« Maryland's developing Blakely fix | Main | Plain error patterns persist »

March 22, 2005

Pondering the state Blakely pipeline

Picking up on my post here about all the Booker-inspired GVRs, Michael Ausbrook at INCourts notes here that he can only find one Blakely-inspired GVR (the Dilts case from Oregon).  That interesting discovery has me thinking more broadly about the pace and pattern of sentencing litigation in the state courts and about when and how the Supreme Court will consider state Blakely issues on the merits .

First, it is interesting that, nearly nine months since Blakely, less than half of the states struggling with major Blakely issues have had their state supreme courts weigh in.  My own notes show major Blakely rulings from state supreme courts only in Arizona (Brown), Indiana (Smylie), Minnesota (Shattuck), and Oregon (Dilts), and these rulings often punted as many issues as they resolved.   Meanwhile, we are still awaiting serious high court Blakely input in California, Colorado, New Jersey, New Mexico, North Carolina, Ohio and Tennessee.

Second, it bears noting that there are some broad and common Blakely issues of concern to many states (e.g., Blakely's applicability to consecutive sentencing), and a number of narrow and unique Blakely issues of concern only to particular states (e.g., Blakely's applicability to Ohio's "worst form of the offense" enhancement).  Also, there are a range of Blakely remedy/pipeline issues that implicate constitutional provisions like double jeopardy and due process.  Whether, when and how the Supreme Court will take up these "second-generation" Blakely issues from the states should be an interesting story for many years to come.

March 22, 2005 at 02:01 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200d8343e244953ef

Listed below are links to weblogs that reference Pondering the state Blakely pipeline:

Comments

Florida has a Mandatory Maximum sentence called the Prison releasee Reoffender statute that violates Blakely-Booker and Shepard. See Motion and Briefs have been filed on this issue in the Florida Appellate Court Fourth District West Palm Beach, Florida

Posted by: Anthony Calvello Asst Public Defender West Palm Beach, Fl. | Mar 22, 2005 3:34:11 PM

Florida has a Mandatory Maximum sentence called the Prison releasee Reoffender statute that violates Blakely-Booker and Shepard. See Motion and Briefs have been filed on this issue in the Florida Appellate Court Fourth District West Palm Beach, Florida
LEGAL ARGUMENT
1. The 15 year PRR sentence imposed in the instant case violated the defendant’s Sixth Amendment right to a jury trial in light of the recent decision of the United States Supreme Court in Blakley v Washington, 124 S.Ct. 2531, 159 L.Ed2d 403 (2004).
2. On June 24, 2004, the United States Supreme Court issued its decision in Blakely, which addressed a provision of Washington State's determinate sentencing law that allowed a sentencing judge to impose a sentence above the standard statutory sentencing range if the sentencing judge found, by a preponderance of the evidence, that certain offense aggravating factors existed that justified a sentence in excess of the "standard range." Blakely,124 S.Ct. at 2535.
In Blakely, the sentencing judge utilized this authority to impose a ninety (90) month sentence, even though the standard range for Mr. Blakely's offense, second-degree kidnapping, was 49 to 53 months in prison. Id. In striking down Blakely's enhanced sentence, the Supreme Court explained "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict o r admitted by the defendant." Id. at 2537. Thus, because the jury in Blakely’s case did not determine the factual basis for the enhanced sentence, and Blakely did not admit the facts, his enhanced sentence could not survive a Sixth Amendment challenge.
3. Defendant/Appellant acknowledges that the Florida Supreme Court has rejected an Appendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), challenge to the PRR statute in McGregor v. State, 789 So. 2d 976 (Fla. 2001). See also Kijewski v. State, 773 So. 2d 124 (Fla. 4th DCA 2000). (“Like the statute in McMillan, the PRRA did not increase the maximum statutory penalty in this case, but rather limited the sentencing court's discretion in selecting a penalty within the statutory range. Apprendi, accordingly, does not require proof of appellant's release in order to subject appellant to a sentence under the PRRA.”). However, Blakely is much broader in scope and application than Apprendi . 4. Under Florida law, a PRR sentence constitutes a mandatory minimum sentence. In State v. Cotton, 769 So. 2d 345,354 (Fla. 2000), the Florida Supreme Court in describing the PRR statute held: “ [W] hen the Act is properly viewed as a mandatory minimum statute, its effect is to establish a sentencing “floor.”If a defendant is eligible for a harsher sentence "pursuant to [the habitual offender statute] or any other provision of law," the court may, in its discretion, impose the harsher sentence. See § 775.082(8)(c), Fla. Stat. (1997).” See also Grant v. State, 770 So. 2d 655,658 (Fla. 2000)(“It is no different to impose, on a qualifying defendant, a PRR mandatory sentence concurrently with a longer HFO sentence than to impose a mandatory minimum sentence for use of a firearm concurrently with a longer HFO sentence.”)
Section 775.082(9)(a) requires the conviction of an enumerated offense and more importantly that the enumerated offense be committed while in (1)a prison, (2) on escape from a prison, or (3) within three (3) years of release from prison.
5. Since the sentence imposed pursuant to the PRR Act, is “properly viewed as a mandatory minimum statute,” the defendant’s release date or prison status must be alleged in the charging document, found by a jury, and proven beyond a reasonable doubt to allow the enhanced PRR mandatory minimum sentence being imposed rather than the applicable guideline sentence. In its present form, PRR Act violates the Defendant’s Fifth Amendment right to notice and proof beyond a reasonable doubt.
6. The Ninth Circuit in United States v. Ameline , 376 F 3d 967 ( 9th Cir. July 21, 2004), applying Blakely, vacated a defendant’s federal guidelines enhanced sentence “because the facts underlying the calculation of his base offense level and his sentence enhancement were not found by a jury beyond a reasonable doubt.”
We hold that Blakely's definition of statutory maximum applies to the determination of the base offense presumptive ranges under § 2D1.1(c) of the Sentencing Guidelines, as well as the determination of the applicability of an upward enhancement under § 2D1.1(b)(1). As a result, we hold that Ameline's sentence, based on the district court's finding by a preponderance of the evidence of 1,603.60 grams of methamphetamine--despite Ameline's admission of only a detectable amount of methamphetamine--violates Ameline's Sixth Amendment right to a jury trial. Because we may sua sponte review an issue based on a change in the law by the Supreme Court, we hold that we may properly review Ameline's Blakely claim and conclude, regardless of whether we apply the harmless or plain error standard, that the district court violated Ameline's right to have the facts underlying his sentence found beyond a reasonable doubt.

