Tuesday, June 21, 2005
A great prior conviction test case
I am very glad to see Michael Ausbrook, who does a great job covering state Blakely stories, back in action at INCourts. And, in addition to this strong post on the California Supreme Court decision in Black, Michael highlights in this recent post a big Blakely case to be argued in the Indiana Supreme Court on Tuesday, Ryle v. State, which concerns the scope of the prior conviction exception.
I have spotlighted Ryle before in posts here and here because it seems like an especially good test case for the scope of the "prior conviction" exception. Ryle raises two issues which have divided lower courts: whether (1) juvenile adjudications and (2) being on probation at the time a crime is committed fit within the prior conviction exception. Michael's post provides considerable background on the juvenile adjudications issue, and also provides links to the parties' supplemental briefs. In addition, thanks to Michael, I can provide this link as the place to find on-line a webcast of the Ryle oral argument taking place on Tuesday morning in the Indiana Supreme Court.
Monday, June 20, 2005
Booker strikes again (aka Back in Black)
I am still taking in the Supreme Court of California's Blakely opinion today in Black (basics here), but Gene Vorobyov at Appellate Law & Practice seems on the right track when he comments in this post that Black "seems spectacularly wrong." Also, Michael Ausbrook at INCourts has a great post here about Black, which astutely observes that there will now be many cert. petition coming from California and that one should be granted so that the Supreme Court can clear up the Blakely-Booker confusion.
One particularly insightful reader wrote to me to express his view that "it looks like the Cal SCt majority has adopted all of the arguments the State and the SG made in Blakely . . . and that the Court rejected!"
That insightful reader is none other that Jeff Fisher, the lawyer who argued Blakely, and he had these further comments about Black:
What's incredible to me about Black is that (like the Tennessee decision in Gomez) every single reason the California SCt advances for upholding its sentencing system was advanced by the State and the SG in Blakely, rebutted in my reply brief, and squarely addressed in Blakely. These courts seem to assume that Booker made certain new factors important in assessing when Apprendi applies to a sentencing system, but the relevance of those very factors was litigated thoroughly in Blakely itself.
Read the "summary of argument" section in the SG's brief in Blakely [provided for download below]. It sounds exactly like the Cal SCt opinion, and I think could be quoted to show the Cal SCt has just adopted the very reasoning rejected in Blakely. My reply brief in Blakely [also provided for download below] goes point-by-point through these arguments.
UPDATE: An interesting AP news reports on Black can be accessed here. This piece ends with a wonderful understatement by Black's attorney, Eileen Kotler: "I do not think they wanted to change the sentencing scheme so they found a way to uphold it," Kotler said.
California Supreme Court dodges Blakely
The Supreme Court of California just released its decision in People v. Black, the big state Blakely case argued back in April. Here's the opening paragraph from Black:
This case addresses the effect of the decisions of the United States Supreme Court in Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] (Blakely) and United States v. Booker (2005) ___ U.S. ___ [125 S.Ct. 738] (Booker) on California's determinate sentencing law. It presents the specific questions whether a defendant is constitutionally entitled to a jury trial on the aggravating factors that justify an upper term sentence or a consecutive sentence. For the reasons discussed below, we conclude that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial.
This is big and very interesting news explained in a 45 pages of opinions that can be accessed here. Commentary on this decision will follow late today once I have a chance to take it all in.
Friday, June 17, 2005
Blakely news from California to close the week
I returned from another day of Carolina sun to learn there is big Blakely news brewing in another locale with lots of sun. According to this notice, the Supreme Court of California will be releasing on Monday its decision in People v. Black, the big state Blakely case argued back in April. Here's the description of the issues to be addressed in Black:
(1) What effect do the decisions in Blakely v. Washington (2004) __ U.S. __, 124 S.Ct. 2531 and United States v. Booker (2005) __ U.S. __, 125 S.Ct. 738 have on the validity of defendant’s upper term sentence? (2) What effect do those decisions have on the trial court’s imposition of consecutive sentences?
Washington Supreme Court declares Blakely not retroactive
As detailed in this article, on Thursday the Washington Supreme Court concluded in State v. Evans, No. 74851-9 (Wash. June 16, 2005) that "neither Apprendi nor Blakely applies retroactively on collateral review to convictions that were final when Blakely was announced." The Court's unanimous ruling can be accessed at this link, and a brief concurrence by Justice Sanders can be accessed at this link.
The decision in Evans covers now familiar retroactivity ground, relying heavily on Schriro and otherwise rejecting arguments, including a claim based on state law, which might provide a basis for giving some retroactive application to Blakely. And Justice Sanders' one paragraph concurrence makes this observation about the current state of retroactive affairs:
As a matter of logic and principle, I find it difficult to accept one's constitutional right to a jury trial on sentencing factors may be abridged, without remedy, when the issue is first raised based on new case law in the context of a personal restraint petition. But a slim majority (5-4) of the United States Supreme Court in Schriro v. Summerlin, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), seems to say exactly that. What can I do but concur in the decision of our majority?
Monday, June 13, 2005
An update, and insights, on Blakely in Ohio
I have done many posts on the status of Blakely in Ohio, in part because Ohio's sentencing laws and practices make the state a Blakely bellwether (background here and here), and in part because there have been a number of interesting twists and turns, as detailed here and here, as these Blakely issues slowly work their way up to the Ohio Supreme Court.
Thanks to helpful readers, I can now report that the Ohio Supreme Court has scheduled, as noted here, two Blakely cases before it, State v. Foster, 2004-1568, and State v. Quinones, 2004-1771, for oral argument on July 26, 2005. I have also learned that these oral arguments can be watched on-line next month here at the Ohio Supreme Court's website.
Though we all have to wait still another six weeks for these Ohio Blakely arguments, I can in the meantime share one of the briefs in the case. Available for download below is the "Brief of Amicus Curiae Ohio Association of Criminal Defense Lawyers In Support of Appellee Jason Quinones." It provides a wonderful primer on Ohio's sentencing structure and on the potentially profound impact of Blakely in the Buckeye State.
Friday, June 10, 2005
News on Oregon's Blakely fix bill
This article from the Salem Statesman Journal provides a terrific account of the proposed Blakely fix legislation moving along in Oregon. Here are selections from the article detailing the bill's proposed new sentencing procedures:
Some criminal defendants will face two jury proceedings, instead of one, under a bill that allows Oregon to continue to use aggravating factors to lengthen prison sentences. The Senate passed the bill on a 28-1 vote Thursday and sent it to the House. There was no debate....
So-called "departure sentences" account for 200 to 300 new cases annually, according to state officials. The new procedures also would apply to an estimated 200 defendants whose sentences have been returned to circuit courts.
Under Senate Bill 528, prosecutors would have to tell defendants upon indictment — or soon afterward — whether they will bring up "enhancement" facts at trial that could lead to longer prison sentences. Enhancement facts relating to the crime, such as the use of a gun, would be considered by jurors at the same time they decide guilt or innocence. The trial judge could defer that consideration to a follow-up sentencing phase, however, if it could be "unfairly prejudicial" to the defendant. Enhancement facts relating to the defendant, such as whether racial or sexual motivation existed, would be considered by jurors in a separate sentencing phase if they found the defendant guilty.
I am intrigued and pleased to see this legislation, which responds to the new Sixth Amendment doctrine through Blakely-ization of sentencing procedures, incorporates a kind of offense/offender distinction in its jury procedures. (I a discuss the offense/offender distinction at length in my Conceptualizing Blakely article).
For a (now slightly-dated) review of other state Blakely fixes, check out an April post on the State of state Blakely fixes and high court rulings.
Thursday, June 09, 2005
Three observations on Rivera
After having a chance to read closely the majority opinion of the New York Court of Appeals in Rivera, which upholds the constitutionality of the state's persistent felony offender statutes (basics here), three big thoughts rush to mind:
1. The decision seems cert. proof: Because the Rivera court based its ruling on a particular (though debatable) interpretation of the state's statutes, I think it would be unlikely that the Supreme Court would have much interest in giving the decision a second look.
2. What about state constitutional law?: The New York State Constitution in Article I, sec. 2 says: "Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever." Perhaps the defendant in Rivera did not also bring a state constitutional law claim (or perhaps such a claim has been resolved in earlier decision). Nevertheless, as I suggested in this post a few month ago, I think state constitutional law claims can and should play a larger role in the post-Blakely universe.
3. The continuing importance of the "prior conviction" exception: A critical component of the Rivera decision is the continued vitality of the Almendarez-Torres "prior conviction" exception. If Justice Thomas gets his way and the exception gets undone by the Supreme Court, New York will certainly have to alter the operation of its persistent felony offender statutes. Rivera is thus a good reminder that many states without significant Blakely problems may still end up with a significant Sixth Amendment mess if (when?) the Almendarez-Torres "prior conviction" exception is overruled.
