November 18, 2004
So many more state Blakely rulings
The noteworthy Blakely rulings from state courts continue to come in at a fast and furious pace (see here for more recent evidence). Already this week alone, we have more consequential rulings from Indiana, Ohio, New Jersey and Washington (and, of course, the obligatory weekly collection from California). Also, just on line is an important Delaware ruling from last week.
Though all of these decisions deserve fuller discussion, today the best I can reasonably do is provide summary highlights. I encourage readers to use the comments to note any exceptional features of these cases that merit spotlighting:
- In Benge v. State, 2004 Del. LEXIS 506 (Del. Nov. 12, 2004), the Delaware Supreme Court declared "Blakely does not impact Delaware's sentencing scheme because the SENTAC guidelines are voluntary and non-binding."
- In Lampitok v. State, 2004 WL 2590817 (Ind. App. Nov. 16, 2004), the court drops a footnote to give the "prior conviction" exception a broad application (INCourts provides more details here);
- In State v. Berry, 2004 WL 2580555, 2004-Ohio-6027 (Ohio App. 12 Dist. Nov. 15, 2004), the court articulates two bases on which the court claims Ohio's sentencing system completely escapes the application of Blakely;
- In State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004), the court concluded New Jersey's presumptive sentencing scheme is generally impacted by Blakely (and, again, INCourts covers the highlights here);
- In State v. Alkire, 2004 WL 2580772 (Wash. App. Div. 1, Nov 15, 2004), the court upholds a sentence based on the "prior conviction" exception (and does despite the fact the defendant's "invites this court to abandon the 'crumbling foundation' of Almendarez-Torres and the prior conviction exception").
And, for continuing coverage of the continuing stream of California cases, remember that the First District Appellate Project is here keeping up with recent major rulings, and Jonathan Soglin here notes a California published opinion that apparently breaks a little new ground.
November 18, 2004 at 09:25 AM | Permalink
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Regarding: State v. Berry, 2004 WL 2580555, 2004-Ohio-6027 (Ohio App. 12 Dist. Nov. 15, 2004).
The rationale employed by the Twelfth District in this case is essentially that Ohio has an indefinite sentencing scheme rather than a definite sentencing scheme like that of the State of Washington. The Court stated in ¶40: "Judge Griffin and Professor Katz have suggested in their treatise, Ohio Felony Sentencing Law, that provisions such as R.C. 2929.14(B) 'are intended only to structure judicial discretion within an indeterminate sentencing scheme and not to set ceilings on sentences as occurred under the
Washington statute [reviewed in Blakely].' Griffin and Katz,Ohio Felony Sentencing Law, 482, Section 2.22. They further suggest that provisions like R.C. 2929.14(B) 'involve guidance
for determining the impact of a sentence on public protection and proportionality — determinations that have always been made
by a judge in deciding fairness and necessity of a sentence. Those are decisions that have never been consigned to juries and, thus, are not governed by the Sixth and Fourteenth Amendments to the United States Constitution.' Id."
The Twelfth District's insinuation that Ohio has an indeterminate sentencing statute is completely false. Ohio Revised Code section 2929.14(A) clearly states: "Except as provided in division (C), (D)(1), (D)(2), (D)(4), or (G)of this section and except in relation to an offense for which a sentence of death or life imprisonment is to be imposed, if the court imposing a sentencing upon an offender for a felony elects or is required to impose a prison term on the offender pursuant to this chapter and is not prohibited by division (G)(1) of section 2929.13 of the Revised Code from imposing a prison term on the offender, the court shall impose a definite prison term that shall be one of the following...."
In 1999, the Ohio Supreme Court addressed the question of whether an aggregate of consecutive DEFINITE sentences could exceed a 15 year maximum term for aggregated consecutive INDEFINITE sentences. In finding that the 15 year cap on indefinite sentences didn't apply to definite sentences, the Court held that "A 'definite' sentence is just what its name implies: a specific number of years of imprisonment rather than a range defined by minimum and maximum terms. Referring to minimum or maximum terms makes sense only when speaking to an indefinite sentence." Yonkings v. Wilkinson, (1999), 86 Ohio St.2d 225, 714 N.E.2d 394, 1999-Ohio-98.
A very recent (in fact, post-Blakely) decision of the Ohio Supreme Court struck down the practice of trial courts to impose prison sentences on defendants who had previously placed on community control with admonisions that a violation would result in a prison term of "up to 12 months" or "6 to 12 months". The Court found that the statute requires that the sentencing court state a specific, definite sentence when placing a defendant on community control. The Court stated at paragraph 19 that "By choosing the word 'specific' in R.C. 2929.19(B)(5) to describe the notification that a trial judge must give when sentencing an offender to community control, the General Assembly has made clear that the judge shall, in straightforward and affirmative language, inform the offender at the sentencing hearing that the trial court will impose a definite term of imprisonment of a fixed number of months or years, such as 'twelve months'incarceration,' if the conditions are violated. To comply with the literal terms of the statute, the judge should not simply notify the offender that if the community control conditions are violated, he or she will receive the 'maximum,' or a range, such as 'six to twelve months,' or some other indefinite term, such as 'up to 12 months.' The judge is required to notify the offender of the 'specific' term the offender faces for violating community control." State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746.
I don't know why Ohio trial appellate courts are stonewalling defendants with Blakely issues when appellate courts in other states, such as Indiana and Tennessee, are considering the matters thoughtfully. But it is abundantly clear that, after five months of evasion, that Defendants will have to file with the OHIO SUPREME COURT either writs of habeas corpus, prohibition, and/or mandamus PRIOR TO THEIR JURY TRIALS to compel trial courts to comply with Blakely.
Posted by: Charles M. Conliff | Nov 18, 2004 12:43:48 PM