Monday, August 03, 2009
SCOTUS Ice ruling undercuts Ohio defendant's habeas claim
The Sixth Circuit issued an intriguing little habeas ruling today in Evans v. Hudson, No. 08-3717 (6th Cir. Aug. 3, 2009) (available here). Here is how it starts:
Respondent-Appellant Stuart Hudson (“Hudson”), the warden of Mansfield Correctional Institution, appeals the district court’s grant of a conditional writ of habeas corpus to Petitioner-Appellee Glen Evans (“Evans”), requiring the state of Ohio to resentence Evans within 90 days or release him. Hudson contends that the district court erred in concluding that Evans received ineffective assistance of appellate counsel because appellate counsel failed to raise, during Evans’s direct appeal, a claim under Blakely v. Washington, 542 U.S. 296 (2004), regarding Evans’s sentence to consecutive terms of imprisonment. For the reasons discussed below involving the Supreme Court’s recent decision in Oregon v. Ice, — U.S. —, 129 S. Ct. 711 (2009), we REVERSE the district court’s grant of habeas relief.
Thursday, July 30, 2009
"Mandatory Sentencing Guidelines by Any Other Name: When 'Indeterminate Structured Sentencing' Violates Blakely v. Washington"
The title of this post is the title of this new article available via SSRN by Bradley Hall. Here is the abstract:
While striking down Washington's mandatory sentencing guidelines scheme in Blakely v. Washington, the Supreme Court made clear that '[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment . . .’ and the judge exceeds his proper authority.' Conversely, the Court approved of sentencing schemes that do not employ mandatory sentencing guidelines based on judicial fact-finding, but instead vest judges with full sentencing authority at the moment of conviction, i.e., schemes in which judge-found facts are not 'essential to the punishment.'
The Court imprecisely referred to these unproblematic schemes, however, as 'indeterminate,' apparently borrowing from another characteristic common to the nonguideline sentencing schemes that were widespread prior to the 1980s: the idea that a defendant’s actual time in custody is not “determined” solely by the sentencing judge, but depends in part upon nonjudicial factors, typically an executive branch parole board.
A careful examination of its earlier precedents reveals that the Supreme Court has never been concerned with the existence of a parole board when it has used the term 'indeterminate.' Rather, the Court’s sole concern has been whether a sentencing scheme employs mandatory sentencing guidelines that narrow a judge’s sentencing discretion.
Buoyed by the Supreme Court’s acceptance of 'indeterminate sentencing' in an otherwise confusing post-Blakely landscape, but without the least bit of thought as to what the Court actually meant by the term, some state courts have found that any sentencing regime employing a parole board, and therefore meeting the dictionary definition of 'indeterminate,' withstands constitutional scrutiny. The Michigan and Pennsylvania courts have led the way. Those states employ what Steven Chanenson has aptly called 'Indeterminate Structured Sentencing' (ISS) schemes because they include both a parole component (they are 'indeterminate') and a sentencing guidelines component (they are 'structured').
In upholding these schemes, the state courts’ primary concern has been the 'indeterminate' side of this equation, but this Article argues that it is the form of the 'structure,' rather than the presence of a parole board, that governs the Blakely analysis. Specifically, when indeterminate (parolable) sentencing involves mandatory sentencing guidelines, as in Michigan, it runs afoul of Blakely. Although a sentence in Michigan takes the form of a parolable range, leaving an additional layer of discretion to a parole board, the range often increases in severity based on judge-found facts. Thus, judges are regularly required to 'inflict punishment that the jury’s verdict alone does not allow . . . .'
Tuesday, July 28, 2009
Ohio Supreme Court blesses retoractive application of its response to Blakely
As detailed this official summary, the "Ohio Supreme Court on Tuesday upheld the constitutionality of a criminal sentencing decision it made in 2006, rebuffing the claims of a defendant who argued the ruling violated his rights to a jury trial and due process." The full ruling in Ohio v. Elmore, No. 2009-Ohio-3478 (Ohio July 28, 2009), is available at this link, and here is how the official summary starts:
The Supreme Court of Ohio ruled today that the resentencing of criminal offenders pursuant to the Court’s February 27, 2006 decision in State v. Foster for crimes committed before that date does not violate offenders’ Sixth Amendment right to a jury trial or their rights under the Ex Post Facto or Due Process clauses of the U.S. Constitution.
