Blakely and victims' rights

A fascinating new Blakely issue emerged in a decision from the Arizona state courts yesterday. In State ex rel. Romley v. Dairman, 2004 WL 1774619 (Ariz. App. Aug. 10, 2004), the court was considering the impact of the Victims' Bill of Rights in Arizona's constitution on a sentencing proceeding in a child molestation case. In the course of its analysis, the court had interesting things to say about the impact of Blakely on these sorts of issues:

We must address the impact of the United States Supreme Court's recent decision in Blakely v. Washington, No. 02-1632 (U .S. June 24, 2004) as it relates to the victims' rights issue before us.... Blakely obviously affects whether a trial judge, without a waiver from the parties, can aggravate a sentence based on the statutory aggravating factor of "physical, emotional and financial harm caused to the victim." A.R.S. § 13-702(C)(9).

We do not rule on the constitutionality of Arizona's sentencing scheme because that issue has neither been presented nor briefed. We refer to Blakely for two reasons only: (1) it is clear to us that the trial court will need to consider Blakely when providing for the particular type of sentencing proceeding (judge or jury) at which the victim has rights, and (2) regardless of the type of sentencing proceeding that Blakely constitutionally requires, the trial judge has a statutory and Arizona constitutional mandate to allow for the presentation of permissible evidence by a victim at a sentencing proceeding whether that proceeding is before the trial judge, the jury, or a combination of the two. See Ariz. Const. art. 2, § 2.1(A)(4) (victims have the right to "be heard at any proceeding involving a post-arrest release decision, a negotiated plea and sentencing ") (emphasis added); A.R.S. § 13-4410 (requiring that a victim be notified of her rights, including the right "to make a victim impact statement" and "to be present and heard at any presentence or sentencing proceeding") (emphasis added). Victims' rights are not restricted to sentencing proceedings conducted by the court. They must also be provided for in sentencing proceedings that are constitutionally required to be undertaken by a jury.