7. In United States v. Booker, 375 F3d 508 (7th Cir. July 9, 2004), cert. granted, United States v. Booker, (Case No 04-104, Aug. 2, 2004), the Seventh Circuit held that the imposed guidelines sentencing increases based upon a district judge's factual determinations pursuant to the Federal sentencing guidelines violated the defendant's Sixth Amendment right to have jury determine drug quantity and whether he obstructed justice); But see United State v. Pineiro, 377 F3d 464 (5th Cir. July 12, 2004) (Federal Guidelines unaffected by Blakely); United States v. Reese, Case No. 03-13117 (11th Cir. Sept. 2, 2004)(same).
8. In Booker, Chief Judge Posner noted in light of Blakely that “the relevant ‘statutory maximum’ for Apprendi purposes is the maximum a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Booker, 375 F.3d at 510. Chief Judge Posner continued: “The vices of the guidelines are thus that they require the sentencing judge to make findings of fact (and to do so under the wrong standard of proof)” Id. The Florida PRR statute suffers from the identical vice.
9. Recently, the Minnesota Appellate Court applying Blakely to their guidelines sentencing scheme held in State v. Mitchell, - NE2d - , 2004 WL 2283396 (Minn Appellate Oct. 12, 2004), that a trial court’s determination that a defendant's prior convictions formed “pattern of criminal conduct”, as required for enhanced sentencing under their State’s career-offender statute, involved more than a finding of recidivism, and thus imposing an enhanced prison sentence based on trial court's finding of pattern of criminal conduct violated the defendant's Sixth Amendment right to trial by jury. The PRR finding of prison status or date of release is likewise not a finding of recidivism.
0. In light of Blakely, Booker, Ameline, and State v. Mitchell, supra, this Honorable Court should vacate defendant’s PRR sentence and re-sentence him without regard to the PRR Act pursuant to the Florida Criminal Punishment Code. A crucial factual determination, date of release here, was found not by a jury beyond a reasonable doubt but by a sentencing judge by a preponderance of the evidence in violation of the Defendant’s Sixth Amendment rights. Justice Scalia’s closing remarks concerning Mr. Blakely’s enhanced sentence underscore the constitutional principle at stake:

he Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State, should suffer the modest inconvenience of submitting its accusation to the unanimous suffering of twelve of his equals and neighbors, rather than a lone employee of the State.