New York's highest court upholds state's felony offender law!
In a major state Blakely ruling — which addresses in a slightly different procedural posture the issues considered last week on habeas by the Second Circuit in Brown (basics here, commentary here) — the New York Court of Appeals in People v. Rivera, No. 86 (N.Y. June 9, 2005) (available here) has upheld the constitutionality of the state's persistent felony offender statutes.
Rivera is rich and interesting in so many ways (in part because of two nuanced dissents). The decision mostly rests on a reaffirmation of the court's prior interpretation that the state's persistent felony offender statutes requires "no additional fact-finding beyond the fact of two prior felony convictions" for an enhanced sentence. But a wondrous footnote 8, which walks through some of the fact/judgment ideas I developed in this recent post, provides (perhaps) a back-up justification for the ruling:
In New York, the exercise of this type of discretion [in applying the felony offender enhancement] has never fallen to juries, except in the unusual context of capital cases. In Apprendi, [Ring, Blakely and Booker] all of [the] prohibited judicial findings relate to the crime for which the defendant was on trial and, as quintessential fact questions, would properly have been subject to proof before the jury, in stark contrast to traditional sentencing analysis of factors like the defendant's difficult childhood, remorse or self-perceived economic dependence on a life of crime (cf State v Rivera, 102 P3d 1044, 1058 [Haw. 2004] [distinguishing between "intrinsic" aspects of the crime itself, which must be proved to the jury, and "extrinsic" characteristics of the defendant, which are subject to judicial determination]).
Although we do not rest our decision on it, we note that the prohibited findings in these Supreme Court cases are thus readily distinguishable from the subjective determination by the sentencing court operating under our recidivism statutes in this case. Our statutes contemplate that the sentencing court — after it has adjudicated the defendant a persistent felony offender — will consider holistically the defendant's entire circumstances and character, including traits touching upon the need for deterrence, retribution and rehabilitation unrelated to the crime of conviction. This is different from the type of fact-finding involved in Apprendi.
Wednesday, June 08, 2005
Notable news from Tennessee
Lots of interesting sentencing news coming from Volunteer State:
- On the Blakely front, as foreshadowed in this post, yesterday Tennessee Governor Phil Bredesen signed the state's Blakely fix legislation. As explained on this helpful page which collects Tennessee Blakely materials, the fix "eliminates presumptive sentencing from Tennessee's sentencing law [replacing] former presumptive sentence provisions ... with a series of guidelines that include enhancement and mitigating factors and a statement of principles and sentencing considerations." In other words, Tennessee's sentencing provisions have been Booker-ized, as the "new law requires the judge to consider, but not be bound by, these advisory guidelines to arrive at an appropriate sentence which is subject to appellate review."
- On the death penalty front, this AP story details that, in the state's Supreme Court, a "condemned killer is challenging Tennessee's method of lethal injection, calling it an illogical process in part because it includes a drug forbidden in the euthanasia of animals." More on recent challenges in other states to lethal injection protocols can be found at posts here and here and here.
- And speaking of the Tennessee Supreme Court, this story details that Chief Justice Frank Drowota announced earlier this week that he will retire from the state's highest court Sept. 2. In addition to noting that CJ Drowota was the author of that Court's problematic Gomez decision on Blakely (basics here, problems here), I cannot help but wonder if this foreshadows a summer of chiefly retirements. I also will boldly predict that we will not be seeing the development of a Tennessee Supreme Court Nomination Blog to rival the work being done here.
Tuesday, June 07, 2005
The latest news on Blakely in Tennessee
Attorney David Raybin, who has been integrally involved in many Tennessee Blakely developments, sent me tonight the latest news on his state's Blakely drama. The big recent development is that on Tuesday, June 7, Tennessee's Governor is scheduled to sign "Blakely fix" legislation — even though, as detailed here and here, the Tennessee Supreme Court has reached the (seemingly erroneous) conclusion that the state's current sentencing laws are not broken.
As detailed more fully in David Raybin's report, which can be downloaded below, Tennessee's "Blakely fix" legislation serves to "Booker-ize" the state's sentencing scheme. That is, the legislation converts Tennessee's mandatory sentencing regulations into advisory guidelines that state judges must now consider, but are no longer required to follow. I believe Tennessee is the only state to date to adopt legislatively a Booker advisory guidelines approach to deal with Blakely issues, although other states like Alaska and Minnesota have in smaller ways provided judges with more sentencing discretion through Blakely fix legislation. (A now-slightly-dated review of the state of state Blakely fixes and high court rulings is available at this post.)
Wednesday, June 01, 2005
Latest development in Ohio's Blakely story
I have not noted a number of recent intermediate appellate court decisions on Blakely from Ohio, because, as detailed in this Ohio Criminal Sentencing Commission memo, the basic story has not changed much of late: most of Ohio's intermediate appellate courts have found Blakely largely inapplicable in Ohio, though the First District Court of Appeals has held to its view, discussed here and here, that Booker significantly altered the Blakely analysis in Ohio. (Background on how 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, can be found in posts here and here.)
But yesterday brought a development that merits mention: in a pair of major en banc cases — State v. Lett, Nos. 84707 & 84729, 2005-Ohio-2666 (Ohio 8th Dist. May 31, 2005) (available here) and State v. Atkins-Boozer, No. 84151, 2005-Ohio-2666 (Ohio 8th Dist. May 31, 2005) (available here) — the Eighth District Court of Appeals, "cleaned up" some disparate Blakely rulings by prior panels. In these (lengthy) decisions, the Eighth District Court of Appeals held that Ohio's sentencing scheme largely dodges Blakely problems. Here are parts of the interesting opening paragraphs of Lett:
In Blakely v. Washington, the United States Supreme Court held that the "statutory maximum" for sentencing purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Shortly after the supreme court released that opinion, Justice Sandra Day O'Connor was widely quoted as saying that the decision "looks like a No. 10 earthquake to me." These remarks proved accurate. The application of Blakely to sentencing issues relating to the maximum, minimum and consecutive sentences under [Ohio] R.C. Chapter 2929 have now divided this court, with the result being the imminent issuance of conflicting opinions from within this appellate district....
[W]e invoked our en banc procedure, extant since 1976, to resolve preemptively the differences within this district. In doing so, we acknowledge that the Ohio Supreme Court has certified several cases touching on the issues to be addressed herein, including one involving Lett in an unrelated case. Nevertheless, we think it provident to resolve the conflicts within this district pro tempore until such time as the supreme court resolves these issues definitively.
As might be expected, the complexity of the issues presented in this case has left this court deeply divided. We recognize that the orderly administration of justice is the rock upon which government rests. More criminal cases are heard in this appellate district than in any other in this state. Our refusal to speak on these issues, no matter how discordantly on an individual basis, would create the untenable situation where individual defendants would be sentenced differently pending the Ohio Supreme Court's decision. All of us agree that would be an unacceptable outcome and must be avoided; hence, our agreement is to apply the law set forth in this opinion until the Ohio Supreme Court renders a final decision.
Just in case you do not have time to read nearly 100 pages of trenchant Blakely Ohio analysis from the judges of the Eighth District Court of Appeals, highlights of the decisions are provided in a helpful official court press release that is provided for downloading below.
Thursday, May 26, 2005
Interesting Blakely developments from Indiana, Minnesota and Oregon
With new Booker data and the prospect of the federal plain error issue going up to the Supreme Court, it is easy to forget about all the Blakely excitement in the states. But this week alone there has already been notable Blakely developments in at least three states:
From Indiana, we get a fascinating ruling in Williams v. Indiana, No. 49S02-0505-CR-242 (Ind. May 25, 2005) (available here), in which the Indiana Supreme Court uses its "review and revise" power to essentially circumvent a Blakely problem. The sentence below involved a Blakely-problematic enhancements on two counts of conviction, but the Indiana Supreme Court decided it could lawfully impose the same sentence by instead ordering consecutive sentences (which, in Smylie, this same court concluded raised no Blakely concerns). This Williams decision is thus a remarkable study in form over substance (and I will be eager to see what Michael Ausbrook over at INCourts thinks of this one).
From Minnesota, I have news from an always helpful North Star State correspondent that the state legislature passed legislation to "Blakely-ize" the Minneosta guidelines (following, I believe, the recommendations of the Minnesota Sentencing Guidelines Commission). The full bill is here, though it takes a sharp eye to see the key jury trial provisions.
