Tuesday, August 22, 2006

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.

August 22, 2006 in Blakely in the States | Permalink | Comments (0) | TrackBack

Tuesday, June 13, 2006

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

June 13, 2006 in Blakely in the States | Permalink | Comments (10) | TrackBack

Monday, May 29, 2006

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:

May 29, 2006 in Blakely in the States | Permalink | Comments (1) | TrackBack

Wednesday, May 24, 2006

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:

May 24, 2006 in Blakely in the States | Permalink | Comments (1) | TrackBack

Thursday, May 11, 2006

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.

May 11, 2006 in Blakely in the States | Permalink | Comments (2) | TrackBack

Wednesday, May 03, 2006

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:

May 3, 2006 in Blakely in the States | Permalink | Comments (1) | TrackBack

Monday, April 24, 2006

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:

April 24, 2006 in Blakely in the States | Permalink | Comments (1) | TrackBack

Wednesday, April 12, 2006

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:

April 12, 2006 in Blakely in the States | Permalink | Comments (0) | TrackBack

Wednesday, April 05, 2006

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.

April 5, 2006 in Blakely in the States | Permalink | Comments (3) | TrackBack

Friday, March 31, 2006

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).

March 31, 2006 in Blakely in the States | Permalink | Comments (0) | TrackBack

Tuesday, March 21, 2006

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:

March 21, 2006 in Blakely in the States | Permalink | Comments (1) | TrackBack

Monday, March 20, 2006

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.

March 20, 2006 in Blakely in the States | Permalink | Comments (2) | TrackBack

Friday, March 17, 2006

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:

March 17, 2006 in Blakely in the States | Permalink | Comments (5) | TrackBack

Wednesday, March 15, 2006

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:

March 15, 2006 in Blakely in the States | Permalink | Comments (1) | TrackBack

Friday, March 10, 2006

A local perspective on Foster

This short piece in the Marietta Times entitled "New sentencing rule felt locally" provides additional local perspective on the possible impact of the Ohio Supreme Court's recent Foster ruling, which found Blakely applicable to Ohio's structured sentencing system and adopted a Booker-type remedy.  Here is the article's lead: "Recent changes to Ohio's law, which call for the resentencing of hundreds of convicted felons, is expected to be a drag on local courts for some time, but lead to tougher penalties for some offenders."

Recent posts on Foster:

March 10, 2006 in Blakely in the States | Permalink | Comments (0) | TrackBack

Thursday, March 09, 2006

Minnesota urging SCOTUS to embrace offense-offender Blakely distinction

In writings since Blakely, I have argued that the Sixth Amendment ought to be interpreted to distinguish between offense conduct and offender characteristics.  In the article Conceptualizing Blakely, 17 Fed. Sent'g Rep. 89 (2004) (available here), I explain most fully why I think the text of the Constitution "connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment." 

I am now pleased to report that, in seeking cert on a state Blakely case, the Minnesota Attorney General is arguing to the Supreme Court that Blakely should be "limited to facts related to the offense itself."  Needless to say, I am convinced by the well-crafted argument in favor of an offense-offender distinction put forward by Minnesota in its cert petition in State v. Allen (which is available for download below).  But only time will tell if SCOTUS is interested in this case or the distinction.  Here are Minnesota's reasons for granting the petition in Allen:

This case presents this Court with an opportunity to answer an important question on which lower courts are split: Does Blakely only apply to facts about the crime that affect sentencing (offense-related facts, e.g., whether a gun was used in the crime)?  Or does it apply more broadly to include facts about the perpetrator (offender-related facts, e.g., whether the offender is amenable to probation)?

That this is an important question cannot be seriously disputed: the answer will have a direct and significant effect on numerous states, and will have an indirect effect on every legislative body considering sentencing reform.  Further, in reading Blakely expansively and rejecting any distinction between offender-related and offense-related facts, the Minnesota Supreme Court ignored both the plain language of the United States Constitution and Blakely's animating principle.

Download minn_cert_petition_in_allen.pdf

Some related posts:

March 9, 2006 in Blakely in the States | Permalink | Comments (6) | TrackBack

Wednesday, March 08, 2006

En banc Pennsylvania court upholds state sentencing scheme over Blakely challenge

Contributing to another yet another fascinating state Blakely day, the Superior Court of Pennsylvania, sitting en banc, has ruled that the state's guideline sentencing system is constitutionally sound.  Here is the opening of the majority's ruling in Commonwealth v. Kleinicke, No. 986 MDA 2003 (Sup. Ct. Pa. Mar. 8, 2006) (available for download below):

In this appeal, we consider whether Appellant's sentence violated the Supreme Court's pronouncements in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). After careful review, we conclude that the principles for which these cases stand were not implicated because 18 Pa.C.S. § 7508 merely increased the minimum sentence and not Appellant's maximum term of imprisonment.

The ruling generated two notable and interesting dissents.  When I get a chance to read all 71 pages, I hope to follow-up with commentary.  In the meantime, Keystone State lawyers (and any state Blakely fans) are highly encouraged to weigh in on Kleinicke.

Download pa_blakely_case_kleinicke.pdf

March 8, 2006 in Blakely in the States | Permalink | Comments (8) | TrackBack

Ohio defenders seek reconsideration of Foster's retroactive application

Today brings an interesting development in the saga of Blakely's application to Ohio's sentencing law.  Recall that last week, 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).  Now, the Foster defendants and a supporting amicus have filed for reconsideration in the Ohio Supreme Court claiming that the "retroactive application of this case's remedy to persons who committed their criminal offenses prior to the release of the Opinion, violates clearly established United States Supreme Court precedent regarding ex post facto and due process."

I have provided links to two briefs filed in support of this motion for reconsideration.  Here is a portion of the argument summary from Amicus Curiae Cuyahoga County Public Defender:

Your amicus' argument against retroactive application to persons who committed their offenses prior to 9:00 a.m. on February 27, 2006, can be summarized as follows. At the time of the offense conduct, the criminal defendant enjoyed, as a standard range of punishment, a presumptive sentence of minimum and concurrent terms of imprisonment; a trial judge could only overcome that presumption by making statutorily prescribed findings. This Court correctly held that, because the trial judge and not a jury was entrusted with making these findings, the statutory scheme violated the Sixth Amendment right to trial by jury as interpreted by Blakely. In its opinion in the instant case at “Part V. Remedy,” ¶¶ 84-102, this Court has eliminated the presumptive sentence, thus relieving the trial judge of having to make any findings whatsoever before imposing a sentence at any point in the statutory range and before ordering terms of imprisonment to be served consecutively to one another.

