Learning from Lopez

The Colorado Supreme Court's recent Lopez ruling applying Blakely (basics here) is a must-read for everyone interested in watching a state Supreme Court faithfully apply Blakely's new constitutional mandate while also finding ways to minimize its impact on an existing structured sentencing system.  There are many insights and choice passages in Lopez, but I particularly appreciate the court's embrace of a helpful nomenclature (drawn from an Arizona decision) for facts which judges can rely upon for enhancing a sentence:

[F]acts admitted by the defendant, found by the jury, or found by a judge when the defendant has consented to judicial fact-finding for sentencing purposes we call "Blakely-compliant," and prior conviction facts we call "Blakely-exempt."

In addition, though it may be too late, the Lopez court has some important lessons for the Tennessee Supreme Court (which, as discussed here, seemed to mis-read Blakely an Booker in its recent Gomez decision):

[T]he Blakely Court effectively rejected any distinction, for the purposes of Sixth Amendment analysis, between mandatory or discretionary aggravated sentencing systems based on judicial factfinding.  Under either system, facts supporting increased sentences are subject to the rule. The Court stated that "[w]hether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence." [Blakely, 124 S. Ct] at 2538 n.8 (emphasis in original).