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November 2, 2004

Three Strikes meets Blakely/Apprendi

As followers of the blog know from many prior posts (including here and here and here), today is a big day for the future of Three Strikes in California because of voter consideration of Proposition 66, which would narrow the reach of the most expansive and consequential Three Strikes law in the nation. Lots of interesting stories of criminal justice law and policy could be told depending upon the outcome of Proposition 66.

And speaking of interesting, just appearing on Lexis is an interesting Ninth Circuit habeas ruling from last week which explores the possible intersection of Three Strikes and Blakely/Apprendi. In Stevenson v. Lewis, 2004 U.S. App. LEXIS 22511 (9th Cir. Oct. 28, 2004), the defendant claimed Apprendi was transgressed when the state sentencing court denied a motion to strike his prior convictions based on "consideration of facts not proven to a jury beyond a reasonable doubt, such as evidence suggesting that he possessed cocaine for sale and a gun."

Though a clever argument, the Ninth Circuit detailed in Stevenson the reasons why it could not prevail under current law:

Apprendi, however, does not apply to the trial court's discretionary decision ... to strike a prior conviction.... Apprendi carved out a "narrow exception" for sentence enhancements based on "the fact of a prior conviction." The Almendarez-Torres exception was not altered by Blakely....

Because the sentence enhancement was based on Stevenson's four prior convictions, the calculation of his sentence falls within the Almendarez-Torres exception to Apprendi. Furthermore, because the trial judge's consideration of evidence not proved to the jury constituted a discretionary decision not to decrease Stevenson's sentence, Apprendi is inapposite. Finding a defendant to be outside the "spirit" of the Three Strikes law is a mitigating factor in sentencing, rather than a prerequisite to imposing an enhanced sentence. Thus, the trial judge's consideration of facts not proved to a jury did not offend Stevenson's constitutional rights under Apprendi, and habeas relief is unavailable. Accordingly, the district court did not err in dismissing Stevenson's Apprendi claim.

UPDATE: Proving how interestingly diverse these sentencing stories can be from state to state, I also just discovered on Lexis a ruling from Pennsylvania which suggests its Three Strikes law may have Blakely problems. In Commonwealth v. Guilford, 2004 Pa. Super. LEXIS 3920 (Pa. Super. Nov. 1, 2004), a Pennsylvania intermediate appellate court gives us this noteworthy dicta in a footnote:

We note that in light of the decision of the United States Supreme Court in Blakely v. Washington, 124 S. Ct. 2531 (2004), the provision of section 9714(a)(2) of the "three strikes" law, allowing imposition of a life sentence without parole where the sentencing court determines that "25 years of total confinement is insufficient to protect the public safety," is called into serious question.

November 2, 2004 at 12:49 PM | Permalink


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My son is confined and waiting his appeal in the Supreme Court.He gave me your website to pass information onto him. Thank-you. Sharon

Posted by: Sharon Jackson | Dec 26, 2004 1:38:01 PM

I am a sister to a man that is serving 25-50 years under the 3 strike law here in pennsylvania. I am trying to do some research for him to find out how many men in Dauphin County, PA serving a three strike sentence.

Posted by: juanita grant | Jul 6, 2005 2:28:46 PM

I am the sister of Thomas Edrington who
has been serving 25-50 years under the 3
strike law. He has been incarcerated since
1998. He is doing a lot of his own legal
work and I'm trying to help him. I am a
paralegal and understand a lot about the
law. However, I need to know, how many
people in dauphin County, Pennsylvania
have received a sentence under the 3 strike
law. Thank you.

Posted by: Juanita Grant | Aug 26, 2007 10:23:58 PM

my name is nicole manuel and my uncle Timmy manuel is incarcerated under the pa strike law. he serving 25-50yrs.

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