October 11, 2007
Oregon Supreme Court applies Apprendi to consecutive sentences
Providing a great reminder that there are still many unsettled Blakely issues, the Oregon Supreme Court today in State v. Ice, No. S52248 (Ore. Oct. 11, 2007) (available here), holds that the "federal constitution requires that a jury, rather than a judge, find the facts that Oregon law requires be present before a judge can impose consecutive sentences." All Blakely fans should make the time to check out Ice.
The majority's opinion in Ice is cool for many reasons: it has a thoughtful discussion of state constitutional law, it effectively reviews the Apprendi line of cases, and it essentially castigates other state supreme courts for reading Apprendi too narrowly. But the dissent in Ice is also cool: it notes the long tradition of judges deciding whether to impose consecutive or concurrent sentences, it accuses the majority of "extending the rule in Apprendi farther than either the holding or the reasoning in that case warrants," and it documents that nearly every court "that has considered this [consecutive sentencing] question has held that Apprendi does not apply in this context."
Because Ice deepens a split over the reach of Apprendi and Blakely, the case might be viewed as quite cert worthy if Oregon decides to appeal Ice to the US Supreme Court.
October 11, 2007 at 01:30 PM | Permalink
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Among the contrary cases is Black v. California, 07-6140. It is nominally on conference for October 26. However, SCOTUS has asked for a response from the state, and it isn't due until Nov. 8, so we can expect Black to be relisted for a later conference.
Posted by: Kent Scheidegger | Oct 11, 2007 1:49:08 PM
Does anyone think that the fact that sentences are not always imposed by the same jurisdiction has some impact in the analysis?
Posted by: federalist | Oct 11, 2007 3:15:40 PM
Here is another case for October 26 conference. #07-391 United States v. Parrish and Carlisle.
In this case the judge imposed an 8 level bump in sentencing for what she said was conspiring with a Col. in the military. An high level government official. The Col. was never in the case nor deliberated by the jury. But the judge increased the sentencing anyways.
Carlise is arguing Venue. He was hired in Virginia and worked in South Korea. But they tried him in California. They are saying the the other defendant was from California so they all must be tried in California. We will see.
Interesting case. We will see what happens at the end of October.
Posted by: Rick Carlisle | Oct 11, 2007 6:21:03 PM
No, federalist, I don't think it makes any difference. If the judge has to make an extra factual finding to authorize a consecutive sentence, then there's an Apprendi/Blakely violation. Pretty simple.
Posted by: Anon | Oct 11, 2007 10:51:10 PM
If the issue was "pretty simple" then the Oregon court wouldn't be in the minority in deciding that Apprendi/Blakely apply to consecutive sentences. For that matter, there wouldn't be a minority. However, given the substantial differences between State's sentencing schemes and their distinctive methodologies for reviewing these types of claims, it's not surprising that there's a divide.
Posted by: JustClerk | Oct 12, 2007 8:58:54 AM
JustClerk, the issue is pretty simple. Is there a flaw in my analysis that I should be aware of?
The fact that several state appellate courts choose to ignore its simplicity because they don't want to issue decisions that benefit criminal defendants doesn't change that.
Posted by: Anon | Oct 12, 2007 10:33:52 AM
That's absurd. Even if you accept Blakely for the propostion that any factor that increases a sentence has to go to a jury -- you still have to make the intellectual leap that "a sentence" means all of your sentences. Some states, like Ohio, specifically reject the sentencing package doctrine and require that each sentence stand on its own. Which makes it all the more odd that Ohio found that Blakely applies to consecutive sentences. (And I would point out flaws in your analysis, but you didn't provide any analysis.)
Posted by: JustClerk | Oct 12, 2007 11:14:54 AM
JustClerk, your analysis is a little off. You say Blakely's "proposition" is that "any factor that increases a sentence has to go to a jury." Blakely's key proposition, however, related to a defendant's "statutory maximum." The proposition is NOT: "any fact that increases a sentnce has to go to a jury." But rather: "any fact that increases the statutory maximum must go to the jury."
So, the "intellectual leap" that must occur regarding consecutive sentences has nothing to do with "all of your sentences" or whether sentences "stand on [their] own."
Take this example:
Count 1: maximum 5 years (no Blakely problem)
Count 2: maximum 3 years (no Blakely problem)
Then the legislature states: "Sentences for multiple counts must run concurrent with each other, unless the judge finds x. If the judge finds x, consecutive terms may be imposed." (Compare this with Ohio's (unconstitutional) statute which said a judge may impose consecutive sentences if the judge finds x, y, and z.).
In effect, by statute, the legislature has set the maximum amount of punishment for this defendant at 5 years, unless the judge finds "x." Only if the judge finds "x," is the defendant subjected to the possibility of 8 years.
Even if the sentences for Counts 1 and 2 "stand on [their] own," the legislature in the above example is increasing the amount of time the defendant may receive based upon a fact found by a judge. To me, Blakely is clearly implicated in that example.
Posted by: DEJ | Oct 12, 2007 12:09:27 PM
It is theoretically possible to look at a sentence for multiple crimes as one crime so as to shoehorn the imposition of consecutive sentences into Apprendi/Blakely, but that seems very artificial to me. How much time one gets for a discrete crime is different from when one is entitled to start serving it. Plus, there doesn't seem to be the problem of non-jury authorized sentences for a particular crime in the consecutive sentence situation.
Posted by: federalist | Oct 12, 2007 12:15:13 PM
Non-legal, purely rhetorical argument on the issue as to whether consecutive sentences increase the length of a sentence or merely delay the start time of the consecutive sentence.
A criminal defense lawyer comes back from a sentencing where his client got twenty years, on three convictions, some of them running consecutive. She's asked by her assistant, "how'd it go?" Which answer is more likely:
"He got a sentence of 20 years."
"He got three sentences, one of ten years, one of five years and another of five years, but the good news is, he doesn't have to serve the final five year sentence for another 15 years."
I think defining the sentence strictly in terms of the sentence imposed on a single count, rather than the entire sentence imposed from a single criminal episode, is hypertechnical to an absurd degree, defies all common sense and it is contrary to what we intuitively think of when we think of someone being sentenced.
Posted by: Ryan Scott | Oct 12, 2007 3:03:27 PM
DEJ has it exactly right. The question is: what sentence is legally permissible based upon the jury's verdict alone? Obviously, different states can have different standards: if state A says "the trial judge shall have discretion to impose any sentence consecutive to or concurrent with any other sentence," then there's no Apprendi/Blakely problem because no extra factfinding is required.
However, under DEJ's example (which I believe is essentiall the system in Oregon, Washington, Ohio, and others), there is a Blakely problem. The maximum sentence the defendant can receive based on the jury's verdict alone is 5 years (5 years plus 3 years concurrent). Only once the judge finds fact X is the judge authorize to impose any sentence longer than 5 years. Thus, fact X must be proven to a jury beyond a reasonable doubt.
Again, seems pretty simple to me.
Posted by: Anon | Oct 12, 2007 3:43:32 PM
That approach simply begs the question. A sentence is tied to a discrete crime, which is what Apprendi is all about. The question of when the criminal gets to start serving it is a different question entirely. That is a "fact" question does not mean that it is necessarily committed to a jury's determination. It's not an element of a crime, in the sense that it dictates the max punishment for that crime. It's a different animal.
However, there are state statutes which effectively make a bunch of crimes a single crime. Indiana has an "episode of criminal conduct" statute (with exceptions) which mandates concurrent sentences up to the next highest felony for an episode of criminal conduct. So do statutes like this making a bunch of crimes one crime (for sentencing purpose) alter the analysis. Who knows?
But this is far from a simple question.
Posted by: federalist | Oct 12, 2007 4:23:15 PM
Is it simple, federalist. Remember, it is the effect, not the form or label, of the fact that implicates Apprendi/Blakely. If the effect of the factfinding is to authorize consecutive sentences - i.e., a longer sentence - then there's a 6th A violation. It doesn't matter whether the label of "consecutive" or "enhanced" sentence applies.
To be sure, a state could easily legislate it's way out of this problem, basically by making the order of service of sentences discretionary with the sentencing court. But in the system you describe, and in the Oregon and Washington systems, that's not the case. Thus, the 6th A violation.
Posted by: Anon | Oct 12, 2007 7:05:56 PM
Once again, you beg the question. A criminal may look at what his total sentence was as "one sentence" and we may even think of it that way, and it may be based on a factual determination, but the core issues that Apprendi was concerned with, i.e., the interplay between the facts found beyond reasonable doubt and what the legislative max was for those facts is simply not present in the consecutive sentencing arena. That doesn't mean that Apprendi shouldn't necessarily extend to consecutive sentencing, but it certainly argues against it.
Remember joinder? You know, that rule about trying two crimes in front of the same jury. The whole concept of joinder implies that crimes are discrete things which stand by themselves. To the extent that they are discreet, Apprendi/Blakely doesn't necessarily control, as the issue really is truly when the sentence starts to run, not the length of sentence. Is this overly formalistic, perhaps, but Apprendi is a formalistic rule too, right?
I'll leave it to smarter folks than I to figure all of it out. I just asked a question.
Posted by: federalist | Oct 12, 2007 11:36:17 PM
No, federalist, Apprendi is precisely NOT a "formulistic rule," and if you'd pay attention to the opinions you'd know that. Apprendi is a rule about effect, not form. If the effect of the factfinding is to expose the defendant to a penalty he's not otherwise eligible for - including consecutive sentences - the 6th A applies.
If you had "just asked a question," you would at least acknowledge that this is the answer. But you didn't "just" ask a question. You engage in the worst kind of debating practice - the kind where you claim to have no opinion on the matter. But your position is actually quite clear from the tone and form of your responses. But because you never actually state your opinion, you don't have to defend it. It's pretty cowardly, really.
Posted by: Anon | Oct 13, 2007 12:30:44 PM