Sentencing Law and Policy

Hawai'i Supreme Court okays state's Blakely fix

Thanks to this post at How Appealing, I saw that the Hawai'i Supreme Court, in a lengthy split ruling, approved the constitutionality of the state's recent Blakely fix legislation.  This article from the Honolulu Advertiser describes the basics of the ruling:

The Hawai'i Supreme Court has approved a new state law, passed by the Legislature in special session last year, that changes procedures for imposition of "enhanced" sentences of criminals identified as dangers to the community. In finding the law constitutional, however, the high court said prosecutors must notify such defendants at the outset of such a case that enhanced sentencing will be pursued if they are convicted.

In a 72-page, 3-2 decision written by Justice Steven Levinson, the court also approved provisions of the law that allows it to be applied retroactively to convicts who have received enhanced sentences. Hawai'i Attorney General Mark Bennett, who argued the constitutionality of the law before the high court, said "there are good and bad things" in the decision.

Thanks also to How Appealing, here are links to the ruling, in the form of a majority opinion; an opinion concurring and dissenting; and a dissenting opinion.

Arizona Supeme Court extends jury trial rights to misdemeanors leading to sex offender registration

In a very interesting opinion that covers a lot of very interesting modern criminal justice issues, the Arizona Supreme Court yesterday in Fushek v. State, No. CV-07-0251-PR (Ariz. Feb. 15, 2008), unanimously held that the Arizona state constitution requires a jury trial for misdemeanor charges that could lead to sex offender registration.  Here is the opinion's key conclusion:

[W]e conclude that the potential of sex offender registration reflects a legislative determination that Fushek has been charged with serious crimes.  As the Supreme Court noted in Blanton, “[t]he judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task.” 489 U.S. at 541-42....  We defer to the legislature’s determination that misdemeanor crimes involving sexual motivation are serious offenses and hold that when a special allegation of sexual motivation exposes a defendant to the possibility of sex offender registration, Article 2, Section 24 of our Constitution entitles the defendant to a trial by jury.

Download fushek_opinion.pdf

Oregon AG seeks cert on Blakely's applicability

As detailed in this post, a few months ago the Oregon Supreme Court held in State v. Ice, No. S52248 (Ore. Oct. 11, 2007) (available here), 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."  The Attorney General of Oregon does not agree and is now seeking Supreme Court review of this question:

Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), is violated by the imposition of consecutive sentences based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.

Oregon's petition for cert with this question can be downloaded below, and here are part of the "reasons for granting" section of the petition:

This Court should grant the petition for writ of certiorari and review this case for two reasons. First, the Oregon Supreme Court opinion deepens the significant split among the state courts that have considered this recurring issue of federal constitutional law....

Second, the Oregon Supreme Court’s holding is an unwarranted extension of Apprendi and Blakely beyond what this Court’s reasoning supports.  This Court has explained the Apprendi rule as a non-subjective means for determining the elements of an offense.  By extending the jury-trial requirement to establishing how otherwise-lawful sentences are served, the Oregon Supreme Court has gone well beyond the due-process concerns that require states to prove each element of an offense to a jury beyond a reasonable doubt.

Download ice_pet. for Cert.pdf

After Blakely, the more things change, the more...

they seem to stay the same. Or at least that's what appears to be the reality in Tennessee.  A helpful reader sent me this link to the latest careful research providing a post-Blakely analysis of Tennessee sentencing data.  As the reader explained: "Nothing earth shattering. Just a little more confident that sentencing practices haven't changed that much with advisory guidelines."

Thoughtful Blakely opinion from Arizona Supreme Court

With all the on-going federal sentencing stories these days, I cannot keep track of all the notable Blakely issues still being worked out by state courts. Fortunately, a friend of the blog alerted me to this new opinion from the Arizona Supreme Court in State v. Price (available here) which this opening paragraph effectively previews:

We accepted review to determine whether the defendant's sentence was aggravated in violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Blakely v. Washington, 542 U.S. 296, 305 (2004), which hold that the Sixth Amendment affords a right to have a jury, rather than a judge, determine any fact, other than a prior conviction, that increases a defendant’s statutory maximum sentence. The trial court imposed an aggravated sentence based on facts that the State now concedes were not found in compliance with Apprendi and Blakely.  We hold that the case must be remanded for resentencing and reject the State’s suggestion that, as a reviewing court, we should find other aggravating facts to uphold the flawed sentence.