From Oregon, I have news from an always helpful Beaver State correspondent that the Oregon Supreme Court issued some orders today with Blakely implications. As detailed toward the end of this list of actions, the court (1) issued "alternative writs of mandamus" in two cases, State v. Upton, S52316, and State v. Sawatzky, S52332, to explore whether a trial court has authority to empanel a sentencing jury, or else to submit certain facts to the jury in the guilt phase, where those facts are necessary to establish the basis for an upward departure, and (2) granted the State's petition for review in State v. Gornick, S52252, A121042, in which the court will explore "plain error" concepts in deciding how to address a Blakely issue not raised below.
What Lopez can teach New Jersey
In this post, I suggested that there was a lot to learned from the Colorado Supreme Court's recent Lopez ruling applying Blakely in that state (basics here). Apparently agreeing with the sentiment, the Public Defender of New Jersey has submitted a letter brief to the New Jersey Supreme Court detailed how Lopez "flatly rejected" the sorts of arguments being put forward by the NJ Attorney General to try to spare New Jersey's sentencing system from Blakely.
A copy of that letter brief can be downloaded below. Also the key Blakely cases before the NJ Supreme Court are described briefly and linked here, and additional background on Blakely in New Jersey can be found in prior posts here and here and here.
Tuesday, May 24, 2005
Learning from Lopez
The Colorado Supreme Court's recent Lopez ruling applying Blakely (basics here) is a must-read for everyone interested in watching a state Supreme Court faithfully apply Blakely's new constitutional mandate while also finding ways to minimize its impact on an existing structured sentencing system. There are many insights and choice passages in Lopez, but I particularly appreciate the court's embrace of a helpful nomenclature (drawn from an Arizona decision) for facts which judges can rely upon for enhancing a sentence:
[F]acts admitted by the defendant, found by the jury, or found by a judge when the defendant has consented to judicial fact-finding for sentencing purposes we call "Blakely-compliant," and prior conviction facts we call "Blakely-exempt."
In addition, though it may be too late, the Lopez court has some important lessons for the Tennessee Supreme Court (which, as discussed here, seemed to mis-read Blakely an Booker in its recent Gomez decision):
[T]he Blakely Court effectively rejected any distinction, for the purposes of Sixth Amendment analysis, between mandatory or discretionary aggravated sentencing systems based on judicial factfinding. Under either system, facts supporting increased sentences are subject to the rule. The Court stated that "[w]hether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence." [Blakely, 124 S. Ct] at 2538 n.8 (emphasis in original).
Monday, May 23, 2005
Colorado Supreme Court applies Blakely!
This morning in Lopez v. People, No. 04SC150 (Colo. May 23, 2005) (available here), the Colorado Supreme Court issued a major ruling concening the application of Blakely in the Mile High state. Here is are the official abstract of what looks like a long and thoughtful opinion in Lopez:
The Supreme Court holds that section 181.3401(6) aggravated sentencing, based on a sentencing judge finding the presence of extraordinary aggravating circumstances, is constitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 124 S. Ct. 2531 (2004), if it is based on one of at least four Blakely-compliant or Blakely-exempt types of aggravators: 1) facts found by a jury beyond a reasonable doubt; 2) facts admitted by the defendant; 3) facts found by a judge after the defendant stipulates to judicial factfinding for sentencing purposes; and 4) facts regarding prior convictions.
The Court expects that this holding, implementing the Supreme Court's Blakely decision, will apply only to a limited number of cases. First, it will apply retroactively only to cases pending on appeal. Second, in the future, the legislature may enact a statute that responds to the United States Supreme Court's holdings in Apprendi, Blakely, and Booker by adopting a statute that does not place the trial court into the position of finding facts in order to aggravate sentences. Third, under the current statute, prosecutors arranging plea agreements, or trial courts considering guilty pleas, can insist that defendants admit to those facts potentially needed for aggravated sentencing. Fourth, the jury can be asked by interrogatory to determine facts potentially needed for aggravated sentencing. Fifth, and most important to the case before us, the full range of mitigated, presumptive and aggravated sentencing remains available under the statute if based on constitutionally-permissible facts, in accordance with Blakely.
Under section 181.3401(6), the existence of a constitutionally-permissible aggravating or mitigating fact widens the sentencing range to a floor of one-half the presumptive minimum up to a ceiling of double the presumptive maximum. The sentencing judge then has full discretion to sentence within this widened range according to traditional sentencing considerations. However, if the trial judge must find additional facts in order to impose a sentence outside of the presumptive range, the rule of Blakely applies.
The aggravated sentence in this case was imposed in part on the basis of a prior conviction, and the Court holds that one constitutionally valid aggravator is sufficient to support an aggravated sentence under section 181.3401(6). Accordingly, the Court affirms the court of appeals' judgment upholding the aggravated sentence for possession of cocaine in this case.
Friday, May 20, 2005
A taste of Tennessee Sour Mash
I detailed in this post that the Tennessee Supreme Court has now refused to rehear its Gomez decision (basics here, problems here), and in this follow-up post I pondered what happens next with the Gomez case and other cases in Tennessee. Helpfully, insightful Tennessee correspondent David Raybin has provided this report from the front lines:
I have learned that the attorneys for the litigants in Gomez will be taking a prompt appeal to the US Supreme Court. I am confident that Tennessee Association of Criminal Defense Lawyers will file an Amicus to the petition. Gomez also presents a plain error issue which the Supreme Court may wish to resolve as well or it may make the case unattractive.
The Gomez issue may not yet be ripe for federal habeas corpus review for [other] pipeline cases because the Court of Criminal Appeals was routinely granting Blakely relief to cases coming before it. Given that the Attorney General believed the statute was flawed, the AG never appealed those cases to the Tennessee Supreme Court. Thus, the universe of potential defendants who could go directly to federal court at this time is rather small. The flood will start with those cases in the Court of Criminal Appeals where the issue has been raised and they must now deny relief.
The other (and in my view) much greater problem is what is to be done at the trial level. It is malpractice to accept any sentence higher than the presumptive minimum because of the near universal belief that Gomez will die in federal court. Judges in some places are now imposing two sentences and some judges are having the jury find the enhancement factors. Chaos. It is unnecessary to speculate about the problems Gomez wrought in Tennessee. It is all too real.
In addition to this interesting report, David also made sure to provide a bit of background on a well known potent potable: "Sour mash, which also is sippin’ whiskey and Tennessee whiskey, is a frequently misunderstood term. Sour mash simply refers to the technique used in the preparation of most, if not all, straight whiskey. The sour mash method makes the yield more efficient. Sour mash got its name because the thin spirit 'beer' remaining had a slightly acidic taste, although the resultant whiskey was anything but sour."
Wednesday, May 18, 2005
Tennessee Supreme Court denies rehearing in Gomez (but legislative fix still in works)!
As detailed here, last month the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's sentencing scheme. However, as detailed here, that ruling seemed to rest on a complete misunderstanding of Apprendi and Blakely. Yet, despite the fact that every litigant involved in the case, including the Tennessee Attorney General, petitioned for rehearing in Gomez (see details here and here), today the Tennessee Supreme Court stuck to its guns and denied rehearing.
In its order rejecting rehearing, which can be downloaded below, a majority of the Tennessee Supreme Court asserts:
We remain convinced that Blakely must be read in light of Booker.... The Court harmonized the Federal Sentencing Guidelines with the Sixth Amendment by applying in Booker a remedy which created a discretionary sentencing scheme. We are not persuaded that the differences between the [Tennessee] Reform Act and the post-Booker Federal Sentencing Guidelines are constitutionally significant. If the Sixth Amendment countenances a sentencing scheme that permits judges to find facts relevant to sentencing and affords judges discretion to select a sentence anywhere within a statutory range, even in the absence of enhancing facts, we are unable to conclude that the Sixth Amendment forbids a sentencing scheme in which a state legislature limits judicial discretion by designating the presumptive sentence that must be imposed when a judge finds no enhancement or mitigating factors.
Of course, at issue in Blakely was Washington's sentencing scheme which limited "judicial discretion by designating the presumptive [sentencing range from which a sentence] must be imposed when a judge finds no enhancement or mitigating factors," and that scheme was found to violate the Sixth Amendment when a judge finds facts to go above that presumptive range. In other words, unless Booker essentially overruled a key tenet of Blakely (and footnote 8 which speaks directly to this matter), Gomez still stands on very shaky ground (as detailed more fully here).
Interestingly, David Raybin, who has been integrally involved in many Tennessee Blakely developments, detailed in an e-mail to me that there is even more to the Tennessee Blakely story because of legislative developments:
The Tennessee Senate and House passed the Task Force-recommended-Booker-style, Blakely fix legislation today and it is on its way to the Governor's desk. Given that the legislation was proposed by the Governor's office, it should be signed by Memorial Day. It takes effect immediately upon the Governor's signature. I have drafted an article on the new legislation for the Tennessee Bar Association Journal [which can be downloaded below].