In a 7-0 decision authored by Justice Judith Ann Lanzinger, the Court also held that a trial court resentencing an offender pursuant to Foster is not required to impose the minimum prison term for each offense for which the defendant was convicted, and has discretion to order that sentences for multiple convictions be served either concurrently (at the same time) or consecutively (one after the other).
In this local article concerning the ruling, the defendant's lawyer indicates he is eager to appeal this ruling to the US Supreme Court:
Keith Yeazel, Elmore's attorney, said he will recommend to his client that he appeal the Ohio Supreme Court's decision to the U.S. Supreme Court. Yeazel said the U.S. Supreme Court has found that no more than the minimum sentence can be applied unless additional evidence is considered.
He also said Ohio law directs judges to issue concurrent sentences except under certain conditions."The Ohio Supreme Court has decided that they don't want to do what the Ohio General Assembly said they should do," Yeazel said.
Friday, February 27, 2009
Alaska Supreme Court rejects Blakely retroactivity claim
Thanks to a helpful reader, I learned that the Alaska Supreme Court today issued a big ruling reversing a lower court determination that Blakely should be given retroactive application. Here is how the opinion in Alaska v. Smart, No. S-12493 (Ak. Feb. 27, 2009) (available here) gets started:
The question presented in these two cases is whether the right to a jury trial announced in Blakely v. Washington should be retroactively applied to two state defendants, Troy Smart and Henry Douglas, whose sentences were final before June 24, 2004, when Blakely was decided. Blakely requires that any fact — except a fact admitted by the defendant or the fact of a prior conviction — necessary to increase a sentence above the statutory presumptive maximum be proved to a jury beyond a reasonable doubt. We decline to give Blakely full retroactivity. We conclude that the purpose of Blakely does not raise serious questions about the accuracy of past sentences and must be weighed against the state’s reliance on the old rule for over twenty years and the administrative burden of implementing the new rule retroactively. We therefore reverse the rulings of the court of appeals in these two cases and remand.
Wednesday, February 25, 2009
New York's highest court rejects again Sixth Amendment challenge to its persistent felony offfender law
A helpful reader alerted me to a new opinion from the New York Court of Appeals, which turns down yet again a Sixth Amendment attack on New York's persistent felony offender sentencing scheme. Here is how the unanimous opinion in NY v. Quinones, No. 14 (N.Y. Feb. 24, 2009) (available here), gets started:
This appeal presents another Apprendi challenge to New York’s discretionary persistent felony offender sentencing scheme. The primary issue before us is whether, in light of Cunningham v California (549 US 270 ), this sentencing scheme violates Apprendi and defendant’s due process and Sixth Amendment rights. We again uphold the constitutionality of New York’s discretionary persistent felony offender sentencing scheme and further hold that defendant’s constitutional rights were not violated.
Significantly, this latest Quinones ruling from the New York Court of Appeals does not address or even mention the federal habeas ruling in Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here), in which EDNY District Judge John Gleeson essentially disagreed with a New York's state court decision that the state's discretionary persistent felony offender statute is constitutionally sound (discussed here).
In Portalatin, Judge Gleeson concluded that the Supreme Court's work in Cunningham confirmed the unconstitutionality of New York's law. But in Quinones the New York Court of Appeals reads Cunningham and Ice to confirm its prior conclusion that there are no constitutional problems with New York's sentencing structure. Assuming the defendant in Quinones seeks cert., it is interesting to speculate as to whether this state/federal split of authority might lead the Justices to make yet another trip into the crazy mixed-up world that is Apprendi-land.
Thursday, January 08, 2009
Notable Ohio Supreme Court ruling on constitutionality of "blended" juve sentences
As detailed in this official press release, today the Ohio Supreme Court issued a notable discussion on the constitutionality of the state's use of "blended" sentences for juvenile offenders convicted of serious crimes. Here are the basics:
The Supreme Court of Ohio ruled today that in cases where a juvenile is charged as a “serious youthful offender,” a section of state law authorizing a juvenile judge, rather than a jury, to consider certain factors in determining whether to impose a “blended” juvenile and adult sentence does not violate the defendant’s jury trial rights under the U.S. or Ohio constitutions.
In a 7-0 decision authored by Justice Paul E. Pfeifer, the Court also held that, in serious youthful offender cases where sentencing took place prior to this Court’s 2006 decision in State v. Foster, constitutional jury trial rights do not apply to findings made by a juvenile court under Ohio’s adult felony sentencing statutes in imposing the adult portion of a blended sentence.
Under R.C. 2152.13, an Ohio juvenile judge sentencing a “serious youthful offender” (a minor convicted of an offense that would constitute a violent felony if committed by an adult) is authorized to make factual findings to determine whether the defendant should receive a “blended” sentence that includes not only a normal juvenile sentence but also a stayed term of adult imprisonment....
Writing for the Court in today’s decision, Justice Pfeifer pointed to the U.S. Supreme Court’s ruling in McKeiver v. Pennsylvania (1971) and this Court’s holding in In re Agler (1969) that because the fundamental objectives of juvenile proceedings are different than those of an adult criminal prosecution, juvenile offenders do not have a constitutional right to have their cases decided by a jury. He noted, however, that because juveniles like D.H. who are charged under Ohio’s serious youthful offender statute face the potential imposition of an adult sentence, this case differed in an important respect from the cases of the juveniles in McKeiver and Agler, and thus merited separate consideration.
By giving minors charged as serious youthful offenders the right to have their guilt or innocence determined by a jury, but vesting juvenile judges with discretion to impose an appropriate sentence, Justice Pfeifer found that Ohio’s statutory scheme balances the due process rights of defendants with the state’s strong public interest in rehabilitating delinquent children.
The State v. D.H., No. 2009-Ohio-9, can be accessed at this link. Because Ohio's "blended" sentencing law is a unique creation, I am not sure this case had broad enough appeal to garner Supreme Court attention if DH were to appeal. Nevertheless, these are really interesting constitutional issues that ought to interest not only sentencing fans, but also anyone concerned about juvenile justice.
Tuesday, June 24, 2008
Tennessee Supreme Court turns back Blakely challenges to consecutive sentencing
The Tennessee Supreme Court today in State v. Allen (Tenn. June 24, 2008) (available here), turns back two defendants' argument that Apprendi and Blakely limit judicial fact-finding to support the imposition of consecutive sentences. Here is a key paragraph at the start of the Court's analysis:
In Defendant Lumpkin’s case, the trial court ordered partial consecutive service after finding Lumpkin to be a “dangerous offender.” See Tenn. Code Ann. § 40-35-115(b)(4). In Defendant Allen’s case, the trial court ordered partial consecutive service after finding Allen to be “an offender whose record of criminal activity is extensive” and a “dangerous offender.” Id. § 40-35-115(b)(2), (4). Both Defendants argue that the imposition of consecutive sentences on the basis of these judicially-determined facts violates their federal constitutional rights as explicated in Apprendi and Blakely. The Defendants point to the Supreme Court’s statement in Blakely that “[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment’ and the judge exceeds his proper authority.” Blakely, 542 U.S. at 304 (citation omitted). The Defendants contend (1) that their effective terms of service, arrived at by adding together their consecutive sentences for separate offenses, is the punishment on which we must focus and (2) that the cumulative punishment they are facing could not have been imposed absent post verdict factual findings by the trial court; ergo, in violation of Blakely’s holding. As Defendant Lumpkin’s counsel puts it, “[t]he facts necessary to sustain the imposition of consecutive sentencing in this case are not included within the jury’s verdict of guilt of the individual offenses.” As set forth below, however, we are persuaded that neither Apprendi nor Blakely apply to a trial court’s post-verdict findings and decisions about the manner in which a defendant serves his discrete sentences for multiple offenses.
The Tennessee Supreme Court acknowledges that the US Supreme Court will be taking up this issue next Term in Oregon v. Ice, and the Allen opinion provides a nice primer on the debate that the SCOTUS Justices will have sort through.
Monday, April 07, 2008
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.
Friday, February 15, 2008
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.
Wednesday, February 13, 2008
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.
Thursday, December 20, 2007
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."
Friday, December 07, 2007
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."
Saturday, November 10, 2007
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).
Sunday, October 28, 2007
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.
Thursday, October 18, 2007
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.
Thursday, 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.
Wednesday, August 29, 2007
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.
Wednesday, August 01, 2007
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.
Sunday, April 01, 2007
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.
Monday, February 19, 2007
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.