In addition to a thoughtful majority opinion, Judge Hurwitz has a strong concurrence that starts to crack another tough Blakely nut, but is "content to leave final resolution of this conundrum to another day."

Vermont Supreme Court limits retroactivity of its Blakely ruling

As detailed in this AP story, the Vermont Supreme Court "ruled yesterday that a 2005 decision that found Vermont's laws on sentencing murderers unconstitutional did not apply to a long list of killers sentenced before it was issued."  This ruling came in State v. White, 2007 VT 113 (Nov. 9, 2007) (available here), and White is an especially interesting read now that the US Supreme Court is considering state retroactivity authority in the Danforth case (discussed here and here and here).

After Cunnigham remand, New Mexico gets with the Sixth Amendment program

Following the leads of the highest courts in Hawaii and Tennessee (which both recently recongized that they have to live in Apprendi-land), the New Mexico Supreme Court this week recognized that the US Supreme Court's ruling in Cunningham conclusively determined that its state's mandatory sentencing scheme creates Sixth Amendment problems.   The ruling, in State v. Frawley (available here), begins this way:

This case is before us for a second time, after remand from the United States Supreme Court for reconsideration in light of its recent opinion in Cunningham v. California, ___ U.S. ___, 127 S. Ct. 856 (2007).  The issue we are asked to revisit is whether alteration of a defendant’s basic sentence upon a finding by the judge of aggravating circumstances surrounding the offense or concerning the offender, NMSA 1978, § 31-18-15.1(A) (1993), violates the federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution.  We conclude Cunningham requires that we declare Section 31-18-15.1 facially unconstitutional.

The consequences of Cunningham in Hawaii and Tennessee

With so much going on, I have failed to report previously that in the last few weeks the highest courts in both Hawaii and Tennessee have (finally) recognized that they have to live in Apprendi-land.  Specifically, recognizing the impact and import of the Supreme Court's ruling in Cunningham (which applied Blakely to California's structured sentencing system), the Supreme Courts of Hawaii and Tennessee have both recently held that their states' mandatory sentencing schemes create Sixth Amendment problems.

These recent rulings came in State v. Maugaotega (available here) and State v. Gomez (available here).  A local press report provide the basics in this article from Hawaii.  And BNA subscribers can read about both rulings at this link.

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.

Federal habeas ruling finds Blakely problems with NY's persistent felony offender statute

As detailed in this New York Law Journal article, entitled "N.Y. Persistent Felon Law Held Invalid by Federal Court," another federal district court has declared New York state's persistent felony offender statute unconstitutional on Blakely grounds. Here are the basics:

A second federal judge has found New York state's persistent felony offender statute unconstitutional because it allows judges to find facts that can lead to a sentence beyond the statutory maximum. Southern District of New York Judge John Koeltl found that N.Y. Penal Law §70.10 violated the Sixth Amendment right to a jury trial because, under the rapidly evolving case law of the U.S. Supreme Court, a jury has to find the facts that the state law leaves to the judge.

Judge Koeltl granted a petition for a writ of habeas corpus to inmate William Washington in Washington v. Poole, 06 Civ. 2415. The decision comes five months after Eastern District of New York Judge John Gleeson made a similar ruling in a habeas case and just one month after Southern District of New York Judge Robert Sweet went the other way and upheld the law.  These three decisions will now join a fourth that is pending in the 2nd U.S. Circuit Court of Appeals, Phillips v. Artuz.

"The constitutionality of these statutes is obviously still in play," said Jonathan Kirshbaum of The Center for Appellate Litigation, who represented Washington.

Michigan Supreme Court finds ways to keep dodging Blakely

I have been remiss in not previously noting two major Michigan Supreme Court rulings on Blakely from late last week (with thanks a number of readers for the head's up).  Here are cites/links to the two big rulings:

• People v. McCuller, No. 128161 (Mich. July 26, 2007) (available here)
• People v. Harper, No. 130988 (Mich. July 26, 2007) (available here)

As one reader noted to me, "each runs over 80 pages, including dissenting opinion."  A quick scan lead me to the conclusion that a majority of the Michigan Supreme Court (like many justices on other state supreme courts) remain eager to keep Blakely from upsetting the current state sentencing apple cart.  It remains to be seen whether federal judges considering these matters in habeas cases will share this instinct.