On the same day that the fix passed the legislature, the Tennessee Supreme Court releases its order on the collective petitions to rehear filled by all parties and the Amicus (whom I represent). As for the Opinion itself, my first comment was: "res ipsa loquitur" (And for those who are not up on their Latin: "the thing speaks for itself"). I suggest that the old Tennessee pre-fix statute will not survive first contact with a federal court. More to the point: who will defend it, given that even the Attorney General believes it is flawed. Astounding.
Friday, May 13, 2005
Notable developments in Supreme Courts
With the help of the always helpful blogsphere, I see some notable Supreme Court developments on sentencing issues:
- As noted and explained in this post by Michael Ausbrook at INCourts, the Indiana Supreme Court yesterday issued a bunch of per curiam opinions discussing Blakely issues in the wake of its big Smylie decision(basics here, commentary here and here and here). I hope to comment more of these decisions, all of which can be accessed here, once I get a chance to review them closely.
- As noted and explained in this post by Tom Goldstein at SCOTUSblog, a couple of cases to be watched closely for possible cert. grants next week involve sentencing issues. One case raises the Booker pipeline issue of whether "a defendant waived a claim of Booker error on appeal by not raising the question in his opening brief." Another case from Kansas concerns "whether the Constitution permits the imposition of the death penalty when evidence of aggravating and mitigating circumstances is in equipoise, or whether the aggravators must outweigh the mitigating circumstances."
Wednesday, May 11, 2005
Might Indiana's Supreme Court be a wise leader on the prior conviction exception?
Michael Ausbrook at INCourt has this notable post which details that the Indiana Supreme Court has ordered supplemental briefing in Ryle v. State focused on two questions concerning the scope of the "prior conviction" exception to the Apprendi-Blakely rule.
Ryle seems like an especially good test case for the scope of the "prior conviction" exception for a few reasons: (1) as detailed by Michael and in this post last year, Ryle directly addresses two key issues and uncertainties surrounding the prior conviction exception; (2) because Indiana's legislature has now passed a Blakely fix which makes Indiana's guidelines advisory, the state Supreme Court can consider the legal issues without pragmatic worries that all future sentencings hang in the balance, and (3) the Indiana Supreme Court's work in its big Blakely case, Smylie (basics here, commentary here and here and here) gave me the impression that this court really understands these issues.
Michael reports that oral argument in Ryle is not until next month, and I am not sure about the briefing schedule. But I will be eager to see what the parties have to say concerning one of the biggest and most important doctrinal issues still lurking in the post-Blakely world.
Friday, May 06, 2005
Two Oregon cases spotlight key Blakely issues
This morning I noticed on-line two Oregon state intermediate appellate court cases which spotlight some of the big Blakely questions that will need to be resolved by the Supreme Court sooner rather than later.
In State v. McMillan, 2005 Ore. App. LEXIS 538 (Ore App. Ct. May 4, 2005), the defendant raised Blakely to contest the sentencing judge's fact-finding which set the amount of a restitution order. The McMillan court rejected this claim, asserting simply:
The statutory maximum is...the amount of pecuniary damages as determined by the court, and no more. Therefore, even assuming that Apprendi and Blakely apply to restitution, see State v. Gutierrez, 197 Or.App. 496, 505, 106 P3d 670 (2005) (Apprendi and Blakely "arguably do not apply" to restitution), the principles announced in those cases were not violated.
In State v. Giles, 2005 Ore. App. LEXIS 542 (Ore App. Ct. May 4, 2005), the defendant contested on Blakely grounds a sentence enhancement based on the trial court's finding of "persistent involvement in similar offenses." Here the defendant prevailed, because:
In State v. Perez, 196 Or.App. 364, 371-73, 102 P3d 705 (2004), rev den (Apr 28, 2005), we held that, under Apprendi and Blakely, any fact other than the "bare fact of a prior conviction" that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.
May 6, 2005 in Almendarez-Torres and the prior conviction exception, Blakely in the States | Permalink | Comments (0) | TrackBack
Wednesday, May 04, 2005
Dancing around Gomez in New Jersey and Tennessee
As detailed in this post, New Jersey's Attorney General recently submitted a letter to the NJ Supreme Court in the state's pending Blakely case which contends the "Supreme Court of Tennessee [in Gomez] was absolutely correct in its interpretation of Booker." I found this submission almost comical because Tennessee's own attorney general, as detailed here, has filed a petition to rehear Gomez (as has the Tennessee Association of Criminal Defense Lawyers, as detailed here). The Tennessee Supreme Court's ruling in Gomez finding Blakely inapplicable to Tennessee's sentencing scheme is discussed here, and my explanation of why that ruling seems to rest on a misunderstanding of Apprendi and Blakely is here.
The New Jersey Association of Criminal Defense Lawyers, serving as amicus in the NJ Blakely case, has now filed its own letter in the NJ Supreme Court concerning Gomez. Available for download below, this letter highlights that everyone is seeking rehearing in Gomez. Getting in an indirect dig at the effort by NJ's AG to use Gomez in New Jersey, the letter closes with this comment:
The Tennessee Attorney General's willingness to place intellectual honesty before political expediency is commendable, if not refreshing.
Relatedly, attorney David Raybin, who has been integrally involved in many Tennessee Blakely developments, was moved by the musical stylings in recent Booker song parody posts here and here to put Gomez to music. Here are highlights from his fitting effort:
The Blakely Tennessee Waltz (Rewritten by David Raybin)
Sung to the Tennessee Waltz (Originally Written by Pee Wee King and Redd Stewart)
I was appeal’n with my clients to the Tennessee Courts
When some new precedent I happened to see
I introduced it to my client
And while we were appeal’n
The Supreme Court stole my lawsuit from me
I remember the night and the Tennessee Courts
Now I know just how much I have lost
Yes, I lost my little appeal’n
The night they were misconstruing
The beautiful Tennessee Waltz
Sunday, May 01, 2005
New Jersey AG wants Gomez to spread to the Garden State
Though I do not have an electronic copy to post, I can report that New Jersey's Attorney General has recently submitted a letter to the NJ Supreme Court in the state's pending Blakely case which contends the "Supreme Court of Tennessee [in Gomez] was absolutely correct in its interpretation of Booker." This letter seems almost comical because Tennessee's own attorney general, as detailed here, has filed a petition to rehear Gomez which contends that in Gomez the Supreme Court of Tennessee "has overlooked or misapprehended a material proposition of law."
In other words, Tennessee's own AG realizes that Gomez is wrong and needs to be overturned, but New Jersey's AG wants the NJ Supreme Court to rely on Gomez to uphold New Jersey's sentencing scheme. (The Tennessee Supreme Court's ruling in Gomez which found Blakely inapplicable to Tennessee's sentencing scheme is detailed here, and my explanation of why that ruling seems to rest on a complete misunderstanding of Apprendi and Blakely is detailed here.)
Relatedly, Michael Ausbrook over at INCourts has a recent post, fittingly titled More on Misunderstanding Booker by the States, which discusses Gomez and other state rulings falling prey to its misunderstanding of Blakely and Booker.
Indiana's Blakely fix is now law
Michael Ausbrook at INCourts is reporting here that Indiana's Blakely fix legislation, known as Senate Bill 96 while in development, has become law. As I explained in this prior post, though the state was once headed toward Blakely-izing its sentencing scheme, I believe the enacted version of Senate Bill 96 Booker-izes Indiana's sentencing statutes by making them advisory. Michael Ausbrook in this post explores the possible impact of Indiana's new legislation on sentencing appeals, and he reports that a "lawyer who knows a great deal about Blakely in Indiana has said that Senate Bill 96 will set criminal law in Indiana back decades."
Tuesday, April 26, 2005
The saga of Blakely in Tennessee continues
As detailed here, the Tennessee Supreme Court earlier this month in its Gomez decision found Blakely inapplicable to Tennessee's sentencing scheme. But, as detailed here, that ruling seemed to rest on a complete misunderstanding of Apprendi and Blakely. Indeed, as discussed in this post last week, within a matter of days, the State filed a petition urging the Tennessee Supreme Court to rehear the case and asserted that the Gomez decision "overlooked or misapprehended a material proposition of law."
On Monday I received a copy of the amicus petition to rehear filed in Gomez by the Tennessee Association of Criminal Defense Lawyers. Available for download below, this brief is an interesting read because, in addition to addressing the Blakely problem, the brief deals with procedural issues which were also discussed but did not seem essential to the decision in Gomez.
Sunday, April 24, 2005
State of state Blakely fixes and high court rulings
With the recent news of legislative Blakely fixes in Indiana (details here) and Washington (details here), as well as the recent state supreme court work in Tennessee (details here, commentary here and here) and Washington (details here), I thought it might be useful to collect in one spot some of the prior posts in which I have reported on major developments in state legislative Blakely fixes and state high court rulings. So, in alphabetical order, here are some of those prior posts:
STATE LEGISLATIVE BLAKELY FIXES
- Alaska's Blakely fix is now law
- Indiana's brewing Blakely fix
- Maryland's developing Blakely fix
- Tennessee's "official" Blakely fix
- Washington state's Blakely fix
STATE HIGH COURT BLAKELY RULINGS
- The Blakely earthquake hits Arizona
- Blakely not a problem in Idaho
- The Indiana Supreme Court speaks on Blakely!
- Minnesota Supreme Court orders Blakely briefing
- Oregon Supreme Court decides Dilts (and ducks issues)
- Tennessee dodges Blakely, so says divided state supreme court
- Big Blakely doings from where it all started (Washington)
Of course, this lengthy list of prior posts tells only part of the state Blakely story. I know that there have been major Blakely developments in California, Colorado, Ohio, New Mexico, New Jersey and North Carolina, but these developments have not yet, to my knowledge, led to a legislative fix or a state high court ruling. But, on only the 10-month anniversary of Blakely, it is remarkable to see all the impact Blakely has already had in the states.
Saturday, April 23, 2005
Indiana's brewing Blakely fix
Michael Ausbrook over at INCourts, who has developed into a leading commentator on state Blakely developments, has the latest details here on the legislative Blakely fix brewing in his home state. As Michael details, the pending legislation moves Indiana to advisory guidelines (i.e., the legislation Booker-izes rather than Blakely-izes the state's structured sentencing system). Here is the heart of Michael's account:
There is some very bad, i.e., confusing and possibly contradictory, drafting in some of the details. But the major thrust of the legislation is pretty clear. Out with fixed, presumptive sentences, and in with "advisory sentences," that are not even all that advisory. There is no statutory requirement that courts consider them....
In the new regime, however, trial judges "may voluntarily" consider the new advisory sentence, but they do not have to. And it would appear that trial courts will be able to impose maximum sentences for good reason, bad reason, or no reason at all.
Wednesday, April 20, 2005
The Tennessee waltz regains its footing by grasping a pikestaff
As detailed here, last Friday the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's sentencing scheme. However, as detailed here, that ruling seemed to rest on a complete misunderstanding of Apprendi and Blakely.
Today I received from David Raybin, who has been integrally involved in many Tennessee Blakely developments, the following e-mail about Gomez and subsequent developments:
The Tennessee Waltz Regains its Footing by Grasping a Pikestaff
Until last week everyone assumed the Tennessee presumptive sentencing scheme violated Blakely, so much so that the governor appointed a commission which recommended a Booker-like advisory sentence fix. Even the Attorney General agreed that the current law was flawed. To the astonishment of all, the Tennessee Supreme Court upheld the constitutionality of the Tennessee sentencing guidelines in State v. Gomez. The majority of the Supreme Court held that, notwithstanding a mandatory, presumptive sentence the discretionary enhancement factors somehow made the statute "advisory" and thus allegedly constitutional. To his credit the Attorney General filed an immediate petition to rehear saying "it is as plain as a pikestaff that a Tennessee judge has no authority to impose a sentence above the presumptive minimum -- the sentence authorized by the jury verdict alone -- unless an enhancement factor is found." The remainder of the petition [which can be downloaded below] attempts to convince the Court to reconsider the Sixth Amendment issue on now-familiar Blakely grounds.
I have been in contact with the defense attorneys who are also filing petitions to rehear but are adding arguments about the "plain error" issue because the Sixth Amendment issue was not raised at trial which occurred well before Blakely was decided. I am drafting an Amicus petition for on behalf of the defense bar on both Sixth Amendment and "plain error" issues.
The jurisprudence of this affair is astounding; everyone is scratching their heads as to how the Tennessee Supreme Court could have missed the mark by so much given that it was the virtually unanimous view of the Bench and Bar that our statute was clearly unconstitutional. Some lawyers scoffed that this ruling was an embarrassment the likes of which Tennessee had not seen since the Scopes monkey trial spectacle. I pointed out to these wags that the Tennessee Supreme Court had saved the day in Scopes' case by holding that the Tennessee constitution provided that only a jury can impose a fine of more than $50. Since the judge imposed the fine (of $100) the conviction was found to be void, Scopes was free, his case was never retried, and the honor of our State restored.
Gomez represents another sentencing question concerning the proper role of the jury and the judge. The petitions to rehear will give the Tennessee Supreme Court the opportunity to "get it right" this time. I am convinced they will reverse themselves given that the Attorney General stepped up again to point out the error of their ways which is as "plain as a pikestaff." A companion political issue concerns the still-pending legislative fix. The jury is still out on that one given that the Tennessee Supreme Court said the Tennessee law is not broken. The dance continues. David Raybin
UPDATE: Michael Ausbrook over at INCourts has this terrific post which develops a number of the story-lines which surround Gomez and Blakely developments in other states. Michael's post rightly lauds the Tennessee AG for its willingness to concede Blakely's applicability Tennessee's sentencing system, and it also spotlights the loose language from Justice Stevens' opinion for the Court in Booker that is sowing confusion about Blakely's reach.
Tuesday, April 19, 2005
Washington state's Blakely fix
Last Friday, the Governor of Washington signed the state's Blakely fix bill, which can be read here. Here is how this legislation was describe to me in an e-mail:
The law, which takes effect immediately, Blakely-izes the Washington state guidelines. It lengthens the former list of aggravators to include all "common law," unenumerated aggravators that had been judicially created and approved over the years, but then says that the list is now exclusive. Most aggravators, if contested, are to be proven during the trial. The trial judge, however, may hold a separate sentencing hearing with respect to four named aggravators if certain conditions are met.
With this legislation, Washington joins a growing number of states willing to give effect to Blakely by providing for jury determinations of aggravating factors. And there are a number of interesting facets to this legislation. For example, Section 5 provides for the state sentencing commission to do a comprehensive review of the state sentencing system and "submit its findings and proposed legislation to the legislature no later than December 1, 2005."
Also, in Section 3, this Blakely fix legislation provides through subsections (2) (b), (c) & (d) for judges to be able to increase sentences without jury findings based on a range of aggravating factors relating to criminal history. However, the constitutionality of this procedure depends on a broad reading of the Almendarez-Torres "prior conviction exception." And, just the day before this fix was enacted, the Washington state supreme court in Hughes (basics here, commentary here) seemed to give the Almendarez-Torres "prior conviction exception a narrow reading. Thus, the Washington state's Blakely fix may already need fixing.
Saturday, April 16, 2005
Puzzled by Tennessee's Blakely waltz
The Tennessee Supreme Court's decision in Gomez (details here), which finds Blakely inapplicable to Tennessee's sentencing scheme, is remarkable for many reasons. But its most remarkable feature is that the ruling seems to rest on a complete misunderstanding of Apprendi and Blakely. In the words of a very knowledgeable lawyer who wrote to me about the opinion, "It's just dead wrong."
The majority in Gomez repeatedly emphasizes that Tennessee's sentencing provisions do "not mandate an increased sentence upon a judge's finding of an enhancement factor," slip op. at 26, to support its ruling that Blakely is inapplicable to Tennessee's sentencing scheme. But an increased sentence was not mandated by the Washington guidelines at issue in Blakely or the New Jersey statute at issue in Apprendi or the federal statute at issue in Jones or the capital statute at issue in Ring. Indeed, the constitutional relevance of merely exposing a defendant to a heightened punishment based on a judicial fact-finding, but still leaving it to the judge's discretion whether to impose the heightened punishment, was extensively briefed in Blakely itself. And in footnote 8 of the Blakely opinion Justice Scalia asserts that it is immaterial for Sixth Amendment purposes "[w]hether the judicially determined facts require a sentence enhancement or merely allow it."
Given the Booker ruling and that fact that the pre-Booker federal guidelines did mandate increased sentences, perhaps the confusion in Gomez can be attributed to the confusing work of SCOTUS in Booker. But, tellingly, the state of Tennessee in this Blakely litigation conceded that Blakely applied to Tennessee's sentencing system AND an august Task Force has worked hard on a legislative Blakely fix (details here) because everyone understood that Blakely applies to a sentencing system which merely authorizes, but does not mandate, longer sentences based on facts not found by a jury or admitted by the defendant.