Applied prospectively, this Court's employment of severance to save the statutory scheme from an unconstitutional interpretation, as a general matter, does not violate ex post facto and the due process considerations attendant thereto.  However, when applied to those persons whose crimes were already committed, this Court's remedy unconstitutionally changes the rules to the defendant's detriment by stripping defendants of the protections of the presumptions discussed above.  Just as the General Assembly could not amend the statutory scheme in this manner and legislate that the new scheme apply to those whose crimes have already been committed, this Court is precluded from doing the same.

Download FosterReconsiderationMotion.pdf

Download FosterAmicusReconsiderationMemo.pdf

UPDATE: The ACLU of Ohio has also filed a brief seeking reconsideration of the Foster remedy.  The ACLU brief, which can be downloaded below, stresses separation of powers concerns.  Here is a snippet:

The ACLU files this supporting brief as amicus to address [its] concern that ... Foster violates the separation of powers by usurping the legislative function specifically and exclusively allocated to the General Assembly.

Download aclu_foster_blakelybooker_recon_amicus.pdf

March 8, 2006 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, March 06, 2006

Fascinating Foster follow-up on Ohio sentencing reforms

I continue to be fascinated by reactions to the Ohio Supreme Court's recent big Blakely decision in Foster.  Today the Cincinnati Enquirer, which had the best initial Foster coverage, has this fascinating follow-up article [Update: link fixed] that further examines the impact of Foster and the overall state of sentencing reform in Ohio.  Here are some snippets from an article that is today's must-read for serious students of sentencing reform:

Ohio lawmakers set ambitious goals 10 years ago when they rewrote the rules on how criminals are sentenced to prison....  A decade later, many of those reforms are gone or are in jeopardy....  The result is a system that's confusing and unpopular.  Judges complain that the system is needlessly complicated, offenders have challenged it in court, and prosecutors say it's soft on crime....

[J]udges praised the [Ohio] Supreme Court's [Foster] ruling last Monday, saying it will lead to tougher sentences.  Defense lawyers say it made a bad situation worse.  Differences aside, most agree the system remains flawed. "We've got to get back to fixing sentencing reform," state Rep. Bill Seitz, R-Green Township, said.  "But it's not something you start on Monday and finish on Tuesday."...

David Diroll helped draft the reforms 10 years ago as executive director of the Ohio Criminal Sentencing Commission.  He said the reforms took a hit from the Supreme Court but are still alive.  He said judges could consider the guidelines as "advisory," in the same way federal judges now use similar guidelines.... Diroll said such an approach in Ohio would preserve one of the fundamental goals of sentencing reform: consistency. "We just have to see whether the judges stay within the basic norms, the constraints, or whether it's open season," Diroll said.

Legislators say they will likely revisit sentencing reform soon.  They're just not sure how many changes they'll make.

Recent posts on Foster:

March 6, 2006 in Blakely in the States | Permalink | Comments (2) | TrackBack

Thursday, March 02, 2006

A sentencing judge's view on Foster

I noted here and here some prosecutor and defense reactions to the Ohio Supreme Court's recent big Blakely decision in Foster (basics here, commentary here and here and here).  For more telling perspectives, check out this article from the Youngstown Vindicator entitled "Law change pleases judge."  Here is a taste:

Judge R. Scott Krichbaum of Mahoning County Common Pleas Court says he's pleased that he no longer has to "jump through a flaming hoop" when giving criminals sentences that he deems appropriate... "I think it's about time," Judge Krichbaum said.  "It is finally a return to allowing judges to be judges, to allow us to execute our duties as elected individuals as opposed to the computerized, plasticized Stepford wives they've tried to make us into."...

"The courts and the Legislature were putting form over substance," says Mahoning County Prosecutor Paul J. Gains. If judges didn't make findings and record them in their journal entries, Gains said their sentences were at risk to be reversed in appeals court.  Now, "the courts will have more latitude when a defendant deserves more prison time," Gains said.

March 2, 2006 in Blakely in the States | Permalink | Comments (3) | TrackBack

A call for Blakely-ization in Ohio

In Foster, the Ohio Supreme Court's big Blakely decision earlier this week (basics here, commentary here and here and here), the court adopted a remedy that "Booker-ized" Ohio's sentencing laws by severing statutory requirements for enhanced sentences.  Interestingly, in this follow-up editorial, the Cincinnati Enquirer has called for a legislative response that would bring jury trial rights to Ohio sentencing:

The [Foster] court made it clear that a legislative remedy is needed.  In fact, justices came as close as they could to telling the General Assembly what to do without appearing to tell it what to do: "(T)he General Assembly may enact legislation to authorize juries to find beyond a reasonable doubt all facts essential to punishment in felony cases, but it has not yet done so," Lanzinger wrote.  Also, "it may well be that in the future the Ohio Criminal Sentencing Commission may recommend Blakely-compliant statutory modifications ..."

Get the hint, lawmakers?  The General Assembly should get busy and fix Ohio's felony sentencing laws now.

March 2, 2006 in Blakely in the States | Permalink | Comments (0) | TrackBack

Wednesday, March 01, 2006

A prosecutor's view on Foster

I discussed in this post why prosecutors are celebrating (and defense attorneys are lamenting) the Ohio Supreme Court's big Blakely decision in Foster (basics here, commentary here), which decided to "Booker-ize" Ohio's sentencing laws by severing statutory requirements for enhanced sentences.  To reinforce these realities, today I received (and got permission to post) a memorandum from a state county prosecutor's office discussing Foster.  The memo, which can be downloaded below, provides helpful background on the Foster case and why it (and the companion Mathis case) has prosecutors so happy.  Here are some telling snippets from the memo:

The [Ohio] Supreme Court concluded: (1) Judicial factfinding is not required before a prison term may be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant. Foster at 38. (2) Judicial factfinding is not required before imposition of consecutive prison terms. Id. (3) Judicial factfinding is not required before imposition of additional penalties for repeat violent offenders and major drug offenders. (4) Trial courts have full discretion to impose a prison term within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentence. Foster at 39....

[B]oth cases were unanimous decisions with Justice Resnick concurring in the paragraphs that are most pro-prosecution....  In my opinion, the background of those Supreme Court judges who formerly were common pleas court judges shines through the decision.

Good luck and unless the United States Supreme Court overrules Foster and Mathis our jobs and the jobs of our terrific secretaries will be easier.  Justice prevailed!