I highly encourage readers with knowledge of Michigan law and practice to help me understand who is getting the best of the arguments in these cases.

Sixth Amendment clarity in the midst of March Madness

I recently noted here the big habeas development from New York in the form of Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here).  I have now had a chance to read Portalatin closely; Judge Gleeson's work is exceptional and should be read in full by all Blakely followers.  Of particular note is how, in finding New York's discretionary persistent felony offender statute unconstitutional, Portalatin highlights (and rejects) New York's effort to take a functional approach to the reach of the Sixth Amendment:

Rosen posits a world in which factfindings necessary to imposition of an enhanced sentence -- beyond the prior convictions that render the defendant merely eligible for one -- may be allocated between judge and jury by reference to the "traditional roles" of each. As elaborated upon by Brown, in that world, offense elements or their "functional equivalents" must be submitted to juries, but "amorphous" determinations regarding a defendant’s history and character, and whether extended incarceration and life-time supervision are necessary, may properly be made by a preponderance of the evidence by judges. I accept, as I must, Brown's holding that such a world constitutes a not-unreasonable application of Apprendi, but I think it clear that it is now contrary to (and objectively unreasonable in light of) Ring and Blakely.

Though I am not sure I agree completely with Portalatin's analysis, I am sure Judge Gleeson has produced one of the strongest recent Sixth Amendment decisions.

As goes California, so goes Tennessee?

[Posted by Ron Wright]

The Cunningham case settled the applicability of Blakely to the largest "hold-out" state, California. Another remaining hold-out jurisdiction, Tennessee, is set to be resolved any time now. In State v. Gomez, the Tennessee Supreme Court held that the Tennessee “presumptive” sentencing scheme was valid because the judge retained the discretion to sentence anywhere within the range. (Background here.) Cunningham rejected that notion and so it seems inevitable that Tennessee will join California soon in Blakely land.

The ever-alert David Raybin, an attorney in Nashville who is involved in this litigation, sends in the following update:

Whatever will happen will happen soon. Gomez (05-296 ) was scheduled for conference on February 16. My own companion case State v. Guartos (06-6790) was just set for conference also on February 16. So  the worm has turned  and we should see something perhaps as early as Tuesday…. Most of us think Gomez will just be remanded but who knows what SCOTUS may do to the Tennessee Supreme Court’s “plain error” ruling.

Washington Supreme Court addresses consecutive sentencing and Blakely

Another helpful reader has sent me this report on a notable state Blakely ruling in In re Personal Restraint of VanDelft, No. 77733-1 (Wash. Nov. 30, 2006) (available here):

The Washington State Supreme Court, in a 7 - 2 decision, holds that, where a Washington state statute requires that "[f]elonies that are not serious violent offenses 'shall be served concurrently'" and that "[c]onsecutive sentences for [such] crimes may be imposed only 'under the exceptional sentence provisions of [another state statute]'", and where the trial court in this case imposed consecutive sentences based on its own, and not a jury's, findings that concurrent sentencing would "fail to hold [VanDelft] accountable for all of the crimes for which he was convicted", the defendant was sentenced in violation of Blakely.  (The Court had previously held that "[t]he conclusion that allowing a current offense to go unpunished is clearly too lenient is a factual determination that cannot be made by the trial court following Blakely".)

This ruling, in addition to being important in Washington, may dovetail with some of the issues that were debated in Burton, the Blakely retroactivity case now awaiting a decision from the Supreme Court.

The post-Blakely story in Tennessee

A helpful reader pointed me to this official website from Tennessee, which provides information about the state of that's state sentencing world in the wake of Blakely.  Here is the site's explanation of what it provides:

Pursuant to TCA §40-35-210(6)(b), the Administrative Office of the Courts is to provide statistical information as to sentencing practices for similar offenses in Tennessee.  The provided statistics are meant as an advisory guideline in sentencing.  The addition of advisory guidelines was established in the Criminal Sentencing Reform Act of 2005, which was brought about following the U.S. Supreme Court ruling in Blakely v. Washington, 124 S.Ct. 2531 (2004).

