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October 15, 2004

Oregon gives Blakely broad reading

As I have detailed here, I see an essential offense/offender distinction at the heart of the jury trial right. And earlier this week, a New Jersey appellate court in NJ v. Abdullah, 2004 WL 2281236 (N.J. Super. A.D. Oct. 12, 2004), relied on an offense/offender distinction to limit the reach of Blakely (details here).

But this idea has not carried the day on the other side of the country: an Oregon appellate court has now turned back a similar argument in State v. Warren, 2004 Ore. App. LEXIS 1305 (Or. App. Oct. 13, 2004), when considering Blakely's applicability to the state's dangerous offender sentencing scheme. Here is the Warren court's explanation of the offense/offender argument and the court's rejection of it:

[T]he state argues that, consistently with Apprendi, a fact that results in the enhancement of a defendant's sentence beyond the prescribed statutory maximum for a class of crime must be found by a jury only when that fact pertains to the manner of commission of the crime at issue, not when it "serves merely to characterize the defendant." The state reasons that, by recognizing an exception for facts relating to a defendant's prior convictions, the Apprendi Court implicitly recognized that other facts characterizing the defendant himself or herself, as opposed to facts pertaining to the commission of the crime at issue, also need not be found by a jury. According to the state, the Court's failure to mention any other types of facts that are not subject to a jury determination is of no significance because even the fact of a defendant's prior convictions was not at issue in Apprendi and the Court's mention of that type of fact was therefore mere dictum....

We disagree with the state's characterization of Apprendi. The Court made clear in that case that the relevant distinction relates, not to the type of fact at issue, but to the consequence of finding it, namely, whether or not such a finding results in a sentence beyond the prescribed statutory maximum for the offense found by the jury. The Court established as a matter of general principle that any fact that has the consequence of enhancing a prescribed statutory sentence constitutes, in effect, an element of an aggravated offense and therefore must be pleaded and proved. The Court then recognized an exception for one type of fact — a defendant's prior convictions — that may have that result. It explained, however, that such a fact need not be pleaded and proved only because it already has been subjected to a previous determination by a jury. In other words, the basis for the exception from the general rule is procedural, not substantive. Indeed, Blakely itself characterizes the principle regarding sentencing factors that the Court established in Apprendi as a "bright-line rule." Accordingly, the state's proposed substantive category of "facts characterizing the defendant" is irreconcilable with Apprendi.

October 15, 2004 at 02:51 AM | Permalink


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