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April 20, 2010

Noting SCOTUS disinterest in juve priors as basis for enhanced adult sentence

The fact that the Supreme Court could soon announce new constitutional principles for sentencing juvenile offenders in in the pending Graham and Sullivan cases makes extra interesting the Justices' decision to deny cert in a case concerning juve priors and an Apprendi challenge from California.  This piece from the San Francisco Chronicle, which is headlined "'Three strikes' can count juvenile convictions," provides the details:

The U.S. Supreme Court on Monday upheld California judges' authority to count adult felons' convictions in juvenile court in determining whether to sentence them to life in prison under the state's "three strikes" law.

The court denied a San Jose man's appeal of his 2005 sentence for possessing a gun as a convicted felon. Vince Nguyen's sentence was doubled, to 32 months, based on his assault conviction in a 1999 juvenile court proceeding, when he was 16.  Under the three strikes law, he could have been sentenced to 25 years to life in prison if his record had included a second such conviction as a juvenile.

The 1994 three strikes law, the nation's toughest sentencing measure for repeat offenders, requires a sentence of 25 to life for anyone convicted of a felony at age 18 or older who has committed at least two serious or violent felonies in the past.  With one such previous conviction, the normal sentence for the new crime is doubled.

Unlike most states with repeat-felon laws, California classifies convictions for serious or violent crimes in juvenile court, at age 16 or 17, as strikes.

Nguyen claimed that increasing a sentence based on a juvenile conviction violated a U.S. Supreme Court ruling in 2000 entitling defendants to a jury trial on any facts used to lengthen their sentences beyond the usual maximum term.  The California Supreme Court ruled against Nguyen in July 2009, saying the use of his juvenile conviction to increase his sentence as an adult did not violate his right to a jury trial.

April 20, 2010 at 09:16 AM | Permalink

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Comments

do we need to go back to legal journalism 101 here? one more time people: A CERT DENIAL DOES NOT MEAN THE SUPREME COURT "UPHELD" THE LOWER COURT'S DECISION OR REASONING.

sorry for the yelling. but while this is a tricky concept for the layman to grasp, it really should not be that hard for reporters and news organizations -- who only need to learn it once and then put it in editorial guidelines, etc. for crying out loud, journalists are supposed to *help* the layman understand subtle or confusing aspects of civic life, not exacerbate the confusion.

Posted by: petpeever | Apr 20, 2010 4:06:09 PM

1. There isn't a constitutional right not to have your juvenile record considered at all,

2. Consideration of prior adjudicated convictions has never violated the jury trial right of Booker, et al.,

3. A sentence of 32 months v. 16 months for a felony isn't 8th Amendment worthy as the state could almost certainly have constitutionally provided for a 32 month sentence in the first instance for just about any adult felony, and

4. three strikes was already established as constitutional for adults with two adult felony strikes and a minor third conviction under an 8th Amendment challenge.

The real argument buried in this case seems to be that convictions in which there was no right to a jury trial shouldn't be used as a sentence enhancer under Booker et al. and that it is the lack of a right to a jury trial in juvenile cases, rather than the fact that they were committed by a juvenile that makes them relevant. This is a very different argument than the Graham and Sullivan cases in which the fact that the offenders were juveniles at the time is what matters.

The argument apparently made by Vincent Nguyen is theoretically identical to an argument that a maximum adult sentence shouldn't be enhanced by a prior conviction for a petty offense for which state law did not permit the defendant to have a jury trial, or under the military justice system where the offense was sufficiently minor to deprive a defendant of a right to a court-martial, or under a foreign legal system that didn't have criminal jury trials. In practice, however, those examples almost never come up because almost all states have a right to a jury trial for even minor offenses, very few states enhance maximum sentences based on non-felonies, few state prosecutors research foreign criminal records for sentencing hearings, and the these situations rarely overlap.

If SCOTUS is going to consider the issue, it will probably wait for a more compelling situation. Given that this defendant is three and a half years out on a case involving a 32 month sentence entered in 2005, he would likely have done all of his time on this charge by the time that SCOTUS could argue and rule on the case and a lower court could handle it on remand, sometime in 2011 or 2012, and the appellate argument wouldn't eliminate the felony taint of having the conviction in any case.

It is axiomatic, of course, that cert can be denied when the court below has made a mistake, because it isn't important enough.

Indeed, presumably, Vince Nguyen's argument wouldn't even apply in cases like Graham and Sullivan where the LWOP sentences were only available because the juveniles were tried as adults and in at least one if not both of the cases, actually did have jury trials.

A three strikes case with two juvenile strikes and a minor offense third strike might make an 8th Amendment case, because the longest least reasonable adult sentences upheld under the 8th Amendment have specifically invoked recidivism as a justifying basis, but there is still some apparently good law under the 8th Amendment that prohibits very long non-capital sentences for very minor offenses.

A juvenile with two juvenile strikes facing 25 to life could argue that the juvenile strikes don't have the same impact under the 8th Amendment as adult strikes, making a 25 to life sentence for a minor offense excessive under the 8th Amendment.


Posted by: ohwilleke | Apr 21, 2010 7:01:46 PM

More from the story:

"Unlike most states with repeat-felon laws, California classifies convictions for serious or violent crimes in juvenile court, at age 16 or 17, as strikes. . . . The California Supreme Court ruled against Nguyen in July 2009, saying the use of his juvenile conviction to increase his sentence as an adult did not violate his right to a jury trial.

Nguyen PLEADED NO CONTEST to the gun charge in 2005. The state Supreme Court said he could have sought a jury trial in that case and asked the jurors to determine whether he had been convicted of the 1999 assault.

Nguyen has completed his sentence."

The sentence completion makes the case effectively moot since the conviction is not contested.

What federal remedy would he have? He can't be ordered released. The judge and prosecutor have absolute immunity in suits for money damages. The State of California is probably can't be sued for money damages under the 11th Amendment for imposing an unconstitutionally wrong sentence in federal court (although there might be some remedy for that at state law), and probably is immune from suit in state court under federal law for money damages for imposing an unconstitutionally long sentence under the sovereign immunity that the 11th Amendment implies. No one outside the court system is alleged to have done anything wrong.

Any suit for money damages against the criminal defense attorney is probably barred by some combination of the advisement at the plea, government immunity if the criminal defense attorney was a merely negligent state employee who didn't intentional violate his client's right, and the fact that he probably had a weak case on the merits had he gone to trial, which deeply undermines a causation case. And, a suit against the criminal defense attorney would not arise under federal law absent intentional misconduct by that criminal defense attorney which is not alleged, and even a case of intentional misconduct by the criminal defense attorney would probably be protected by a qualified immunity defense here since the right is not well established.

So even if Nguyen's federal rights were violated, SCOTUS could not grant him a meaningful remedy. Any ruling would have to be of the Roe v. Wade likely to arise and never amendable to timely review character, which is a stretch in the best of cases and more so here where second and third strikes based on juvenile convictions in which there was no right to a jury trial that are not moot are likely to come up.

The California Supreme Court's ruling that he could have asked to jurors to determine whether he had been convicted does miss the point, which is that the conviction was based on a finding of a judge in a case where a jury was not available. Unless the jurors in the current case had the opportunity to determine that he was guilty beyond a reasonable doubt of the 1999 assault notwithstanding the juvenile judge's ruling, the lack of a jury trial issue still isn't answered.

Another thing that makes this case tricky before SCOTUS is that there is an advisement/ineffective assistance element here. If Nguyen was told by his lawyer and/or advised by the judge that he faced a potential 32 month sentence, and pleaded no contest anyway, the possibility that he either waived his appellate claim, or that his appellate claim should have been one for lack of advisement or ineffective assistance of counsel (which may have been waived by not being timely asserted), rather than denial of a jury trial right, looms large.

Really, the issue raised here is an interesting one that could come up and be cert worthy in some cases, just not this one.

Posted by: ohwilleke | Apr 21, 2010 7:23:41 PM

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