After the Blakely ruling, Governor Phil Bredesen established the Task Force on the Use of Enhancement Factors in Criminal Sentencing.  The Task Force was charged with recommending changes to remove the constitutional infirmities of Tennessee's sentencing statutes.  Upon doing so, the Task Force was further charged with monitoring the impact the 2005 Reform Act has on Tennessee's criminal justice system. Tennessee sentencing statistics and Task Force reports are available on this website.

The site includes links to this Annual Report for 2006 and lots of state sentencing statistics.

Recent related posts on Blakely in the States:

• OSJCL symposium on state sentencing after Blakely
• Indiana sorting through its Blakely fix
• A update on Blakely in Minnesota

OSJCL symposium on state sentencing after Blakely

My co-authored article urging SCOTUS to bring some order to its sentencing jurisprudence in Cunningham (discussed/linked here) is part of a symposium on state sentencing after Blakely in the (soon to go to press) Fall 2006 issue the Ohio State Journal of Criminal Law.  The other major pieces in the symposium are to be Professor Richard Frase's piece, entitled "Blakely in Minnesota, Two Years Out: Guidelines Sentencing is Alive and Well," and Chief Justice Michael Wolff's piece, entitled "Missouri's Information-Based Discretionary Sentencing System."   

I will provide links to these pieces soon.  In the meantime, you can get a taste of their insights from the introduction to the symposium that guest editor Steve Chanenson and I put together, which is entitled "The Real (Sentencing) World: State Sentencing in the Post-Blakely Era."  That intro can be downloaded below, and here is a paragraph from its start:

The symposium in this issue of the Ohio State Journal of Criminal Law seeks to ensure that the broader stories of Blakely and modern state sentencing reforms get the attention they merit. Looking ahead to future Supreme Court rulings and looking back on post-Blakely developments, contributors to this Symposium enrich our understanding of Blakely's impact and enhance the insights to be drawn from state sentencing reform efforts.

Download bermanchanenson_intro.pdf

Alaskan wisdom on Blakely and indictments

Alaska, to my great joy, continues to do great Blakely work (prior great work is linked below). Today, in  Alaska v. Dague, No. A-9054 (Alaska Ct. App. Sept 15, 2006) (available for download below, and also now at this link), the Alaska Court of Appeals held that aggravating factors that enhance a presumptive term do not have to be presented to the grand jury.

Download dague.pdf

Related posts discussing great Alaska Blakely opinions:

• Another strong Blakely opinion from Alaska
• All hail the Blakely Frontier
• Great Alaska opinion on Blakely and consecutive sentencing
• Alaska on Blakely's applicability to juvenile transfer
• Recent Alaska Blakely decisions

Indiana sorting through its Blakely fix

As detailed here, well over a year ago Indiana enacted a legislative Blakely fix that essentially adopted a Booker-type advisory guideline approach.  Left uncertain in the fix was the place of the advisory rules and appellate review in the new system. 

Thanks to posts from Marcia Oddi at the Indiana Law Blog here and here, you can catch up with the arguments over these issues, which has just come before the Indiana Supreme Court.  The Fort Wayne Journal Gazette has this effective coverage of the Indiana Supreme Court arguments.  Here is a snippet:

Indiana's Supreme Court justices wrestled Thursday with the state's new sentencing plan, which was put in place to avoid a violation of the U.S. Constitution but could lead to inconsistent prison terms for Hoosiers....

[T]he question before the court Thursday was whether judges are bound to provide any sentencing statement explaining the reasons behind a sentence, as three decades of court precedent has required.

Another strong Blakely opinion from Alaska

The story of Blakely in the states, which has been relatively calm of late, will really start heating up in the Fall when the Supreme Court two big state Blakely cases.  Usefully, Alaska continues to do great Blakely work in the interim.

On Friday, the state Court of Appeals issued Cleveland v. Alaska, No. A-9054 (Alaska Ct. App. Aug. 25, 2006) (available here), which holds that the existence of a single Blakely-compliant or Blakely-exempt aggravating factor is enough to authorize a judge to exceed the presumptive term and go all the way up to the maximum term, and that it is permissible for a judge to then find other aggravating factors under a lesser burden of proof than beyond a reasonable doubt.   As the helpful reader noted when sending me a link to this opinion, "Judge Mannheimer's decision contained an interesting explanation of the differences between the effect of aggravators in the Washington sentencing scheme at issue in Blakely and the effect of aggravators under Alaska's presumptive sentencing scheme."