Download prosecutor_memo_on_ohio_sct_ruling.doc

March 1, 2006 in Blakely in the States | Permalink | Comments (13) | TrackBack

Tuesday, February 28, 2006

Coverage of Ohio Blakely ruling

Yesterday's AP story on the Ohio Supreme Court's big Blakely decision in Foster (basics here, commentary here) just barely covered the essentials.  But this morning, all of the local Ohio papers provide much fuller and more effective coverage.  This article in the Cincinnati Enquirer is especially effective, with background on Ohio law and the Foster ruling, lots of quote from key players, and this effective summary:

The decision technically is a victory for defendants who had argued that the guidelines were unfair because they allowed judges to impose sentences based on evidence not considered by a jury.  But by throwing out the old rules, the Supreme Court gave judges much more power to sentence criminals as they choose.  Prosecutors and defense attorneys say that's bad news for defendants.

Additional effective coverage appears in the Columbus Dispatch, the Cleveland Plain Dealer, and the Akron Beacon Journal.

February 28, 2006 in Blakely in the States | Permalink | Comments (0) | TrackBack

Monday, February 27, 2006

What is exactly the Blakely remedy in Ohio?

Upon a quick read, I was impressed with many parts of the Ohio Supreme Court's decision today in Foster, the state's big Blakely case (basics here), and not only because this blog got a nice plug in footnote 3 (details here).  Portions of the opinion were thoughtful, especially when the Court surveys the basics of Ohio law and the national post-Blakely landscape in the states.

However, when the Blakely rubber hits the Ohio sentencing road, Foster becomes far less appealing.  Some reasons for concern about Foster are already effectively detailed by commentors here, and for me the big head-scratcher is the exact remedy adopted by the Ohio Supreme Court.  Though it is clear that Foster did not adopt or endorse a remedy incorporating jury findings into Ohio's sentencing scheme, it is not at all clear exactly what remedy Foster did adopt or endorse.

The key remedy discussion of the Foster opinion, starting at page 36, carries the heading "Applying the Booker remedy."  However, the discussion that follows does not state or even suggest that the previously mandatory findings required by Ohio law are now advisory.  Likewise, the Foster opinion does not embrace or even suggest that appellate review for reasonableness (or for anything else) is now a component of Ohio's sentencing system.

A little more guidance emerges from the companion decision Mathis, and especially through this final paragraph:

Although after Foster, the trial court is no longer compelled to make findings and give reasons at the sentencing hearing since R.C. 2929.19(B)(2) has been excised, nevertheless, in exercising its discretion the court must carefully consider the statutes that apply to every felony case.  Those include R.C. 2929.11, which specifies the purposes of sentencing, and R.C. 2929.12, which provides guidance in considering factors relating to the seriousness of the offense and recidivism of the offender.  In addition, the sentencing court must be guided by statutes that are specific to the case itself.

I read this opaque paragraph as suggesting the mandates of Ohio's statutory sentencing system remains important now as an advisory system, although other parts of Mathis raise doubts about whether the Ohio sentencing system preserves any serious role for appellate review.

February 27, 2006 in Blakely in the States | Permalink | Comments (10) | TrackBack

Blogs as scholarship and a nice plug

Thanks to Howard, I see that this week's issue of The National Law Journal has this interesting article entitled "Blogging law profs assault ivory tower; Is it scholarship, or a cyber chit-chat?".  Needless to say, I think blogs (at least some of them) are a form of scholarship, but Texas Professor Kate Litvak apparently does not agree.  She is quoted as saying: "They have nothing to do with scholarship."

Joyfully, this morning I can respond to Kate's assertion by noting that the Ohio Supreme Court is apparently in the camp that thinks blogs have at least something to do with scholarship.  In its big Blakely decision today (basics here), the Ohio Supreme Court gives this blog this nice little plug in footnote 3:

See, also, Douglas A. Berman's legal blog, Sentencing Law and Policy, at http://sentencing.typepad.com for updates on Blakely and current source material on sentencing.

I cannot help but also note that traditional law review articles do not appear to be cited anywhere in the opinion.

UPDATE: Dan Solove has terrific additional coverage and commentary on the NLJ article here at Concurring Opinions.

February 27, 2006 in Blakely in the States | Permalink | Comments (8) | TrackBack

Ohio applies Blakely and the Booker remedy!

The Ohio Supreme Court finally released its (long-in-gestation) decisions concerning Blakely's applicability to Ohio's sentencing system.  I have previously highlighted that Ohio's sentencing laws and practices make the state a Blakely bellwether because Blakely's impact on Ohio's sentencing scheme could be extreme or extremely minor (background here and here).  It seems the Ohio Supreme Court went the extreme route.

The main decision, State v. Foster, 2006-Ohio-856 (Ohio Feb. 27, 2006) (available here), and a companion ruling, State v. Mathis, 2006-Ohio-855 (Ohio Feb. 27, 2006) (available here), have many facets, including what seems to be a ground-breaking ruling on consecutive sentencing.  This will justify much commentary in the days ahead (and I hope Ohio readers will get a running start in the comments).  Here is the Ohio Supreme Court's official syllabus in Foster (with cites omitted):

1. Because R.C. 2929.14(B) and (C) and 2929.19(B)(2) require judicial factfinding before imposition of a sentence greater than the maximum term authorized by a jury verdict or admission of the defendant, they are unconstitutional.

2. R.C. 2929.14(B) and (C) and 2929.19(B)(2) are capable of being severed.  After the severance, judicial factfinding is not required before a prison term can be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant.

3. Because R.C. 2929.14(E)(4) and 2929.41(A) require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant before the imposition of consecutive sentences, they are unconstitutional.

4. R.C. 2929.14(E)(4) and 2929.41(A) are capable of being severed. After the severance, judicial factfinding is not required before imposition of consecutive prison terms.

5. Because the specifications contained in R.C. 2929.14(D)(2)(b) and (D)(3)(b) require judicial factfinding before repeat violent offender and major drug offender penalty enhancements are imposed, they are unconstitutional.

6. R.C. 2929.14(D)(2)(b) and (D)(3)(b) are capable of being severed. After the severance, judicial factfinding is not required before imposition of additional penalties for repeat violent offender and major drug offender specifications.

7. Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.

UPDATEMore details about Ohio's sentencing system and the rulings in Foster and Mathis can be accessed here and here from the Ohio Supreme Court's website.

February 27, 2006 in Blakely in the States | Permalink | Comments (14) | TrackBack

Thursday, February 23, 2006

The latest must-read on Blakely/Booker

Professor Ron Wright, throughout his copious work on federal and state sentencing systems, always adds an insightful and distinctive perspective to our understanding of sentencing reform.  (Bias acknowledgment: Ron is a co-author on my casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines.)  Ron's latest paper (available here), entitled "The Power of Bureaucracy in the Response to Blakely and Booker," is no exception.  Here is part of the abstract:

How will different jurisdictions respond to the recent Supreme Court decisions in Blakely v. Washington and United States v. Booker, which require jury fact-finding to support certain types of sentences?  The best clues in predicting the answer to this question come from the people who know this world best, the sentencing bureaucracy.  Sentencing commissions, mostly for benign reasons, hope to preserve their own place in the sentencing structure, or to expand their role if possible.  The particulars shift from place to place, but this powerful tendency of bureaucracies for self-preservation offers a reliable way to predict the reactions of sentencing systems to the upset from Blakely and Booker.

