More Blakely developments in Ohio

I have previously highlighted that Ohio sentencing laws and practices make the state a real Blakely bellwether because the impact of Blakely's formal rule on Ohio's functional sentencing laws could be extreme or extremely minor (background here and here). I have been following the Ohio Blakely story closely (more details here), and there have been a set of recent state intermediate court rulings that continue this interesting state Blakely tale.

Helpfully, a terrific criminal appellate attorney sent me today (and allowed me to share) a helpful round-up of recent Ohio decisions.  Here is his appellate district-by-district update of the state of Blakely in Ohio:

Fourth District

The Fourth District decided to stick by State v. Scheer, 4th Dist. No. 03CA21, 2004-Ohio-4792 [rejecting a Blakely claim], in State v. Wheeler, 4th Dist. No. 04CA1, 2004-Ohio-____. The opinion is not yet online, but should be within a week. I think the court is clear that it does not want to revisit Scheer until the Ohio Supreme Court has ruled. That means don't waste your time trying to persuade that court to change its mind. Preserve Blakely, and then concentrate on issues that might persuade the court to reverse on other grounds.

Unfortunately, the Fourth District decided the Blakely issue even though it reversed because of a Comer error [based on a failure to articulate adequately sentencing rulings]. This means Mr. Wheeler has to appeal to the Ohio Supreme Court to preserve his Blakely issue. Fortunately for Mr. Wheeler's issues, but unfortunately for Mr. Wheeler, he has a long West Virginia sentence to serve before his Ohio term starts. So there is time to take this to the Ohio Supreme Court.

The time factor leads to a strategy point. It's worth thinking about not raising Blakely if there is another strong sentencing issue. Raising Blakely risks getting an adverse Blakely decision, like Wheeler. That could mean a year or more delay in resentencing. But if you ignore Blakely and win on another issue, you can almost certainly raise Blakely for the first time in the trial court. But a lawyer would need to be extremely confident of a victory on the non-Blakely issue to try this all-eggs-in-one-basket strategy. There may also be ethical issues about dropping a valid claim without a client's consent.

Fifth District

Over a dissent, the Fifth District said Blakely does not apply to Ohio. State v. Hughett, 5th Dist. No. 04CAA06051, 2004-Ohio-6207.

Sixth District

The Sixth District refused to consider Blakely because the defendant raised the issue in his reply brief. State v. Warden, 6th Dist No. WD-03-065, 2004-Ohio-6306. The court said the defendant should have asked for leave to amend his brief.

Eighth District

The Eighth District is all over the map depending on what panel you get.

Eleventh District

The Eleventh District correctly declined to address Blakely when it reversed the sentence on other grounds. State v. Sprowls, 11th Dist. No. 2003-L-056, 2004-Ohio-6328.