Related posts discussing great Alaska Blakely opinions:

• All hail the Blakely Frontier
• Great Alaska opinion on Blakely and consecutive sentencing
• Alaska on Blakely's applicability to juvenile transfer
• Recent Alaska Blakely decisions

A update on Blakely in Minnesota

A helpful reader provided me with a detailed update on how Blakely issues are playing out in the land of 1000 grand lakes.  Here are the highlights:

In the last two months, the Minnesota Supreme Court issued two important Blakely-related decisions.  In State v. Osborne (available here), the Court held that the plain-error standard of review does not apply to Blakely errors that occurred in pre-Blakely trials; in other words, Blakely was decided while the case was on direct appeal.  The Court also held that facts underlying sentenced counts can't be used to enhance sentences on other counts.  In State v. Dettman (available here), the Court repeated its plain-error holding. The Court also held that without a knowing, intelligent, and voluntary waiver of a defendant's jury-trial rights as to the aggravating factors, the defendant's statements during his plea hearing or to the police cannot support an upward departure.

Finally, just a few days ago, the Supreme Court promulgated a new set of Rule of Procedure to deal with Blakely and sentencing jury trials. The rules of procedure can be accessed here at a "news" page that has the rules linked as word and pdf files.

Michigan Supreme Court dodges application of Blakely

It has been a while since a state supreme court has provides any Blakely fireworks.  But a helpful reader tonight sent me copies of two lengthy opinions released today from the Michigan Supreme Court in which the court dodges the application of Blakely in the state up north. Here are the basics:

People v. Drohan, No. 127489 (Mich. June 13, 2006) (available for download below):

We granted leave to appeal to consider whether Michigan's indeterminate sentencing scheme, which allows a trial court to set a defendant's minimum sentence on the basis of factors determined by a preponderance of the evidence, violates the Sixth Amendment of the United States Constitution.  Following a jury trial, defendant was convicted of one count of third-degree criminal sexual conduct, and one count of fourth-degree criminal sexual conduct. Defendant also pleaded guilty to a charge of being a third-offense habitual offender.  The trial court sentenced defendant to a term of 127 to 360 months of incarceration on the third-degree criminal sexual conduct conviction. This range was calculated by the trial court's assignment of points to defendant's "offense variable" and "prior record variable" scores under a "preponderance of the evidence" standard.  Defendant appealed his sentence, asserting that it was imposed contrary to the United States Supreme Court's decision in Blakely v Washington, 542 US 296 (2004), because the sentence was based on facts that were not determined by the jury beyond a reasonable doubt.  The Court of Appeals affirmed the conviction, relying on this Court's decision in People v Claypool, 470 Mich 715, 730 n 14 (2004).  Because we conclude that Michigan's sentencing scheme does not offend the Sixth Amendment, we affirm defendant's sentence.

Download mich_drohan_decision.pdf

People v. McCullen, No. 128161 (Mich. June 13, 2006) (available for download below):

Defendant was convicted of assault with intent to do great bodily harm less than murder following a jury trial.  The properly scored recommended minimum sentence guidelines range for defendant’s offense provided for a term of five to 28 months' imprisonment, thus placing defendant in a so-called "straddle cell." The trial court sentenced defendant within the guidelines range to two to 15 years of imprisonment. On appeal, defendant argues that because his prior record variable (PRV) score alone placed him in a recommended minimum guidelines range of zero to 11 months, he is entitled to an intermediate sanction.  Defendant contends that the trial court violated Blakely v Washington, 542 US 296 (2004), by engaging in judicial fact-finding to score the offense variables (OVs), thereby allegedly increasing his maximum sentence from an intermediate sanction to a prison term.  We reject defendant's and the dissent's contention and affirm defendant's sentence.

Download mich_mccullen_decision.pdf

The costs and consequences of Foster

Three months ago, the Ohio Supreme Court in Foster applied Blakely to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here, commentary here and here and here).  Today, the Toledo Blade has this interesting follow-up article headlined "Sentencing law prompts delays, praise: Ohio ruling means defendants being resentenced — usually to same term."  Here are some snippets:

[A] recent state Supreme Court ruling that voided the sentences imposed on Foster, Cole, and hundreds of other convicted felons statewide is costing taxpayers unknown thousands of dollars in transportation and related costs.  That's because defendants whose old sentences are affected by the ruling have to be brought back from prisons across Ohio for resentencing in the counties where they were convicted.