February 23, 2006 in Blakely Commentary and News, Blakely in the States, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, February 22, 2006

The realities of sentencing headlines

I have recently ranted about how much time and energy is spent on the death penalty when so many other consequential criminal justice issues merit more attention from public policy groups and the media.  But California developments yesterday, and the subsequent media coverage, perhaps highlight why I may always be tilting at windmills when I complain about our "legal culture of death."

As I explained here, the SCOTUS cert grant in Cunningham, a California Blakely case, will impact of thousands of sentences in California and could impact hundreds of thousands of sentences nationwide.  Even federal sentencing fans must keep a close eye on Cunningham, because the case could mark an important turning point in the Court's Sixth Amendment jurisprudence and it presents a key opportunity for the two new Justices to take stock of this jurisprudence. 

And yet, there has been almost no media coverage of the Cunningham cert grant.  Tellingly, the AP ran this story about the denial of cert in a capital case yesterday, but had no story on Cunningham that I have seen.  Tony Mauro's review of SCOTUS action in this article relegates the Cunningham cert grant to a brief mention (and even gets the name of the case wrong).  The Los Angeles Times today has this very brief account of Cunningham, but it provides no sense of the case's importance.

In contrast, California's struggles to kill death row defendant Michael Morales (basics here and here) has made headlines in nearly every paper in the country.  The Los Angeles Times today has this massive article about the stalled Morales execution (and this companion piece), the AP has had two reporters and major coverage on the case, the New York Times has this story, and nearly every California paper has a piece on the Morales case.  I suppose I just have to resign myself to the reality that, at least when it comes to ink, death will always be different.

February 22, 2006 in Blakely in the States, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, February 18, 2006

Exploring possibilities in the SCOTUS state Blakely cases

In this post over at Criminal Appeal, Jonathan Soglin effectively explores possible action by the Supreme Court following its Friday conference on "the several pending California Blakely cases and a similar Tennessee case."   It seems Jonathan is predicting cert will be denied in these cases, although my money would be on a cert grant in at least one case with oral argument scheduled for next Term.  However, as I explained in this recent post, the more I think about the state Blakely cases from California and Tennessee (background here and here and here), the more unsure I am about what SCOTUS should or will do.

Some related prior posts:

February 18, 2006 in Blakely in the States, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, February 17, 2006

Mark your SCOTUS calenders

As detailed over at SCOTUSblog, the (new) Supreme Court is back in action with some orders about argued cases.  But we have to wait until Tuesday for news about what SCOTUS may do with the state Blakely cases conferenced today (speculations here). 

Also Wednesday of next week brings SCOTUS oral argument in two notable criminal cases:

Anyone want to guess whether Justice Alito — the first former federal prosecutor to serve as a Justice and the first prosecutor on the High Court since Earl Warren — will be an active questioner in these cases? I will make the bold prediction that Justice Alito will ask at least as many questions as Justice Thomas.

February 17, 2006 in Blakely in the States, Blakely in the Supreme Court, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, February 16, 2006

What should and will SCOTUS do with the state Blakely cases?

As recently noted in my Valentine week sentencing wish list, the Supreme Court on Friday has on its conference schedule a set of major state Blakely cases from California and Tennessee (background here and here and here).  The more I think about these cases, the more unsure I am about what SCOTUS should or will do with these cases.

I can say confidently that SCOTUS should not simply deny cert in these cases.  Though Tennessee changed its sentencing law to avoid future Blakely issues, California continues to sentence thousands of defendants each month under its constitutionally questionable system.  And, as previously noted here, even if the Supreme Court ducks these matters now, the California cases will get back at the High Court through habeas.  Moreover, as detailed in posts listed below, there is a deep division among many states about the meaning and reach of Blakely

Of course, SCOTUS probably should not have denied cert on the issue of Booker plain error, but it did (background here and here and here).  So, just because SCOTUS should do something with these state Blakely cases does not mean it will.  Still, I would be quite surprised if the Court simply denies cert in these cases.

But saying SCOTUS should take up these state Blakely cases does not answer how it should do so.  I think the Tennessee case is perhaps ripe for summary reversal, although there are some procedural complications in the case.  The California cases avoid some of these procedural complications, but I wonder if the Court would feel comfortable summarily reversing on an issue that would be extraordinarily consequential to how California and other states operate their criminal justice systems.

In thinking through these issues, one must also throw into the analytical mix the current SCOTUS sentencing head-count on Apprendi-Blakely issues and the great uncertainty surrounding what Justice Alito and Chief Justice Roberts may think about Blakely issues ("Sc-Alito" background here and here; "Sca-Robers" background here).  And what of CJ Roberts' obvious efforts to bring greater consensus and lower the heat on various contentious constitutional issues (background here).   My head hurts, but I am excited to see what might happen.

Some related prior posts:

February 16, 2006 in Blakely in the States | Permalink | Comments (6) | TrackBack

Sunday, February 12, 2006

A Valentine week sentencing wish list

For a long-married fellow like me, Valentine's Day feels like being an Olympian heavily favored to win a gold: if I perform well, I will only meet expectations; if I perform poorly, many are disappointed and my reputation can be tarnished.  Nevertheless, I am looking forward to this Valentine week with hope that some sentencing-related wishes might be fulfilled by others:

US Supreme Court: I would love a cert grant in the major state Blakely cases that are scheduled to be conferenced this Friday (background here and here and here), in part because I am so curious to find out what Justice Alito and Chief Justice Roberts think about Blakely (background here and here). 

State Supreme CourtsI would love decisions in major Blakely cases that the Ohio Supreme Court has been considering for nearly seven months (background here) and that the Michigan Supreme Court has been considering for over three months (background here).

US Sentencing Commission:  I would love new data about the post-Booker world, especially since it's been more than five weeks since the USSC's last data report (background here).  I would also love some official news about when we might expect the USSC's comprehensive Booker report.  Post-Booker patience may be a virtue, but mine is short.

US Department of JusticeI would love a thoughtful and public DOJ report on the pros and cons of the post-Booker world from the perspective of federal prosecutors.  We've seen such a report from federal defenders in a (long and powerful) letter to the USSC.  I'd now like to hear the other side, perhaps through a similar letter to the Commission.

Circuit and District Courts: I would love a lot more decisions, like those recently from the Sixth Circuit and Judge Adelman and Judge Bataillon, which take both parts of the Booker ruling seriously and give focused attention to the plain text of 3553(a).

February 12, 2006 in Blakely Commentary and News, Blakely in the States, Blakely in the Supreme Court, Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, February 02, 2006

Gearing up for the next Blakely cases

Though not quite as chaotic and urgent as the on-going lethal injection scrummages (background here), the litigation mess that SCOTUS has made through its opaque Sixth Amendment jurisprudence is another example of how an unclear (and perhaps uncertain) Supreme Court can wreck havoc with state criminal justice systems.   More proof comes through this fine article from The Daily Journal of California (courtesy of Howard Bashman), which discusses the Court's impending consideration at its next conference of a number of cert petitions raising Blakely challenges to California's sentencing system.

As I recently discussed here, Justice Alito will get his first opportunity to cut his teeth on Blakely issues through the SCOTUS conference in two weeks in which the Gomez case from Tennessee (background in this post) and a number of the Blakely cases from California are to be conferenced (more details in this post).  The Daily Journal article provides an effective overview of how these issues are playing out in California while everyone awaits possible Supreme Court action.  And the article highlights that it may not be a question of whether, just a matter of when and how, SCOTUS has to address these state Blakely issues:

[Attorney Jonathan] Soglin said it's possible that the high court does not have the appetite for another sentencing case right now. The justices also might want to let the issue percolate in the lower courts, he said.

However, even if the justices deny review, Soglin said, the issue will return to the high court again because the lower federal courts are beginning to examine California's sentencing scheme on habeas review.  "That will just take much longer," Soglin said.

February 2, 2006 in Blakely in the States | Permalink | Comments (2) | TrackBack

Saturday, January 28, 2006

All hail the Blakely Frontier

AlaskaflagThe state nickname for Alaska is "The Last Frontier," but I am going to start calling it the Blakely Frontier after the Alaska Court of Appeals issued another terrific and terrifically interesting Blakely opinion in Carlson v. State, No. 2029 (Alaska App. Jan. 27, 2006) (available here).  Last month, as detailed here, the Alaska Court of Appeals issued a strong opinion on Blakely and consecutive sentencing in Vandergriff v. State, No. 2022 (Alaska App. Dec. 16, 2005), and Carlson is more of the same.

The Carlson decision is authored by Judge Mannheimer, who wrote a fantastic concurrence in Vandergriff in which he provided a cogent and compelling account of the Apprendi-Blakely-Booker line of decisions.  The Carlson opinion covers similar ground in its thoughtful explanation of its holding that a judge's imposition of a "sentence that exceeds the benchmark sentencing range for second-degree murder" established by caselaw does not transgress the Sixth Amendment.  Here is a small sample of a must-read state Blakely decision:

To preserve the right to jury trial guaranteed by the Sixth Amendment, the Supreme Court has ruled that governments can not define criminal offenses in a manner that allows the prosecutor to present a stripped-down case to the jury and then, following the defendant's conviction, allows the sentencing judge to decide other factual issues which (if proved) will lift the sentencing ceiling — effectively convicting the defendant of an aggravated degree of the underlying offense....

The constitutional problem in Apprendi, Blakely, and Booker was the attempt by various governments to segregate certain aspects of a crime — facts that would traditionally be viewed as elements of the crime (facts relating to the defendant's conduct, mental state, or criminal history, or other circumstances surrounding the crime) — and assign the decision of these facts to the sentencing judge by declaring these facts to be "sentencing factors"....

Rather than being a finding of historical fact, the finding required by [our caselaw here] (some sound reason for concluding that the defendant should receive a sentence longer than 30 years) is partly a weighing of imponderables and partly a prediction of the defendant's future behavior, based on the judge's assessment of the underlying causes of the defendant's criminal behavior, the defendant's likelihood of recidivism, and the defendant's amenability to rehabilitative efforts. In other words, this finding does not look like any of the findings that are traditionally entrusted to the jury under our system of justice (save in those few states which give sentencing authority to juries).

January 28, 2006 in Blakely in the States | Permalink | Comments (15) | TrackBack

Monday, January 23, 2006

Looking ahead to SCOTUS Blakely action

As detailed over at SCOTUSblog, there wasn't any notable sentencing action in the Supreme Court's work today and now the Court goes into recess for four weeks.  Not only does this schedule allow everyone plenty of time to enjoy SuperBowl hype, it also provides time to gear up for the notable Blakely action that will be on tap when the Justice get back to work.  Specifically, there are at least two big Blakely stories that will unfold in the coming months:

Folks interested in these and other state Blakely stories should be sure to check out this recent issue of the Federal Sentencing Reporter, which provides thorough and thoughtful coverage of the state of Blakely in the States.  More background on that issue is available at this post.

UPDATE:  Based on this post about the argument schedule at SCOTUSblog, it now appears that Recuenco won't be argued until April (even though cert. was granted well before some of the cases now scheduled to be argued in March).  Hmmmm.

January 23, 2006 in Blakely in the States, Recuenco and review of Blakely error, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, January 16, 2006

Why Kaua may be the circuit decision of the month (so far)

January is living up to my prediction as an amazing sentencing month, although I did not predict that we would get so many important and consequential circuit rulings to kick off the new year.  Indeed, the 1st Circuit's decision in Pho, the 4th Circuit's decision in Clark, the 8th Circuit's decision in Mickelson, and the 11th Circuit's decision in Williams are arguably among the most important circuit decisions concerning Booker that we've seen in many months.

But there is one recent circuit decision that should not be overlooked in all the Booker action: the Ninth Circuit's habeas decision in Kaua (discussed here), which ruled (despite a contrary opinion from the Hawaii Supreme Court) that an aspect of Hawaii's sentencing system violates the Apprendi-Blakely rule. Here are just a few reasons why Kaua strikes me as especially important:

January 16, 2006 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the States, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, January 11, 2006

Ninth Circuit says aloha to Hawaii's sentencing system

In what may be the most significant and potentially far-reaching federal habeas decision about a state sentencing system since Blakely, the Ninth Circuit today in Kaua v. Frank, No. 05-15059 (9th Cir. Jan. 11, 2006) (available here), has concluded (despite a contrary opinion from the Hawaii Supreme Court) that an aspect of Hawaii's sentencing system violates the Apprendi-Blakely rule.  Here is the opening of the opinion:

Appellants, the State of Hawaii and Clayton Frank, appeal the Hawaii district court's grant of Wayman Kaua's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.  We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.  The Hawaii sentencing court found that an extended sentence was necessary to protect the public in Kaua's case. Because the effect of this finding was to increase Kaua's sentence above that authorized by the jury’s guilty verdict, we hold that Apprendi v. New Jersey required a jury to make the finding. In reaching the opposite conclusion, the Hawaii Supreme Court applied a rule — the "intrinsic/extrinsic" analysis — contrary to the rule that Apprendi announced. The district court properly granted the writ.

There are a lot of facets to this Ninth Circuit panel ruling, and it reinforces the Ninth Circuit's tendency to view the prior conviction exception narrowly.  Since Hawaii likely won't be too happy about this ruling, I would expect an en banc and/or cert. petition to follow.  (I wonder if I can convince my dean that I need to now spend the rest of January doing fieldwork on this case in Maui....)

Related posts:

January 11, 2006 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, January 06, 2006

Will SCOTUS take up a core state Blakely case this term?

Thanks to this post by Lyle Denniston at SCOTUSblog, you can read summaries of the six new cases on which the Supreme Court just granted cert.  Two are criminal cases, but neither involves sentencing issues.  (One, Zedner v. U.S. (05-5992), considers "whether the 70-day time limit under the Speedy Trial Act for bringing an accused to trial is subject to harmless-error analysis."  We can thus prepare for a harmless-error spring: as detailed in these posts, SCOTUS in a few months will explore in Washington v. Recuenco whether Blakely errors can be subject to harmless-error analysis.)

In light of these six new grants, I am starting to wonder if the SCOTUS dance card is now almost full.  As noted in this January preview, the Court is still actively considering cert. petitions from defendants in California and Tennessee (details here), who complain that their states' high courts have illegitimately dodged the application of Blakely.  Though I have been speculating that cert. will be granted in one of these cases, this latest large set of SCOTUS grants leaves me less sure.

January 6, 2006 in Blakely in the States | Permalink | Comments (1) | TrackBack

Monday, January 02, 2006

Reviewing Oregon's big Blakely rulings

As detailed in this post, the Oregon Supreme Court closed out 2005 with three important and interesting decisions addressing various "second generation" Blakely claims.  Today, the Salem Statesman Journal has this effective article reviewing the rulings.  Here are snippets:

The Oregon Supreme Court has cleared the way for juries to resentence hundreds of criminal defendants based on aggravating factors, lengthening their prison stays.... "It was not a good day for criminal defendants," said Peter Gartlan, the chief defender in the state Office of Public Defense Services, which argued one of the cases.

The justices sided with the state's arguments in a trio of decisions released on the final business day of 2005. They cleared some of the legal confusion that resulted from a 2004 U.S. Supreme Court decision that cast doubt on Oregon's criminal-sentencing guidelines. "These are important victories for the state," said Kevin Neely, a spokesman for Attorney General Hardy Myers....

Officials have estimated that the decisions could affect 200 to 300 cases, although no one has offered reliable figures.

January 2, 2006 in Blakely in the States | Permalink | Comments (0) | TrackBack

Friday, December 30, 2005

A Blakely threesome from the Oregon Supreme Court

The recent FSR issue on Blakely in the States and this list of state Blakely rulings highlight that, despite all the Booker attention, the most interesting (and intricate) sentencing story of 2005 concerned the many dynamic state Blakely developments.  To cap off a remarkable state sentencing year, the Oregon Supreme Court today issued three important and interesting decisions addressing various constitutional issues that involve what might be called "second generation" Blakely claims.

The Blakely threesome from Oregon Supreme Court — State v. Heilman, No. S51479 (Or. Dec. 30, 2005) (available here) and State v. Upton, No. S52316 (Or. Dec. 30, 2005) (available here) and State v. Sawatzky, S52332 (Or. Dec. 30, 2005) (available here) — covers a wide array of important issues and defy brief summaries.  My quick review suggests that the Court is breaking important (and perhaps new) ground concerning, inter alia, defendant's rights of notice and the application of the ex post facto and double jeopardy principles in the post-Blakely world.  Significantly, in this ménage à trois of high court opinions coming from the house of Oregon , the defendant's constitutional claims consistently get little love (although they are handled with care).

December 30, 2005 in Blakely in the States | Permalink | Comments (1) | TrackBack

Thursday, December 29, 2005

Blakely at 18 months: a recap of state high court rulings

To celebrate the 18-month anniversary of the Blakely decision (which was this past Saturday), I have updated my list of chief state Supreme Court rulings on Blakely's applicability to particular state sentencing systems.  Dividing the rulings by whether Blakely was applied or dodged, we now have:

STATE HIGH COURT RULINGS FINDING BLAKELY IMPACTING STATE SENTENCING

Arizona: The Blakely earthquake hits Arizona, reporting on State v. Brown (Ariz. Oct. 27, 2004).

Colorado: Colorado Supreme Court applies Blakely!, reporting on Lopez v. People (Colo. May 23, 2005).

Indiana: The Indiana Supreme Court speaks on Blakely!, reporting on Smylie v. Indiana (Ind. Mar. 9, 2005).

Maine: Big Blakely rulings from the ends of the Union, reporting on State v. Schofield (Maine June 29, 2005).

Minnesota: Minnesota Supreme Court orders Blakely briefing, reporting on Minnesota v. Shattuck (Minn. Dec. 16, 2004).   UPDATE: A number of hawk-eyed readers rightly reminded me that I should have listed here the main follow-up decision in Shattuck: Minnesota Supreme Court finishes up some important Blakely work, reporting on State v. Shattuck (Minn. Aug 18, 2005), amended (Oct. 6, 2005).

New Jersey: New Jersey applies Blakely (and Booker?), reporting on State v. Natale (N.J. Aug. 2, 2005).

North Carolina: Huge Blakely day in North Carolina, reporting on State v. Allen (N.C. July 1, 2005).

Oregon: Oregon Supreme Court decides Dilts (and ducks issues), reporting on Oregon v. Dilts (Or. Dec. 16, 2004).

Washington: Big Blakely doings from where it all started, reporting on Washington v. Hughes (Wash. Apr. 14, 2005).

Vermont: The Blakely earthquake hits Vermont, reporting on State v. Provost (Vt. Dec. 23, 2005)

STATE HIGH COURT RULINGS FINDING BLAKELY NOT IMPACTING STATE SENTENCING

California: California Supreme Court dodges Blakely, reporting on People v. Black (Cal. June 20, 2005).

Delaware: Nationwide Blakely developments in the states, reporting on Fuller v. State (Del. Oct. 29, 2004); see also Benge v. State (Del. Nov. 12, 2004).

Hawaii: Big Blakely rulings from the ends of the Union, reporting on Hawaii v. Maugaotega (Hawaii June 29, 2005).

Idaho: Blakely not a problem in Idaho, reporting on Idaho v. Stover (Idaho Jan. 6, 2005).

New Mexico: New Mexico Supreme Court deepens state split over Blakely, reporting on New Mexico v. Lopez (N.M. Oct. 14, 2005).

