What exactly are Blakely "facts"?

A group of cases handed down on Tuesday by the Minnesota intermediate appellate courts continued the state's trend of punting Blakely claims back to sentencing courts for initial briefing and consideration. See, e.g., State v. Vance, 2004 WL 1925143 (Minn. App. Aug 31, 2004); Smith v. State, 2004 WL 1925436 (Minn. App. Aug. 31, 2004); State v. Griffin, 2004 WL 1925829 (Minn. App. Aug. 31, 2004). A prior series of Minnesota remands on Blakely grounds can be found here .

However, two other recent opinions from Minnesota provide more examples of efforts to read Blakely narrowly and also raise issues discussed in conjunction with Ohio law in this formalism meets functionality post. In State v. Henderson, 2004 WL 1925395 (Minn. App. Aug. 31, 2004), the court holds that "Blakely does not apply" to a judge's upward departure from the guidelines based on a judicial finding that the defendant's "present offense is a felony that was committed as a part of a pattern of criminal conduct." And in State v. Allen, 2004 WL 1925881 (Minn. App. Aug. 31, 2004), the court concludes that "Blakely does not appear applicable" in a case involving an upward departure based on a judicial finding that the defendant was "not amenable to probation." Both cases, without much analysis, seem to be saying that the judge's justification for the enhancement was based on a "legal" conclusion, not a factual finding that implicates Blakely.

The notion that Blakely only requires narrow jury fact-finding, and still permits judges to make distinct "legal" sentencing determinations, finds some support in Justice Scalia's concurring opinion in Ring v. Arizona. In explaining his view of the Court's holding that juries must find the aggravating factors which justify the death penalty, Justice Scalia emphasizes that:

today's judgment has nothing to do with jury sentencing. What today’s decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so — by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase.

I read this passage to suggest that, at least in Justice Scalia's view, state law might still authorize judges to make a "legal" conclusion to enhance a sentence as long as that conclusion is based on a fact found by a jury or admitted by the defendant. Yet, spinning out this argument eventually run smack into the Blakely holding itself: arguably the sentencing judge's finding of "deliberate cruelty" was not a pure finding of fact, but rather involved a conclusion of law based on some facts that may have been admitted by the defendant. Moreover, Justice Scalia's Blakely opinion speaks of limits on the judges' sentencing authority "without any additional findings."

In other words, though Blakely and its predecessors speak of juries as finders of facts, perhaps the proper reading of the decision is that a jury must make any and all findings of whatever nature that are required by state law to permit an enhanced sentence. That is, Blakely may mean that if state law requires any finding to authoirze an increased punishment — whether that finding is called a question of fact or a question of law or Mary Jane — then that finding must be made by a jury or admitted by the defendant. If this is the proper understanding of Blakely, then I think the Minnesota decisions in Henderson and Allen are erroneous.