense of the Ohio Sentencing Commission report of two days before and (2) tying the hands of Defendant Bell so he couldn't raise the argument on remand for his new sentencing.

On July 30, Ohio's Second Appellate District (based in Dayton), released an even more disturbing decision in State v. Sour. What is particularly troubling is that Defendant's Sour's case was an Ander's Brief. On his first appeal back in 2001, the Second District remanded his case for a new sentence. On the present case, taken up again after being re-sentenced, Defendant Sour's attorney filed an Anders Brief. However, Sour's attorney failed to file a transcript of the re-sentencing hearing, and the Second District ordered that attorney to do so and re-brief the issue after reading the transcript. That attorney filed a tape of the hearing, rather than a transcript, and a second Anders' Brief. Defendant Sour then sent a letter to the court of appeals asking for appointment of a new attorney because he didn't have the expertise to file a pro se brief; the Second District issued an order treating this as his pro se brief. After several more months elapsed, with Blakely and Apprendi never having been argued, the Court issued a per curiam decision raising Blakely sua sponte, and then denied its application to Defendant Sour's case. After reading that decision, I consulted Anders v. California, which clearly states that if a reviewing court finds a potential error on a no issues brief, that court is supposed to assign new counsel to brief and argue the issue rather than simply raising and then overruling the issue.

Earlier this week, the First District revisited Blakely in a per curiam decision, State v. Crawford, 2004-Ohio-4505,which denied the Defendant's motion for reconsideration based on Blakely. The Court stated: "The United States Supreme Court did not release its decision in Blakely until two days after the oral argument of June 22, 2004, on Crawford's appeal. At no time before July 30, 2004, the date our judgment was entered affirming the trial court, did counsel for Crawford raise or seek leave to raise an assignment of error, pursuant to [Ohio] App.R.12 (A)(1)(b) and 16(A)(7), challenging the length of his sentence under the guidelines for an appeal of right set forth in R.C. 2953.08(A)." I should note that Defendant Crawford filed his motion for reconsideration on July 30, the same day that the Court issued its decision on his initial appeal of right.

Just as I was about to give up all hope that Ohio courts were even receptive to listening to Blakely arguments as appellate judges tripped over themselves in the race to shout down the motions and briefs before Defendants could even file them, the heretofore Apprendi-evasive Eight District (based in Cleveland) dropped a three headed bombshell today in Ohio v. Glass, 2004-Ohio-4495, State v. Quinones, 2004-Ohio-4485, and State v. Taylor, 2004-Ohio-4468. The fact patterns of each decision are slightly different, but each decision states basically the same language. I'll quote Taylor, at paragraph 36: "We also note the recent United States Supreme Court decision in Blakely v. Washington which states that the 'statutory maximum' is not the longest term that a defendant can receive under any circumstances, but is 'the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.' [citation omitted] The jury did not make a finding that Taylor posed the greatest likelihood of recidivism, nor did he admit such a thing. Although we take no position at this time concerning whether the 'deliberate cruelty' finding discussed in Blakely is comparable to findings under R.C. 2929.14(C), such issues can be raised on remand." The Court then vacated the sentence and remanded to the trial court.

Take a moment to reflect upon that. While the Eight Appellate District didn't exactly say that Blakely applies, it vacated the sentences of three criminal sentences and directed the trial judges to do a "Do-Over". Moreover, while Prosecutors have Blakely-evasive decisions to cite as "authority" against application of Blakely to Ohio, Defendants now have three pro-Blakely decisions to cite, giving them a for conflict among the districts basis for a writ of cert. to the Ohio Supreme Court. Most importantly, the onus is now on the Cuyahoga County Prosecutor's Office to file for review in the Ohio Supreme Court next month to contest these remands, rather than on some indigent defendant with apathetic defense counsel (see Mr. Sour, above).

As I reflect upon the implications of Blakely in Ohio, or more particularly the implications of trying to convince judges about the application of Blakely to Ohio, I am mindful of the comment made in the Blakely dissent that justice has to be wooed slowly. I am of the opinion that the most vulnerable aspect of the sentencing structure in Ohio is Post Release Control and Escape; that is, the scenario where someone serves the entire sentence ordered by the judge, and then is placed on paper with the possibility of six months or more of additional time being imposed upon violation of PRC, and then, after the Defendant fails to appear for a meeting with his Parole Officer, is jacked with both additional prison time on the old case and the new charge of Escape (a felony carrying 1 to 5 years). Clearly, the PRC time is above the "maximum" even under the most evasive pro-prosecutorial definitions I have encountered to date, and more particularly if the Defendant's constitutional right to a jury trial was violated by putting him on paper, then it seems to me that the trial court hearing the Escape charge would have to exclude testimony or documentary evidence from the Parole Authority purporting to show that the Defendant was on paper in the first place. Others have suggested that Blakely apply to Sex Offender designations and forfeiture cases, which may well be, but I believe a successful attack directed towards Escape charges will open the door to further application of Blakely in other, more disputed, scenarios.

[A word on citations: these cases are all available on line, pdf and microsoft word formats, at http://www.sconet.state.oh.us/ROD/documents/
From the drop down menu for Courts, enter "all", and then enter "Blakely" for a search term. You can also search for the three dozen cases citing to Apprendi in the same manner, but you have to use the drop down menu for date to amend it from 2004 to "All".]


Charles M. Conliff
Defense Attorney
Fairfield, Ohio

Posted by: Charles M. Conliff | Aug 27, 2004 2:17:26 PM

Sorry about all those typos. What can I say? -- I'm an underpaid defense attorney writing on a Friday afternoon after being up till 2:00 a.m. every night this week reading Blakely material on this and other websites in preparation for my first two Blakely appellate briefs due on Monday. Does that give you "sense of who is reading" your blog, Professor? Thanks for all of your efforts!

Charles Conliff

Posted by: Charles Conliff | Aug 27, 2004 2:27:27 PM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB