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August 21, 2004

The next big Blakely issue: the prior conviction exception

As noted before here, the theoretical soundness of Almendarez-Torres' "prior conviction" exception to the Apprendi/Blakely rule has been widely questioned, and Justice Thomas' statements suggest that there are no longer five Justices who support this exception. Nevertheless, the "prior conviction" exception remains good law (for now), and we are continuing to see courts in the wake of Blakely giving this exception a broad reading.

The recent Indiana state court decision in Carson (details here) is one very recent example of a (questionable) state ruling applying this exception expansively to escape Blakely's reach. Similarly, a recent unpublished order from California in People v. Cairati, No. A104764 (Cal. Ct. App., Aug. 19, 2004) (available here) gave the Almendarez-Torres exception a broad application through this holding:

Here, in imposing the aggravated term of 11 years in state prison, the court relied on several aggravating factors including defendant's "prior convictions [that] show a continuing pattern of violence and escalation which is frightening," the viciousness of the current offense, that defendant was armed with a shovel when he committed the offense, and his prior poor or unsuccessful performance on probation. That defendant had prior convictions that were numerous or of increasing seriousness is a specific factor supporting an aggravated term. Assuming Blakely applies to the California determinate sentencing scheme, under Apprendi, as reiterated in Blakely, the fact of defendant's prior convictions does not require a jury determination. Because even a single aggravating factor is sufficient to justify the imposition of the aggravated term, the trial court could properly rely on defendant's prior convictions without a jury determination in imposing the aggravated term.

The Booker and Fanfan cases will not give the Justices a direct opportunity to address the scope and application of the prior conviction exception. It has been noted here that the High Court, just before Blakely came down, granted cert in a case, US v. Shepard, 03-9168, that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely. Yet, as detailed here and here, Shepard is a federal case technically about a little issue in federal law. And oral argument in Shepard likely will not take place before next year.

Just as the federal criminal justice system needs a quick clarification of Blakely's applicability to the federal guidelines, I think both state and federal criminal justice systems will soon need a direct clarification of the validity and scope of the prior conviction exception in the wake of Blakely.

August 21, 2004 at 02:51 PM | Permalink


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On August 19th, the Pennsylvania Supreme Court handed down an interesting opinion on the "fact of a prior conviction" exception to the Apprendi / Blakely rule: Commonwealth v. Aponte, 2004 Pa. LEXIS 1922 (Pa August 19, 2004). Because Aponte had two prior drug convictions, the third conviction subjected him to a doubled sentence. The court affirmed under the "prior conviction" exception and also against a state con-law challenge. It may be slicing the bread entirely too thin, but "the fact of a prior conviction" of Apprendi / Blakely need not, necessarily, encompass the *type* of offense represented by the prior convictions. That is, the question should arise whether Apprendi and Blakely except just proof of redicivism plain and simple, or whether they except other "facts" that are in some sense collateral, such as the type of offense.

This should not be much of a question if notice is the key to the Apprendi / Blakely program. Aponte, for example, had at least constructive notice of the Pennsylvania statute that he would be subject to a doubled sentence for a third drug offense; and he knew, presumably, before he committed the third offense, that he'd already been convicted for two prior drug offenses. This is at least where I think Scalia would come out on this, judging from his comment in Blakely about the burglar who knows he risks 40 years in prison if a burglary statute provides for a range of 10-40 years.

Posted by: Michael Ausbrook | Aug 23, 2004 1:12:29 AM

We have raised similar issues in Kansas (I am an appellate public defender) regarding not only the fact of a prior conviction, but the nature of the underlying conviction. But so far, no court has seemed interested.

Posted by: Randall Hodgkinson | Aug 23, 2004 10:07:44 AM

Im a parent of a son named Jarrett Little who is about to be sentenced on April 23 2007 for class 5 menacing. He took a plea with DA. Charges were orginally second degree assault and class 5 menacing. I think that they want to enhance the sentence because Jarrett did 4 years for prior second degree assault. The judge did mention to his public defender about the Blakely vs. Washington law so I was doing some reading up on it.

Posted by: Cecelia | Apr 18, 2007 9:37:14 AM

I am a parent of a son, whose 1998 conviction of "armed robbery" was aggravated, based on a prior burglary charge. We live in the state of Georgia, and I've not noticed any mention of application of the Blakely decision in the state of Georgia..I'd be interested to know how I might be able to research such application.

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