The time lost by court officials and judges statewide on rescheduling and resentencing the defendants, as well as the delays that result for other court matters, is virtually incalculable. And the end result appears to be an exercise in futility. Cole's trip from the Lebanon Correctional Institution in southwest Ohio, for example, resulted in the same 26-year sentence that he received seven months earlier in Lucas County Common Pleas Court.

So why go through all this trouble for what appears to be a waste of time and money? Though lower-court judges won't comment on the justices' rulings, prosecutors are offering high praise for the Ohio Supreme Court's decision.... The prosecutors say the ruling means that judges' sentences will remain intact, and they will no longer be burdened with giving detailed explanations for imposing maximum, consecutive, or more than minimum sentences.

Jeffrey Gamso, a Toledo defense attorney who is the legal director of the Ohio chapter of the American Civil Liberties Union, said the state Supreme Court, in throwing out sections of the sentencing law, has rewritten legislation that was designed to bring consistency and fairness. However, Mr. Gamso believes that overall, the defendants who appealed will receive close to or the same sentence. "The overall numbers will not change that much. Judges were pretty much giving the sentences they wanted to give, and just making the findings to justify them," he said. "The overwhelming number of inmates are getting exactly the same sentence that they got before."

Some related posts on Foster's aftermath:

• Fascinating Foster follow-up on Ohio sentencing reforms
• Further follow-up to Ohio Blakely decision
• Ohio Commission response to Foster
• Foster's impact on plea bargains and appeals
• A prosecutor's view on Foster
• A sentencing judge's view on Foster

Further follow-up to Ohio Blakely decision

Apparently news travels slowly to some parts of Ohio.  Roughly three months after the Ohio Supreme Court applied Blakely to Ohio's structured sentencing system in Foster (basics here, commentary here and here and here), the Mount Vernon News today runs this front-page article headlined "Ohio Supreme Court decision eliminates sentencing guidelines."  The paper today also has this companion article with reactions to the Foster decision from two state sentencing judges.

Curious timing aside, these articles provide an effective review of the impact of Foster and the aftermath in lower courts.  In addition, both articles have interesting quotes from the director of the Ohio Criminal Sentencing Commission. 

Some related posts on Foster:

• Clearing out the Foster pipeline in Ohio
• Ohio Supreme Court denies reconsideration in Foster
• Ohio Commission response to Foster
• Foster's impact on plea bargains and appeals
• A prosecutor's view on Foster
• A sentencing judge's view on Foster
• Fascinating Foster follow-up on Ohio sentencing reforms

Washington Supreme Court address Blakely and minimums

The Washington Supreme Court today in State v. Clarke, No. 76602-9 (Wash. May 11, 2006) addresses the constitutionality of an "exceptional minimum sentence under Blakely."  The 7-2 ruling affirms the defendant's sentence, and the majority opinion (available here) has this start:

After two juries convicted John Mark Clarke of two counts of second degree rape, the sentencing court imposed a maximum sentence of life imprisonment as required by statute.  The sentencing court also imposed an "exceptional minimum sentence," which is a sentence in excess of the standard sentence range for the crimes charged, based on two aggravating factors.  Clarke challenges the constitutionality of his exceptional minimum sentence under Blakely v. Washington, 542 U.S. 296(2004).  We hold that Blakely does not apply to an exceptional minimum sentence imposed under RCW 9.94A.712 that does not exceed the maximum sentence imposed and affirm the Court of Appeals.

The dissent in Clarke (available here) begins this way:

The majority concludes a judge may impose an exceptional minimum sentence on the basis of an aggravating factor neither found by the jury nor admitted by the defendant.  I disagree.  The Sixth Amendment prohibits a judge from imposing a penalty not authorized by the facts found by the jury or admitted by the defendant. See Blakely v. Washington, 542 U.S. 296 (2004).  An exceptional minimum sentence is a penalty.  And under Washington law, a judge may impose an exceptional minimum sentence only if an aggravating factor exists.  Consequently, a judge cannot impose an exceptional minimum sentence on the basis of an aggravating factor neither found by the jury nor admitted by the defendant.

