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April 17, 2008

Washington Supreme Court rebuffs SCOTUS approach to Blakely harmless error

Nearly two years ago in Recuenco v. Washington (discussed here and here), the US Supreme Court declared that violations of Blakely rights could be subject to harmless error.  Thanks to an alert reader, I learned that today the Washington Supreme Court decided in this opinion to reject the application of harmless error in this context as a matter of state law.  Here is the start and end of the opinion:

This case asks us to determine whether Washington law requires a harmless error analysis where a sentencing factor, such as imposition of a firearm enhancement based on a deadly weapon finding, was not submitted to the jury. The United States Supreme Court in Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), held that Blakely errors can be subject to harmless error analysis.  We conclude that under Washington law, harmless error analysis does not apply in these circumstances.  On remand, we affirm State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005), and remand to the trial court....

Recuenco was charged with assault with a deadly weapon enhancement, and he was convicted of assault with a deadly weapon enhancement, but he was erroneously sentenced with a firearm enhancement.  We conclude it can never be harmless to sentence someone for a crime not charged, not sought at trial, and not found by a jury. In this situation, harmless error analysis does not apply.  Therefore, we vacate the firearm sentence and remand for correction of the sentence.

April 17, 2008 at 03:40 PM | Permalink

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Comments

The Washington Supreme Court opinion reinforces the notion that Apprendi is not about sentencing, it is about crimes. "It can never be harmless to sentence someone FOR A CRIME not charged, not sought at trial, and not found by a jury."

While Justice Scalia et al. may be on the plane to Apprendiland, they do not occupy the first class seats with the judges on the Washington Supreme court.

Bruce Cunningham

Posted by: bruce cunningham | Apr 18, 2008 12:00:08 AM

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