11. Finally, the PRR statute with its total lacks of any statutory written notice to the defendant is clearly in violation of the Sixth Amendment Notice requirement articulated by Blakely. Id. at 2536; Apprendi, 120 S.Ct. at 2354(“We noted in [Jones v. United States, 526 U.S. 227 (1999)] that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." ). The Fourteenth Amendment commands the same answer in this case involving a state statute that fails to provide notice of an increased mandatory penalty. Hence, the PRR statute, on its face, is unconstitutional under the Sixth Amendment.
WHEREFORE, Defendant/Appellant respectfully requests based on the
arguments contained herein that this Honorable Court enter orders vacating his
fifteen(15) year PRR statute for the burglary charge and re-sentence him pursuant to the

Florida Criminal Punishment Code (Rule 3.704) without regard to the PRR statute. Respectfully submitted,

CAREY HAUGHWOUT
Public Defender
15th Judicial Circuit of Florida
421 Third Street/6th Floor
West Palm Beach, Florida 33401
(561) 355-7600


Anthony Calvello
Florida Bar No.266345
Assistant Public Defender

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof has been furnished by courier to Celia Terenzio, Assistant Attorney General, 1515 North Flagler Drive, 9th floor, West Palm Beach, Florida 33401, and by mail to the Clerk, Office of the Clerk of the Court 15th Judicial Circuit, Palm Beach County Courthouse, West Palm Beach, Fl. 33401, and to the Honorable Stephen A. Rapp, Circuit Court Judge, Palm Beach County Courthouse, West Palm Beach, Fl., 33401, to Jason Lewis, Assistant State Attorney, Office of the State Attorney, Criminal Justice Building, 401 North Dixie Highway, West Palm Beach, Fl. 33401, Jose Castaneda Esq.,Office of the Public Defender, 421 3rd Street, 5th floor, West Palm Beach, Fl. 33401 on the 18th day of October, 2004.

Posted by: Anthony Calvello Asst Public Defender West Palm Beach, Fl. | Mar 22, 2005 3:36:42 PM

Dear Sir: My husband was convicted and sentenced on drug charges carring a minimum mandatory. What I am looking for is florida case law where the conviction and sentences where either vacated or ruled Unconstitutional due to the fact he had a severe hearing impairment, and the courts and council both knew of this yet no provisions where ever made for him nor did anyone advise us as to his rights so he could participate in his trial.

Posted by: Moira Elrod | Apr 6, 2005 11:07:13 AM

Good morning,

My fiance was just sentenced to 15 years Mandatory. His priors were when he was only 16 years old. but he was sentenced as an adult which unconstitutional. Now we are trying to fight this case where can i go to get more info. This was a plea he took, or more he was forced to take by his own lawyer who ridiculed and incriminated him in the court room.

Thank you,

alejanda

Posted by: Alejandra Ochoa | Feb 15, 2006 9:18:05 AM

Dear Sirs,

My son Nigel Kelley was sentenced on Jan 5,06 to life in prison. He resides in Florida. He was sentenced under the PRR Act. His crime was robbery with a small steak knife of a 7-11 in which he recieved $16.00. No one was hurt or even threatened. His first crime was robbery with a weapon in 1998,again no one was hurt, he served 4 years in prision and was a juvenile offender. My daughter and self are attempting to lobby to change this law and could use any and all the help we can get. Please advice.
Sincerely

Valerie S. Kelley

Posted by: Valerie S. Kelley | Feb 22, 2006 11:13:02 PM

DAB, I hope I am using this site correctly, I am interested in the definition of consecutive. I have a case pending on consecutive payments made in a land sale contract, and I need a definition wether it is used as a noun, adjective, adverb. please advise. and email me. I am a nurse.
thank you so much

Posted by: Linda Scott | Jan 29, 2008 6:38:48 PM

DAB, I hope I am using this site correctly, I am interested in the definition of consecutive. I have a case pending on consecutive payments made in a land sale contract, and I need a definition wether it is used as a noun, adjective, adverb. please advise. and email me. I am a nurse.
thank you so much

Posted by: Linda Scott | Jan 29, 2008 6:39:37 PM

my husband was sentenced to 89 months in prison at washington state pen. then won his appeal for to many points and was resentence to 62 months mean while he did 465 days more then what he should of. can you lead me in the right direction to see what i can do about him doing to much time.please advise and e-mail me thank you for your time

Posted by: andrea danielson | Aug 20, 2008 5:05:49 AM

dell 9300 battery

Posted by: | Oct 14, 2008 8:35:28 AM

Sirs, please help. Can the Florida Parole Commission extend the maximum release date when they revoke conditional release and return offender to prison? Thank you so much for ANY help!

Posted by: Sandra | May 13, 2009 9:15:42 AM

Post a comment

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