Perhaps I am missing some hidden wisdom in Gomez, but my initial take is that the Tennessee Supreme Court just got it wrong. And, as a result, we now can ponder the interesting questions of (1) whether the Supreme Court might ASAP grant cert. in Gomez or another case from Tennessee to clarify this issue, and (2) whether state supreme courts in California or Ohio or other states, eager to dodge Blakely, might adopt the "reasoning" of Gomez.
Friday, April 15, 2005
Tennessee dodges Blakely, so says divided state supreme court
This morning I speculated here, as a follow up to yesterday's major Washington Supreme Court ruling in Hughes about the application of Blakely, that we might be seeing some other state supreme court rulings on Blakely soon. Today the Tennessee State Supreme Court has made me look like a genius by releasing a major Blakely ruling which holds, in a split 3-2 decision, that Tennessee's criminal sentencing laws do not violate the Sixth Amendment guarantee of a jury trial and were not affected by Blakely and Booker.
The decision is Tennessee v. Gomez and Londono, and you can access the majority opinion here and the partial dissent here. Here is just a portion of a lengthy report on the decision that I received via e-mail:
Chief Justice Frank F. Drowota, III, writing for the majority, said enhanced sentences a judge imposed on Edwin Gomez and Jonathan S. Londono were not unconstitutional. The defendants are not entitled to relief based on United States v. Booker and Blakely v. Washington, Drowota wrote. Justices William M. Barker and Janice M. Holder concurred in the decision. "We conclude that Tennessee's sentencing structure does not violate the Sixth Amendment," Drowota wrote.
In a separate concurring/dissenting opinion, Justice E. Riley Anderson disagreed and said the Blakely decision invalidates the enhanced sentences Gomez and Londono received. Anderson was joined in his dissent by Justice Adolpho A. Birch, Jr. "In my view, the presumptive sentences set forth in Tennessee Code Annotated established a fixed point for the defendants' sentences such that the upward departure, based solely on findings made by the trial judge, was imposed in violation of Blakely and therefore violated the defendants' Sixth Amendment right to trial by jury," Anderson wrote....
[The defendants] claimed that under Blakely their sentences should have been the "presumptive minimum" defined by state law. Noting the court's duty "to indulge every presumption in favor of the constitutionality of statutes," the majority rejected the defendants' claim. "In Booker all nine justices agreed that the Sixth Amendment is not implicated by a sentencing statute which permits judge fact-finding, but which does not mandate imposition of any increased sentence upon the judge's finding of a fact," Drowota wrote. The majority explained that, unlike the statutes in Booker and Blakely, Tennessee's sentencing statute does not mandate an increased sentence when a judge finds an enhancement factor. Even after a judge finds an enhancement factor, the judge retains discretion to select any sentence within the statutory range, including the presumptive minimum sentence. The Tennessee statute, Drowota wrote, "does not provide a system which requires or even allows judicial power to infringe upon the province of the jury."
The chief justice wrote, "some defendants will choose to raise and pursue Sixth Amendment Blakely-type claims in the hope that the United States Supreme Court will ultimately disagree with our determination of this issue, and nothing in this decision precludes them from doing so." The majority said its decision is not a "comment upon the work or recommendations" of a Task Force appointed by Governor Phil Bredesen in response to the Blakely decision.
"Determining whether the recommendations of the Task Force should be adopted in whole or in part is a matter for the Governor and the General Assembly," Drowota wrote. The dissent noted the task force proposal would eliminate the statutory presumptive sentence, making the state sentencing act constitutional.
The court also reviewed and unanimously rejected a claim by Gomez and Londono that the testimony by a police detective concerning the statement of another defendant who was tried separately violated their Sixth Amendment right to confrontation.
Updating the state of Blakely in the states
Yesterday's major Washington Supreme Court ruling in Hughes about the application of Blakely is a great read, which covers some issues of universal concern (e.g., whether Blakely error can ever be harmless) and some state-specific issues (e.g, whether Washington trial courts can convene special sentencing juries to find facts to support exceptional sentences). (Hughes answers both these questions in the negative, by the way.)
As this newspaper article details, Hughes is having an immediate impact in at least one case in which a jury had been convened to find facts to support an aggravated sentence following a defendant's guilty plea. The article also effectively discussion the possible broader impact of Hughes in Washington.
The arrival of Hughes and other recent state sentencing action suggests it is time to update this post about the state Blakely pipeline. Washington through the Hughes decision now joins four other states which have had their supreme court speak directly to Blakely issues; the others are Arizona (Brown), Indiana (Smylie), Minnesota (Shattuck), and Oregon (Dilts), although some of these rulings avoided more issues than they resolved. And with major Blakely cases having been argued recently in California (details here) and New Jersey (details here), I suspect will we hear more from state supreme courts soon. Also the Ohio Supreme Court now has a set of Blakely cases being briefed, Michigan has granted full review on Blakely issues (details here), and I suspect litigation is moving apace in other major Blakely-impacted stated such as Colorado, New Mexico, North Carolina and Tennessee.
Thursday, April 14, 2005
Big Blakely doings from where it all started
Returning us to the always intriguing state Blakely story, today Washington's state Supreme Court brings us a major decision in Washington v. Hughes, No. 74147-6 (Wash. Apr. 14, 2005) (available here). Here is the court's helpful introduction:
These three cases were consolidated to address (1) the continuing validity of the exceptional sentence provisions of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, (2) whether the exceptional sentences at issue here violated the petitioners' Sixth Amendment jury trial rights, (3) whether Blakely Sixth Amendment violations can ever be deemed harmless, and (4) what is the proper remedy if we find Sixth Amendment violations that are not harmless.
We hold that the exceptional sentence provisions of the SRA are facially constitutional but that the exceptional sentences at issue violated petitioners' Sixth Amendment rights. Because we also hold that Blakely Sixth Amendment violations can never be harmless and that empanelling juries on remand for re-sentencing would usurp the legislature's authority, we remand for imposition of standard range sentences.
The same court also today decided Washington v. Recuenco, No. 74964-7 (Wash. Apr. 14, 2005) (available here), which fills out the state sentencing story with this ruling:
Arturo Recuenco was charged with second degree assault with a deadly weapon enhancement because he assaulted his wife while holding a gun. At trial, the jury returned a guilty verdict on the assault charge and a special verdict that Recuenco was armed with a deadly weapon. But the trial court imposed a sentence enhancement based on Recuenco's being armed with a firearm, which was greater than that for a deadly weapon. This court granted review to consider whether imposition of a firearm enhancement without a jury finding that Recuenco was armed with a firearm beyond a reasonable doubt violated Recuenco's Sixth Amendment right to a jury trial as defined by Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. As per our reasoning in State v. Hughes, No. 74147-6 (Wash. April 14, 2005), we hold that the trial court's imposition of the firearm enhancement violated Recuenco's Sixth Amendment right to a jury trial. We reverse the Court of Appeals, vacate Recuenco's sentence, and remand for resentencing based on the one-year deadly weapon enhancement supported by the jury's special verdict.
Another morning of interesting sentencing news
Just like yesterday, this morning's newspapers brings an array of interesting and important sentencing reports:
- This article from Washington provides a detailed and intriguing report on a "sentencing phase" jury trial convened to find facts to support an aggravated sentence following a defendant's guilty plea to second-degree murder in a child abuse case.
- This article from Utah reports on a Booker remand from the 10th Circuit, and gives particular attention to the defendant's cooperation (which, by the way, was a central feature of all the 8th Circuit's Booker work yesterday detailed here).
- This article from the New York Times about Eric Rudolph's plea deal, which took the death penalty off the table, provides food-for-thought about whether the real benefit derived from the death penalty comes from its impact on plea bargaining. TalkLeft has this interesting post about the Rudolph deal, which includes a lists of infamous defendants that will likely be sharing a federal prison with Rudolph.
Friday, April 08, 2005
Colorado court says Blakely retroactive to Apprendi
Providing perhaps the biggest development in a big week, I just got news that yesterday the Colorado Court of Appeals in People v. Johnson, No. 03CA2339 (col. App. Apr. 7, 2005) (available here) concluded "that Blakely applies retroactively to the date that Apprendi established its new rule." Here's the court's analysis:
In People v. Bradbury, 68 P.3d 494 (Colo. App. 2002), a division of this court concluded that Apprendi did not apply retroactively because it "established a new rule" and "imposed a new obligation" upon trial courts. People v. Bradbury, supra, 68 P.3d at 497.
