Latest development in Ohio's Blakely story

I have not noted a number of recent intermediate appellate court decisions on Blakely from Ohio, because, as detailed in this Ohio Criminal Sentencing Commission memo, the basic story has not changed much of late: most of Ohio's intermediate appellate courts have found Blakely largely inapplicable in Ohio, though the First District Court of Appeals has held to its view, discussed here and here, that Booker significantly altered the Blakely analysis in Ohio.  (Background on how 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, can be found in posts here and here.)

But yesterday brought a development that merits mention: in a pair of major en banc cases — State v. Lett, Nos. 84707 & 84729, 2005-Ohio-2666 (Ohio 8th Dist. May 31, 2005) (available here) and State v. Atkins-Boozer, No. 84151, 2005-Ohio-2666 (Ohio 8th Dist. May 31, 2005) (available here) — the Eighth District Court of Appeals, "cleaned up" some disparate Blakely rulings by prior panels.  In these (lengthy) decisions, the Eighth District Court of Appeals held that Ohio's sentencing scheme largely dodges Blakely problems.  Here are parts of the interesting opening paragraphs of Lett:

In Blakely v. Washington, the United States Supreme Court held that the "statutory maximum" for sentencing purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.  Shortly after the supreme court released that opinion, Justice Sandra Day O'Connor was widely quoted as saying that the decision "looks like a No. 10 earthquake to me."  These remarks proved accurate. The application of Blakely to sentencing issues relating to the maximum, minimum and consecutive sentences under [Ohio] R.C. Chapter 2929 have now divided this court, with the result being the imminent issuance of conflicting opinions from within this appellate district....

[W]e invoked our en banc procedure, extant since 1976, to resolve preemptively the differences within this district.  In doing so, we acknowledge that the Ohio Supreme Court has certified several cases touching on the issues to be addressed herein, including one involving Lett in an unrelated case.  Nevertheless, we think it provident to resolve the conflicts within this district pro tempore until such time as the supreme court resolves these issues definitively.

As might be expected, the complexity of the issues presented in this case has left this court deeply divided.  We recognize that the orderly administration of justice is the rock upon which government rests.  More criminal cases are heard in this appellate district than in any other in this state.  Our refusal to speak on these issues, no matter how discordantly on an individual basis, would create the untenable situation where individual defendants would be sentenced differently pending the Ohio Supreme Court's decision.  All of us agree that would be an unacceptable outcome and must be avoided; hence, our agreement is to apply the law set forth in this opinion until the Ohio Supreme Court renders a final decision.

Just in case you do not have time to read nearly 100 pages of trenchant Blakely Ohio analysis from the judges of the Eighth District Court of Appeals, highlights of the decisions are provided in a helpful official court press release that is provided for downloading below.

Download ohio_8th_ca_blakely_summary.pdf