New York: New York's highest court upholds state's felony offender law!, reporting on People v. Rivera (N.Y. June 9, 2005).

Tennessee: Tennessee dodges Blakely, so says divided state supreme court, reporting on Tennessee v. Gomez (Tenn. Apr. 15, 2005).

In addition to these 17 rulings, major Blakely cases have been handed down in Alaska by its intermediate court (see here and here), and leading cases are still in the works in Michigan and Ohio.  There may be significant on-going Blakely litigation in a number of other states as well.

I suspect that the stories of Booker in the federal system will continue to capture most of the headlines (and scholarly commentary), especially as we approach the one-year anniversary of the Booker decision.  Nevertheless, as evidenced by the recent FSR issue on Blakely in the States, the dynamic state Blakely developments is really the most interesting on-going sentencing story.  And, for that reason, I am pleased to be playing a role in a future issue of the Ohio State Journal of Criminal Law that is to be focused on Blakely in the states.

December 29, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

Saturday, December 24, 2005

The Blakely earthquake hits Vermont

Yesterday, while the federal circuit courts were celebrating a Booker Festivus, the Vermont Supreme Court had its own version of a Blakely Festivus.  As detailed in this news report, the "Vermont Supreme Court on Friday changed a quadruple murderer's punishment and deemed a nearly 20-year-old Vermont sentencing law unconstitutional." 

The unanimous ruling came in State v. Provost, No. 2004-160 (Vt. Dec. 23, 2005) (available here).  Here are some highlights from the provocative decision:

Vermont's homicide sentencing scheme is unconstitutional. The maximum sentence the court may impose under § 2303(a) without finding any facts in addition to the jury's verdict is life imprisonment with a minimum term of thirty-five years. Increasing that sentence to life without parole on the basis of any facts, other than a prior conviction, that the jury has not found beyond a reasonable doubt, violates the Sixth Amendment.... We hold that 13 V.S.A. § 2303(a) violates the rule in Apprendi and Blakely because it requires the sentencing court to weigh specific aggravating and mitigating factors not found by a jury beyond a reasonable doubt before imposing a sentence of life without parole....

We decline to follow the example of those courts that have created their own sentencing procedures to replace legislative schemes held unconstitutional in the wake of Apprendi and Blakely.... It is not at all clear whether the Legislature would prefer an indeterminate sentencing scheme placing greater discretion in trial judges, or a scheme requiring juries to conduct whatever additional fact-finding is needed.... Until the Legislature designs a constitutionally permissible means by which the factors can be weighed, there can be no basis for adjusting defendant's sentence above the presumptive term.

December 24, 2005 in Blakely in the States | Permalink | Comments (1) | TrackBack

Tuesday, December 20, 2005

The echoes of Blakely where it all began

Today the newspaper The Columbian has this very interesting article, entitled "Judges eye more say over penalties," about the next wave of Blakely debate in Washington state. Here's how the article begins:

The state's Superior Court judges want back some of the discretion they had to impose stiff sentences for violent crimes before the U.S. Supreme Court took it away from them two years ago.

They want the 2006 Legislature to make Washington's mandatory sentencing guidelines nonbinding, and they seek authority to double the maximum sentence the guidelines allow in "exceptional" cases.  Without that discretion, they say, they are being forced to mete out sentences far too lenient for some heinous crimes.

But a state commission is recommending that lawmakers reject the judges' request for new sentencing authority and nonbinding guidelines.  The commission's majority says that could return Washington courts to the days before sentencing guidelines were enacted in the early 1980s, when judges in different parts of the state imposed widely varying sentences for the same crimes.

December 20, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

Monday, December 19, 2005

The limited impact of Blakely in Apprendi-land

Back in August, as detailed here and here, the New Jersey Supreme Court in Natale applied Blakely to the state's presumptive sentencing scheme and then adopted its own version of the Booker remedy by making the state's sentencing scheme advisory rather than mandatory.  Today, in this effective article, the Asbury Park Press reports the unsurprising news that, in the wake of Natale, most state resentencings have left original sentences undisturbed:

Those who work in the criminal justice system, including judges, attorneys and corrections officers — who must transport the defendants from state prisons to the courthouses where they were originally sentenced — have been expending time and resources on the resentencings that, for the most part, are resulting in prison terms that are unchanged.

"They come here fascinated, thinking, "We're going to get our sentences reduced,' Deputy Public Defender Frank Gonzalez said of the defendants who have been brought back to court in Ocean County to be resentenced. "It has not been as fruitful or beneficial to the defendants as we had anticipated," said Gonzalez, who oversees the Public Defender's Office in Ocean County. "The bottom line is, we have not gotten much out of these resentencings, if anything at all."

December 19, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

Saturday, December 17, 2005

Great Alaska opinion on Blakely and consecutive sentencing

Proving yet again that great sentencing work is being done in the states (a reality reflected the latest FSR issue about Blakely in the states), the Alaska Court of Appeals on Friday issued an interesting Blakely decision in Vandergriff v. State, No. 2022 (Alaska App. Dec. 16, 2005) (available here).  In Vandergriff, the court holds that Blakely is inapplicable to a judicially-created state law rule which sometimes limits imposition of consecutive sentences unless a judge finds consecutive sentencing is necessary to protect the public.

What makes Vandergriff particularly special and especially worthy of everyone's attention is a fantastic concurrence by Judge Mannheimer.  This concurrence not only gives thorough treatment to Blakely's applicability to consecutive sentencing than, but also provides a cogent and compelling account of the Apprendi-Blakely-Booker line of decisions.  Here's one of the opening paragraphs from Judge Mannheimer's strong and effective opinion:

It is difficult to write a single paragraph that encapsulates the Supreme Court's holdings in Apprendi, Blakely, and Booker without any ambiguity.  However, the basic principle behind Apprendi, Blakely, and Booker is to preserve the right of jury trial in the face of legislative attempts to divide offenses into "elements" (facts to be proved at trial) and "sentencing factors" (facts to be proved at the sentencing hearing).  Apprendi, Blakely, and Booker hold that when the maximum punishment to which a defendant can be subjected varies according to the defendant's degree of offense, a defendant has the right to demand that a jury decide their degree of offense, and the right to demand that the factors which distinguish one degree offense from another be proved beyond a reasonable doubt.

December 17, 2005 in Blakely in the States | Permalink | Comments (2) | TrackBack

Thursday, December 15, 2005

Notable new paper on voluntary guidelines

Thanks to this post at the Legal Theory Blog, I see an interesting new paper at SSRN about state sentencing systems and voluntary guidelines (topics which are also addressed in the latest FSR issue about Blakely in the states).  Authored by John Pfaff, and available for download here, the new paper is entitled "The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines."  Here is the abstract:

This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v Washington.

