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January 27, 2005
Notable New Jersey Blakely case
I have detailed in posts here and here and elsewhere the interesting recent Blakely developments in New Jersey, and a decision today in NJ v. Anderson, NO. A-3932-03T4 (NJ App. Div. Jan. 27, 2005) (available here) enriches the story.
Anderson is noteworthy for limiting the reach of Blakely by (1) "summarily" rejecting Blakely's claimed applicability to the imposition of consecutive sentences, and (2) affirming a sentence above the presumptive term when "the defendant — although not acknowledging aggravating factors beyond the 'elements' of the offenses — acknowledged exposure to [enhanced] sentence imposed." In addition, in a final footnote, the court hinted that the solution to Blakely problems in New Jersey might be a Booker-type remedy.
January 27, 2005 at 04:58 PM | Permalink
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Comments
As one of the attorneys who will be arguing the Apprendi/Blakely related issues in the NJ Supreme Court on March 1, let me just say that the footnote at the end of the opinion is entitled to no more weight than the Appellate Division's questionable holding that a defendant can waive Sixth Amendment rights without knowingly stipulating to the applicable sentence-enhancing facts. Enough said.
Posted by: Steve Sanders | Jan 27, 2005 6:08:33 PM
The opinion is not clear as to how NJ law applied here. Was the consecutive sentence authorized only when the applicable aggravating factor is present? If so, then one could argue that by conceding the applicability of the aggravating factor, the defendant implicitly conceded the factual basis for it, even though he did not explicitly admit it. But, that shouldn't be sufficient.
If Anderson's reasoning were taken to its logical extreme, plea allocutions and colloquys would never need to go beyond a warning of the possible statutory maximums and a conclusory statement by the defendant that he or she is "guilty" of the pertinent offenses. Gone would be the need for defendants to provide a factual basis, beyond a reasonable doubt, to support the convictions. Thus, a defendant pleading guilty to larceny under a statutory graduated value scheme (such as the one in effect in New York), could simply be warned that the maximum exposure is 25 years to life (the penalty applicable to the most serious level involving at least $1,000,000) and then merely say he's guilty of larceny. Whether he received a sentence in the highest possible range, or a lesser one in the lower statutory levels, would depend on judicial fact-finding--an impermissible procedure under Blakely/Booker. All of this simply because the defendant acknowledged the possible statutory maximums.
In my opinion, Anderson is really just a garden-variety contract case. The prosecution and judge agreed to a specific sentence, presumably more lenient than the defendant might otherwise have faced, in exchange for his agreement not to go to trial on the second charge. Having achieved the benefit of the bargain, the court found that he implicitly, knowingly and intelligently, waived any challenges to it.
But bad facts make bad law. If he had explicitly waived the right to challenge or attack his sentence as part of the deal, we wouldn't be analyzing this opinion. He didn't but the court found that type of waiver implicit. Is this a fair conclusion? Perhaps but perhaps not. To its credit, the court didn't designate this opinion for publication. But a more accurate explanation of the result would have been more useful in these early days of the new sentencing world after Blakely and Booker.
Posted by: Alex E. | Jan 28, 2005 12:38:19 AM
Acknowleging exposure...
Those "judges" should be ashamed of themselves.
Posted by: Jeannie | Jan 28, 2005 1:33:05 AM