Clearing out the Foster pipeline in Ohio

Today brings a (final?) development in the saga of Blakely's application to Ohio's sentencing law.  Recall that, a few months ago, the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here, commentary here and here and here).  Today, as revealed in this order, the Ohio Supreme Court disposed of 249 Foster cases on its docket by remanding them all to trial courts for resentencing. 

I wonder if anyone will track the outcomes in these cases upon resentencing.  Resentencing data for these cases would provide one interesting guage of how Foster might impact sentencing in Ohio.

Some recent related posts on Foster:

• Ohio Supreme Court denies reconsideration in Foster
• Ohio Commission response to Foster
• Foster's impact on plea bargains and appeals
• A prosecutor's view on Foster
• A sentencing judge's view on Foster
• Fascinating Foster follow-up on Ohio sentencing reforms

Two significant Blakely rulings from Colorado

Thanks to a helpful reader tip, I learned that today the Colorado Supreme Court issued two significant Blakely ruling dealing with (1) the prior conviction exception, and (2) proper Blakely admissions. Here are the basics:

• People v. Huber, No. 05SC40 (Colo. Apr. 24, 2006) (available here) ("Trial court did not violate Defendant's Blakely rights by sentencing him in the aggravated range based on prior conviction facts.")

• People v. Isaacks, No. 05SC87 (Colo. Apr. 24, 2006) (available here) ("The Supreme Court affirms the court of appeals, holding that a defendant's failure to make corrections or additions to his presentence report when asked by the court does not constitute an admission that supports aggravated sentencing under Blakely and Lopez unless the defendant knowingly, voluntarily, and intelligently waives his right to jury trial on the facts contained in the presentence report.")

Ohio Supreme Court denies reconsideration in Foster

As detailed in posts here and here, after the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy, the Foster defendants and a supporting amicus filed for reconsideration claiming that the retroactive application of the remedy was unconstitutional.  As detailed at the end of this order document, the Ohio Supreme Court today denied the motions for reconsideration in Foster (and the companion case Quinones).

I suspect that a cert petition (and/or habeas petitions?) may be the next battle ground for debating Blakely in Ohio.

Some recent related posts on Foster:

• Ohio Commission reponse to Foster
• Foster's impact on plea bargains and appeals
• A prosecutor's view on Foster
• A sentencing judge's view on Foster
• Fascinating Foster follow-up on Ohio sentencing reforms

Ohio Commission reponse to Foster

David Diroll, the executive director of the Ohio Criminal Sentencing Commission, was kind enough to send me a copy of his Commission's formal staff response to the Ohio Supreme Court's big recent Blakely decision.  (I have done a lot of coverage of the Foster decision, much of which can be found linked in posts here and here.)   This memo, which can be downloaded below and was sent to Ohio's felony and appellate judges, has this comical opening:

Did you hear the one about the defendant whose right to a jury trial was vindicated by giving judges more power?  Welcome to the sentencing world wrought by the United States Supreme Court’s decisions in Apprendi v. New Jersey, Blakely v. Washington, and U.S. v. Booker and the Ohio Supreme Court's recent effort to make sense of them in State v. Foster and State v. Mathis.

Download ocsc_on_foster.doc

In addition, David sent me an e-mail which provided this interesting report on post-Foster developments the prosects for a "Foster legislative fix" in the near future:

As of now, the only direct legislative response to Foster is a bill being drafted for Rep. Bob Latta that simply strikes the offending language (per Foster) from key sentencing statutes. It does nothing to tackle sentencing consistency or other issues.  If enacted, it would merely make the statutes reflect the opinion, easing confusion among practitioners.  We have nothing more ambitious in the works at present, but are watching and weighing things.

At a glance, most current sentencing is in line with pre-Foster patterns.  But there are anecdotal examples of judges who are using maximum and consecutive terms in more situations (always mindful, of course, of the defendant's right to a jury trial).

If the legislature returns to larger sentencing issues, it probably will occur next session (2007-08). They simply won't be around much until November's lame duck session.