In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation.  For example, voluntary guidelines appear to reduce a measure of variation in sentence length by as much as 28% for violent crimes and 17% for property crimes. By comparison, the analogous results for presumptive guidelines are a 48% drop for violent crimes and a 45% drop for property crimes. For the use of impermissible factors, the results are more ambiguous.  Presumptive guidelines appear in general to be slightly more effective than voluntary, but not consistently, and voluntary guidelines still appear to reduce the role of race and sex at sentencing; due to limitations in the data used for this project, however, it is difficult to draw clear inferences about the welfare implications of the changes with regards to the use of impermissible factors.

Furthermore, voluntary guidelines appear to avoid some of the problems associated with other alternatives, such as sentencing juries and the increased use of mandatory minimums.  In short, voluntary guidelines appear to be a viable, albeit somewhat less effective, alternative to presumptive guidelines in the wake of Blakely.

December 15, 2005 in Advisory Sentencing Guidelines, Blakely in the States, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Indiana Supreme Court gives broad interpretation to prior conviction exception

The Indiana Supreme Court this week finally resolved Ryle v. State, a major Apprendi's "prior conviction" exception case which addressed whether (1) juvenile adjudications and (2) being on probation can be subject to judicial factfinding to enhance sentences.  (I have spotlighted Ryle in prior posts here and here and here because it seems like a good test case for these important post-Blakely issues that have divided lower courts.)

In Ryle v. State, No. 49S02-0505-CR-207 (Ind. Dec. 13, 2005) (available here), a unanimous court concluded that judges can find facts about juvenile convictions and probation status without running afoul of the Sixth Amendment's jury trial right.  Here is the opening paragraph in Ryle:

When the trial court ordered an enhanced sentence for appellant Kenna D. Ryle's manslaughter conviction, it cited his four juvenile adjudications and the fact that he was on probation when he committed the crime.  Our analysis of Apprendi v. New Jersey leads us to conclude that these factors are proper sentencing considerations for a trial judge and need not be submitted to a jury.

The Ryle decision is an interesting read, and it provides another example of a court eager to give Apprendi and Blakely a functional reading, rather than apply these decision as drawing a bright line about what findings must be made by a jury.  (I explore whether Blakely draws a bright line in this post.)

More about the Ryle ruling can be found in this newspaper article about the decision.  The Indiana Supreme Court this week also resolved a similar case on the same basic grounds: Williams v. State, No. 49S02-0512-CR-643 (Ind. Dec. 13, 2005) (available here).

The Indiana Supreme Court's broad interpretation and application of the prior conviction exception stands in sharp contrast to the work of a number of other lower courts which have, as detailed in posts here and here and here, given the exception a narrow reading.  I continue to wonder how deep these splits will need to be before the Supreme Court finally takes up a case to address head-on the continued validity and precise scope of the "prior conviction exception."

December 15, 2005 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, December 14, 2005

Latest FSR issue on Blakely in the States

I am pleased to announce that another issue of the Federal Sentencing Reporter is at the press.  This latest issue shifts FSR  briefly away from the Booker beat — which we've covered in our last two issues examining "The Booker Aftershock" and "Is a Booker Fix Needed?" — and back to the Blakely beat.  Recall that, in the months after the Blakely decision, FSR produced three Blakely issues, which are discussed here and here and here.  (General information about ordering FSR is here and the journal can accessed electronically here.)   

The return to the Blakely beat has this latest FSR issue focused on the "State of Blakely in the States."  As you can see from the issue's contents, which are listed below, the amazing editorial team of Prof. Steve Chanenson and The Vera Institute's Dan Wilhelm has assembled a fantastic collection of original articles on how the Blakely earthquake has rumbled through the states. 

The materials in this FSR issue reinforce my sense that the story of Blakely in the states is even more conceptually rich and dynamic than the story of Booker in the federal system.  And, for a conceptual rich and dynamic overview of state Blakely matter, be sure to read this FSR issue's Editors' Observations, which can be downloaded below.

EDITORS’ OBSERVATIONS

ARTICLES

December 14, 2005 in Blakely in the States | Permalink | Comments (2) | TrackBack

Thursday, December 01, 2005

Minnesota Supreme Court limits reach of "prior conviction" exception

While the federal courts, aided by Booker, continue to undermine Fifth and Sixth Amendment procedural rights at sentencing (see, e.g., today's Second Circuit ruling on enhancing sentences based on acquitted conduct), many state courts continue to give Blakely and procedural rights at sentencing the respect they seem to deserve.  For example, the Minnesota Supreme Court today in Minnesota v. Henderson, 03-1898 (Minn. Dec. 1, 2005) (available here), limited the reach of the "prior conviction" exception to Apprendi and Blakely.

Henderson involves a state sentencing enhancement based on a determination of a "pattern of criminal conduct," which the lower court said was not impacted by Blakely because it is "a legal conclusion, not a finding of fact."  The Minnesota Supreme Court disagreed:

The relevant rule from Apprendi dictates that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt." Apprendi, 530 U.S. at 490.  The Apprendi Court made it clear that recidivism is a narrow exception to the general rule that all facts going to punishment must be found by a jury.  Therefore, the additional findings involved in the comparison and weighing of bad conduct go beyond the acceptable parameters of the recidivism exception, because they involve more than the fact of prior convictions.  We hold that the determination of a pattern of criminal conduct under Minn. Stat. § 609.1095 goes beyond solely the fact of a prior conviction and, therefore, the imposition of an enhanced sentence based on the district court's finding of a pattern of criminal conduct violated Henderson's Sixth Amendment right to trial by jury.

December 1, 2005 in Blakely in the States | Permalink | Comments (0) | TrackBack

Monday, November 28, 2005

Argument in NJ over application of Atkins

As noted in this Newsday article, the New Jersey Supreme Court is scheduled on Tuesday to hear arguments in NJ v. Jimenez concerning the procedures for adjudicating mental retardation claims by capital defendants in the wake of Atkins v. Virginia.  As detailed in this post and this follow-up, the lower court in Jimenez held, based in part on Apprendi and Blakely, that prosecutors seeking the death penalty must prove a defendant is not mentally retarded beyond a reasonable doubt.  The arguments can be viewed starting at 10am at this link.

UPDATE: I caught a part of the Jimenez oral argument, which should eventually be archived here, and found it very engaging and thought-provoking.  And yet, given the fact that, over the past 23 years, New Jersey has spent more than a quarter of a billion dollars on its capital punishment system without executing anyone, the actual outcome in Jimenez may not significantly impact the death penalty in the Garden State.

November 28, 2005 in Blakely in the States, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack