The Ohio Blakely saga continues

I have previously highlighted that Ohio's sentencing laws and practices make the state a Blakely bellwether because Blakely's impact on Ohio's sentencing scheme could be extreme or extremely minor (background here and here).  To its great credit, as detailed in memos linked here, Ohio Criminal Sentencing Commission has been tracking Blakely developments closely, and it has been regularly updating this memo with the latest Ohio appellate court decision on Blakely.  (Relatedly, the Ohio Criminal Sentencing Commission has also recently produced this report entitled Monitoring Sentencing Reform which asserts that Ohio has generally achieved its stated goals with the sentencing reform it enacted a decade ago.)

As reported here a last week, though most of Ohio's intermediate appellate courts had found Blakely largely inapplicable in Ohio, the First Appellate District in State v. Bruce, 2005-Ohio-373 (Ohio 1st Dist. Feb. 4, 2005) (available here), concluded that Booker significantly altered the Blakely analysis in Ohio.  The Bruce court explained that, though it had previously concluded that "Blakely did not materially affect the Ohio sentencing scheme," the Supreme Court's "recent decision [in] Booker [makes] clear that this interpretation was wrong."

But this week, in Ohio v. Abdul-Mumin, 2005-Ohio-522, 2005 WL 315062 (Ohio App. 10 Dist. Feb. 10, 2005) (available here), Ohio's Tenth Appellate District explained in the most thorough decision I have seen why it believes Ohio's sentencing scheme does not have Blakely problems.  Here's the heart of the Court's concluding analysis:

By enacting [Ohio's sentencing presumptions], the Ohio General Assembly did not change the definition of any existing offense.  It simply conferred favored status upon minimum sentences for first-time imprisonment, and provided directives to guide the use of factors that have always been considered by sentencing courts to bear upon the appropriateness of a particular punishment, i.e., "the seriousness of the offender's conduct" and the need to "adequately protect the public from future crime by the offender or others."... [T]he factors involved in the imposition of appellant's non-minimum sentences did not enlarge appellant's penalty for any offense beyond the maximum authorized by the jury's verdict.  As such, their use was not violative of appellant's Sixth Amendment right to a trial by jury.

Though the Abdul-Mumin court makes a quite spirited defense of Ohio's sentencing laws in the face of Blakely, I know that not everyone will be convinced of its analysis.  Specifically, I had a student last semester who examined Blakely in Ohio and concluded that Blakely must be applicable to Ohio's sentencing laws.  That student recently completed a polished write-up of his conclusions and he has allowed me to share his perspective on Ohio's Blakely problems here:

Download sabol_analysis_of_blakely_and_booker_in_ohio.doc