Blakely plain error in Oregon

The story of Booker plain error in the federal system has been amazing to watch, though slowly but surely the issue has been sorted out (differently) in each circuit.  This newspaper article from Oregon serves as a reminder that the states have had their own plain error issues to sort through in Blakely's wake.  Reporting on the last of a series of plain error rulings, the article explains that the Oregon Supreme Court has decided "that defendants cannot object to their prison sentences on appeal if judges increased their sentences based on aggravating factors ... if defendants failed to object to them at the time of sentencing."  The latest of these decisions came yesterday in State v. Perez, No. S52267 (Ore. Mar. 30, 2006) (available here).

Opposition to cert petition urging offense-offender Blakely distinction

As detailed in this post, in seeking cert on a state Blakely case, the Minnesota Attorney General is arguing to the Supreme Court in Minnesota v. Allen that Blakely should be "limited to facts related to the offense itself."  I have an affinity for this argument because, as I have explained in recent articles, I think the Sixth Amendment should be interpreted to distinguish between offense conduct and offender characteristics.  But, because this offense-offender distinction has never been embraced by SCOTUS, I recognize that this approach to Blakely would mark something of a shift in the Court's approach to these issues (although it would conceptually justify the otherwise questionable "prior conviction" exception).

The defendant's brief in opposition to cert in Allen (which can be downloaded below) makes a strong argument that an offense-offender approach to the Sixth Amendment would mark a significant change in the Court's jurisprudence.  Here is the opening of the effective brief in opposition in Allen:

The petition should be denied for at least three reasons: first, there is no split of lower-court authority for the Court to resolve on the issue on which petitioner seeks certiorari; second, the rule proposed by petitioner would run afoul of years of Supreme Court precedent; and third, this case is not the proper vehicle for addressing petitioner's concerns.

Download minnesota_v. allen BIO.pdf

Some related posts:

• Conceptualizing Blakely
• Conceptualizing Blakely (again)
• More academic thoughts on the offense/offender distinction
• Minnesota working on offense/offender idea
• Major Minnesota Blakely ruling
• Minnesota urging SCOTUS to embrace offense-offender Blakely distinction

Arizona Supreme Court addresses "admissions" for Apprendi/Blakely purposes

Proving yet again that state courts often give more attention and respect to Blakely issues than their federal counterparts, the Arizona Supreme Court late last week issued a thoughtful and thorough opinion on Blakely "admissions" in State v. Brown/McMullen, No. CV-05-0263-PR (Ariz. Mar. 16, 2006) (available here).  Though arising through a procedurally complicated setting, the issue and the court's unanimous ruling are clear:

The issue in this case is whether a defendant's statements during a plea colloquy relieve the State of its obligation under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny to prove aggravating factors to a jury.  We conclude that the Sixth Amendment requires that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," id. at 490, unless a defendant has knowingly, voluntarily, and intelligently waived his right to jury trial with respect to aggravating factors....

In short, we hold that the Sixth Amendment right to jury trial with respect to an aggravating factor necessary to impose a sentence remains inviolate unless the defendant's plea of guilty necessarily establishes the aggravating factor (because the facts admitted are elements of an offense to which the defendant has pled guilty) or the defendant has appropriately waived his right to jury trial with respect to these aggravating factors.

Foster's impact on plea bargains and appeals

The Athens News has this terrific article discussing the Ohio Supreme Court's Foster decision, which found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy.  The article does a particularly good job examining Foster's likely impact on plea bargaining and appellate review.

Some recent posts on Foster:

• Ohio applies Blakely and the Booker remedy!
• What is exactly the Blakely remedy in Ohio?
• Who wins from a Booker remedy?  It depends.
• A prosecutor's view on Foster
• A sentencing judge's view on Foster
• Fascinating Foster follow-up on Ohio sentencing reforms

Ohio AG response to reconsideration motion in Foster

State Blakely fans may recall that, after the Ohio Supreme Court in Foster found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy (basics here), the Foster defendants and a supporting amicus filed for reconsideration in the Ohio Supreme Court claiming that the retroactive application of the remedy was unconstitutional.  (All the details are here.)  Today, the Ohio Attorney General filed a potent amicus brief with the Ohio Supreme Court explaining why it believes the motion for reconsideration is all washed up.  You can download this brief here:

Download foster_memorandum_amicus_curiae_opposing_motion_for_reconsideration.pdf

Recent posts on Foster:

• Ohio