We adopt the reasoning in Bradbury and conclude that because Apprendi established a new rule which had the effect of overriding a widespread practice of allowing judges to decide facts used to aggravate sentences, Blakely's interpretation of that rule must necessarily apply retroactively to the date the rule was established. Writing for the majority in Blakely, Justice Scalia clearly limited the holding back to the date of Apprendi when he wrote: "the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely, supra, 124 S.Ct. at 2537.
Because Blakely explains and clarifies Apprendi, we apply it retroactively to defendant's sentence, which was imposed after Apprendi was announced. We note at least two federal cases which have held that Blakely does not apply retroactively to collateral attacks against convictions. See, e.g., In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004); United States v. Stoltz, 325 F. Supp. 2d 982, 987 (D. Minn. 2004). In concluding that retroactive application should be made here, we nevertheless do not apply Blakely to collateral attacks against convictions unless those convictions postdated Apprendi. People v. Dunlap (Colo. App. No. 01CA1082, Sept. 9, 2004).
Interesting Blakely development in Michigan
Soon after Blakely was decided last summer, the Michigan Supreme Court in People v Claypool, 470 Mich. 715 (2004) (discussed here) dropped a footnote asserting that Michigan's guideline scheme operates in a manner that avoids Blakely problems. That assertion came without full briefing of the issue and, as detailed in this post, is not perfectly obvious to everyone.
Today I received news that last week the Michigan Supreme Court entered the following order in the case of People v Drohan:
On order of the Court, the application for leave to appeal the October 12, 2004 judgment of the Court of Appeals is considered, and it is GRANTED, limited to the issue whether Blakely v Washington, 124 S Ct 2531; 159 L Ed 2d 403 (2004), and United States v Booker, 125 S Ct 738; 160 L Ed 2d 621 (2005), apply to Michigan's sentencing scheme. The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the question presented in this case may move the Court for permission to file briefs amicus curiae.
The lower court opinion in Drohan is at People v Drohan, 264 Mich. App. 77, 689 N.W.2d 750 (Mich. App. 2004). In that opinion, Michigan's intermediate appellate court dropped this interesting footnote:
We further note defendant's allegation in a supplemental brief that Blakely v. Washington, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applies to the sentencing in this case. We disagree with this contention. Indeed, the Michigan Supreme Court noted in People v. Claypool, 470 Mich. 715, 730 n. 14, 684 N.W.2d 278 (2004), that Blakely does not affect Michigan's sentencing system. We disagree with defendant that this statement from Claypool is not binding on us. Nevertheless, given the large number of recent criminal appeals in which this issue has been raised, we request that the Supreme Court issue its opinion concerning whether footnote fourteen in Claypool constitutes binding precedent.
Arguments over Blakely in California
As noted here yesterday, the California Supreme Court yesterday finally heard arguments on a state Blakely case, and this morning the Sacramento Bee is reporting in this article that the tenor of the arguments suggested that Court might look to avoid Blakely's application in California:
The nation's turmoil over sentencing practices may not be extended to California, justices of the state Supreme Court indicated Thursday, after wrestling with the implications of a wave of rulings by the U.S. Supreme Court.
I am very interested to hear more analysis of these arguments; perhaps readers who watched the arguments might use the comments to share their impressions.
Thursday, April 07, 2005
California Supreme Court arguments in Blakely cases
I have been wondering when the California Supreme Court would hear arguments on its Blakely cases (on which it granted review back in July 2004). Apparently, the time is now, as I have been told that a live webcast of these arguments is playing right now at this link. For background and the briefs in these California Blakely cases, check out this webpage from the First District Appellate Project.
Fascinating state Blakely rulings
With so much Booker action in the circuits (examples here and here), it is dangerously easy to forget about all the interesting state Blakely stories. Fortunately, readers help me discover notable state Blakely developments, and this week I have seen these quite interesting Blakely rulings from state intermediate appellate courts:
- From Arizona, a lengthy decision in State v. Aleman, 2005 WL 749679 (Ariz. App. Div. 2, Apr. 04, 2005), thoughtfully covers a range of Blakely issues surrounding what it calls "Blakely-compliant" and "Blakely-exempt" aggravating factors.
- From Minnesota, a thoughtful decision in State v. Thompson, No. A04-1401 (Minn. App. Apr 05, 2005) (available here), holds that "in order to constitute a valid waiver of the Sixth Amendment right to a jury trial [under Blakely], a defendant must explicitly acknowledge and waive, either in writing or orally on the record, her right to testify, to have prosecution witnesses testify in open court in her presence, to question the prosecution witnesses, and to require any favorable witnesses to testify in her defense."
- From Washington, a thoughtful decision in State v. Griffin, 2005 WL 746052 (Wash. App. Div. 1, Apr. 04, 2005), rejects a Blakely objection to judicial fact-finding to support revoking the defendant's driver's license for one year; the court concluded that the revocation was not a form of "punishment" to which Blakely applied.
Friday, April 01, 2005
Returning to Ohio
Weather permitting, I'll be heading back to Ohio this weekend. But I see from the papers that Ohio sentencing developments have not slowed down in my absence. This article reviews the state of Blakely in Ohio (background here and here and here), and it suggests that Ohio's Attorney General is now advocating a legislative fix for possible Blakely problems in Ohio. And this article discusses an important new ruling from an Ohio appellate court concerning the application of a change in Ohio's parole procedures. When I get back to Ohio and my regular computer facilities, I hope to be able to return to active blogging about these and other developments in Ohio and beyond.
Tuesday, March 29, 2005
State debates over whether to Blakely-ize or Booker-ize
Among the many notable facets of the Booker decision was that provided little help to state courts struggling to interpret and give effect to Blakely. But, especially as states are working on fixing their sentencing systems to deal with Blakely issues, Booker is having an impact on state debates in courts and legislatures and commissions. Specifically, not only has Booker made clear that advisory guidelines are constitutional, but it seems to have given advisory guidelines a good name.
The impact of Booker can be seen in this editorial from Washington, which urges the state legislature to reject a bill that apparently provides for jury fact-finding of aggravating factors (Blakely-izing), and advocates instead the adoption of an advisory guidelines system (Booker-izing). Similarly, INCourts reports here (building on a report from the Indiana Law Blog here) that "there has been an amendment to [Indiana's] Senate Bill 96, the General Assembly's attempt to deal with Blakely, that would appear to Booker-ize Indiana's sentencing statutes." Before the amendment, Indiana's legislative fix was headed toward Blakely-izing (which is the remedy now in place because it was adopted by the Indiana Supreme Court in its big Smylie decision earlier this month (basics here, commentary here and here)).
As previously reported, Tennessee is headed toward a Booker approach in its developing Blakely fix (details here), and Alaska has already passed legislation that involves a little bit of Booker-izing and a little bit of Blakely-izing of its sentencing system (details here).
Wednesday, March 23, 2005
Alaska's Blakely fix is now law
Earlier this month I reported here on the bill in Alaska designed to bring the state's sentencing system into compliance with Blakely. This article indicates that Alaska's Blakely fix became law on Tuesday.
I believe the new sentencing law in Alaska expands sentencing ranges, but also provides for jury consideration of certain sentencing-enhancing aggravators. Thus, it appears that Alaska has adopted, through legislation, a remedy for its sentencing system that involves a little bit of Booker-izing and a little bit of Blakely-izing.
UPDATE: Additional information about Alaska's Blakely fix can be found in this press release, which also has links to the complete bill text and this fact sheet on the legislation. The press release quotes one Alaska legislator as saying "The Blakely decision had the effect of throwing our entire criminal justice system into turmoil." And the fact sheet indicates that one aspect of the new legislation "[p]rovides a defendant the right to petition the Court of Appeals on grounds of excessiveness when a sentence is handed down within a range."
Tuesday, March 22, 2005
Pondering the state Blakely pipeline
Picking up on my post here about all the Booker-inspired GVRs, Michael Ausbrook at INCourts notes here that he can only find one Blakely-inspired GVR (the Dilts case from Oregon). That interesting discovery has me thinking more broadly about the pace and pattern of sentencing litigation in the state courts and about when and how the Supreme Court will consider state Blakely issues on the merits .
First, it is interesting that, nearly nine months since Blakely, less than half of the states struggling with major Blakely issues have had their state supreme courts weigh in. My own notes show major Blakely rulings from state supreme courts only in Arizona (Brown), Indiana (Smylie), Minnesota (Shattuck), and Oregon (Dilts), and these rulings often punted as many issues as they resolved. Meanwhile, we are still awaiting serious high court Blakely input in California, Colorado, New Jersey, New Mexico, North Carolina, Ohio and Tennessee.
