Confining Blakely's impact in its home state

As folks in Washington monitor the recent activity of the Mount St. Helens volcano, an intermediate appellate court in Washington has done its best to limit the impact of the Blakely earthquake. In State v. Van Buren, 2004 WL 2222263 (Wash. App. Div. 2 Oct. 05, 2004), the court makes the following rulings about the reach and application of Blakely under Washington sentencing law:

First, Blakely applies to all cases in which review was not final on June 24, 2004. Second, under Blakely, a jury must find disputed facts beyond a reasonable doubt before the sentencing court may rely on these facts to impose an exceptional sentence above the standard range. Third, Blakely does not require a jury determination of a defendant's criminal history. Fourth, the calculation of a defendant's offender score is not a question of fact but a legal calculation made by the sentencing judge after consideration and resolution of legal issues and rulings on statutes and laws that apply to the defendant's criminal history. Thus, a defendant's offender score is not a question of fact that must be proved to a jury beyond a reasonable doubt. Fifth, whether there are substantial and compelling reasons to impose an exceptional sentence is a "proportionality" type judgment for the sentencing court. Sixth, whether a defendant with an offender score greater than nine receives "free crimes" if sentenced within the standard range is part of the calculation of a defendant's offender score and is not a question of fact for the jury.

The thorough and thoughtful opinion in Van Buren thus serves to limit the impact of Blakely in various important ways: it calls Blakely a new rule and consequently only applicable to cases still on direct review, and it relies upon the "prior convictions" exception and a robust fact/law distinction to restrict the number and type of findings that must be made by a jury under Washington law.

Though some of the conclusions reached in Van Buren about Blakely's reach might be disputed, the court's decision is well-reasoned and paints a picture of how Blakely can be reasonably integrated into at least some existing guideline systems without creating too much "carnage and wreckage."