Second, it bears noting that there are some broad and common Blakely issues of concern to many states (e.g., Blakely's applicability to consecutive sentencing), and a number of narrow and unique Blakely issues of concern only to particular states (e.g., Blakely's applicability to Ohio's "worst form of the offense" enhancement). Also, there are a range of Blakely remedy/pipeline issues that implicate constitutional provisions like double jeopardy and due process. Whether, when and how the Supreme Court will take up these "second-generation" Blakely issues from the states should be an interesting story for many years to come.
Maryland's developing Blakely fix
Because Maryland has an advisory guideline system, I did not think that Blakely could make the Old Line State crabby. But I have recently been informed that two bills, which are designed to convert some statutory penalty enhancements into offense elements, have been making their way around the Maryland legislature.
This Fiscal and Policy Note provides background on the Maryland House bill. Here are some explanatory highlights:
Maryland has a largely indeterminate sentencing structure that features, in most instances, only a maximum statutory sentence. While Maryland does have a sentencing guideline system to try to provide greater uniformity of sentencing for offenses, it is a discretionary system rather than mandatory and is usually not based on a finding of additional facts to determine the length of sentence.
However, Maryland does have a handful of statutory crimes that provide for enhanced penalties based on the existence of certain facts beyond the elements of the underlying crime. The committee has recommended the enactment of legislation during the 2005 legislative session to correct this apparent defect under Blakely and Apprendi by repealing the factual penalty enhancement in the penalty provisions and to place the factual circumstance that leads to the increased penalty into the factual elements of the underlying offense to be charged as its own, separate, new offense.
Monday, March 21, 2005
New Jersey's view of Smylie and Shepard
As detailed here and here, last week the New Jersey Supreme Court heard arguments on three major Blakely cases. Following the arguments, the state sent the NJ Supreme Court two follow-up letters, which can be downloaded below, concerning the meaning and impact of the Indiana Supreme Court's decision in Smylie (basics here, commentary here and here and here), and the US Supreme Court's decision in Shepard (basics here, commentary here and here and here).
These follow-up letters are interesting not only for the accounts they give of Smylie and Shepard but also as another example of how differently the Supreme Court's rulings in Blakely and Booker can be understood and characterized.
The Blakely mess in Ohio hits the papers
As I spotlighted here last week, the recent application of Blakely to Ohio's sentencing laws by Ohio's First Appellate District's in Montgomery (available here) and Bruce (available here) marked a significant turning point in the story of Blakely in Ohio. (General background on Blakely's application to Ohio's sentencing laws can be found here and here, with post-Booker developments here and here.) Today, through a pair of interesting articles, the Cincinnati Post highlights some of the fall-out:
- This overview article provides background on the Montgomery and Bruce decisions and details some of the reactions they have prompted.
- This companion article explains that because of concerns "with the uncertainty caused by two recent appeals court rulings, a Hamilton County judge may not send any criminals to prison until it's resolved."
Notably, in State v. Lowery, 2005-Ohio-1181 (1st Dist. Mar. 18, 2005) (available here) the First Appellate District applied Bruce again, but then found other ways to affirm a sentence. Here's the court's summary explanation of its work in Lowery:
We agree with Lowery that Blakely precluded the judicial fact-finding necessary under Ohio's sentencing scheme to impose the maximum sentence for the aggravated robbery because it was among the "worst forms" of the offense. See State v. Bruce, 1st Dist. No. C-040421, 2005-Ohio-373. But we conclude that the court's finding was harmless error because the trial court's imposition of the maximum sentence on an alternative ground, that he posed the "greatest likelihood of future crime," was expressly based on his history of prior convictions and thus did not violate Blakely and was supported by the record. Finally, because the case law surrounding Blakely does not, at least at this time, extend to the judicial findings necessary to impose consecutive sentences, and because the record supports the trial court's findings, we affirm the trial court's decision to run the sentences for the two offenses consecutively.
Thursday, March 17, 2005
An insightful snapshot of Smylie
The biggest recent development in the always intriguing Blakely in the states storyline was last week's Smylie decision by the Indiana Supreme Court which applied Blakely to Indiana's sentencing scheme (basics here, commentary here and here). Indiana attorney Michael Limrick has produced an terrific article on the case, entitled "Snapshot of Smylie," to appear in a local bar publication. The article, which covers a host of issues that should be relevant to any state struggling with Blakely, can be accessed at this link. Here's the opening paragraph:
On March 9, the Indiana Supreme Court stepped into the Blakely fray and ruled in Smylie v. State that Indiana’s felony sentencing system, as presently written, violates the Sixth Amendment right to trial by jury. Yet, as with seemingly every decision tackling the United States Supreme Court’s recent sentencing jurisprudence, Smylie left more questions than answers. Thus, while an important step, Smylie is hardly the last in Indiana’s trail of litigation following Blakely.
UPDATE: Michael Ausbrook over at INCourts quotes in this post perhaps the most important and far-reaching insights to be found in Michael Limrick's discussion of Smylie.
Tuesday, March 15, 2005
Beware the Ides of Blakely March?
Perhaps to celebrate the Ides of March, or sentencing March Madness, the technology has been cranky this morning and I have been struggling to access or post to the blog. But all seems well now, and thus I can spotlight a number of articles in today's newspapers covering Blakely state developments:
- From Indiana, this article examines the possible impact of the last week's Smylie decision by the Indiana Supreme Court which applied Blakely to Indiana's sentencing scheme (basics here, commentary here and here).
- From New Jersey, this article discusses yesterday's arguments in the New Jersey Supreme Court in three major Blakely cases (basics here, commentary here). Relatedly, Michael Ausbrook at INCourts has an extended account of the NJ arguments posted here.
- From Ohio, this article reviews the recent Montgomery decision from Ohio's first appellate district applying Blakely to Ohio's sentencing scheme (previously discussed here).
Monday, March 14, 2005
Report on the NJ Blakely arguments
Michael Ausbrook at INCourts has this post discussing this morning's arguments in the New Jersey Supreme Court in three major Blakely cases (background here). I watched a good part of the arguments via webcast, and I concur with Michael's view that the NJ Supreme Court seemed inclined to apply Blakely to New Jersey's sentencing scheme, and also seemed most interested in a Booker-like remedy. I believe the arguments should be archived here before too long.
More big Ohio Blakely news
I have frequently spotlighted the interesting stories surrounding the application of Blakely to Ohio's sentencing laws (general background here and here, post-Booker developments here and here). The tale continue with the Ohio First Appellate District's ruling late last week in State v. Montgomery, 2005-Ohio-1018 (1st Dist. Mar. 11, 2005) (available here)
As reported here last month, though most of Ohio's intermediate appellate courts had found Blakely largely inapplicable in Ohio, the First Appellate District in State v. Bruce, 2005-Ohio-373 (Ohio 1st Dist. Feb. 4, 2005) (available here), concluded that Booker significantly altered the Blakely analysis in Ohio. The Bruce court explained that, though it had previously concluded that "Blakely did not materially affect the Ohio sentencing scheme," the Supreme Court's "recent decision [in] Booker [makes] clear that this interpretation was wrong."
Interestingly, the Bruce court only had occassion to address Blakely's application to judicial fact-finding in support of maximum terms under Ohio law, but Mongtomery now extends the analysis to judicial fact-finding in support of any sentence above the Ohio statutory minimum (and does so despite the fact that two other Ohio appellate districts have rejected the approach taken in Bruce):
As we have noted previously, Blakely's bright-line rule is that any fact that increases the penalty for a crime above the prescribed statutory maximum must be found by a jury or admitted by the defendant. In Bruce, we held that the statutory maximum is the maximum term a sentencing court can impose without any additional findings by the court. Under R.C. 2929.14(B), the only prison term a sentencing court can impose on an offender who has not previously served a prison term, without making additional findings, is the minimum prison term allowed by law for the offense. Thus, we hold that the statutory maximum for an offender who has not previously served a prison term is the minimum prison term allowed by law for the offense....
While our decision today to treat the minimum prison term as the statutory maximum for offenders who have not previously served a prison term is in conflict with the Third Appellate District's decision in State v. Trubee and the Tenth Appellate District's decision in State v. Abdul-Mumin, we believe that it comports with our holding in Bruce, where we explained that the "statutory maximum" sentence is the maximum sentence a court may impose without any additional findings, and with Booker, where the Supreme Court reaffirmed the bright-line rule that any fact that affects the level of punishment above the statutory maximum must be found by a jury or admitted by the defendant.
As I have highlighted before, in memos linked here, the Ohio Criminal Sentencing Commission has been tracking Blakely developments closely. It appears that this Commission will now need to update its two memos (available here and here) on Blakely and Booker in Ohio. Even more importantly, the Montgomery ruling highlights that the Ohio Supreme Court needs to jump into this scrum as soon as possible.