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June 17, 2005

Washington Supreme Court declares Blakely not retroactive

As detailed in this article, on Thursday the Washington Supreme Court concluded in State v. Evans, No. 74851-9 (Wash. June 16, 2005) that "neither Apprendi nor Blakely applies retroactively on collateral review to convictions that were final when Blakely was announced."  The Court's unanimous ruling can be accessed at this link, and a brief concurrence by Justice Sanders can be accessed at this link.

The decision in Evans covers now familiar retroactivity ground, relying heavily on Schriro and otherwise rejecting arguments, including a claim based on state law, which might provide a basis for giving some retroactive application to Blakely.  And Justice Sanders' one paragraph concurrence makes this observation about the current state of retroactive affairs:

As a matter of logic and principle, I find it difficult to accept one's constitutional right to a jury trial on sentencing factors may be abridged, without remedy, when the issue is first raised based on new case law in the context of a personal restraint petition.   But a slim majority (5-4) of the United States Supreme Court in Schriro v. Summerlin, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), seems to say exactly that.  What can I do but concur in the decision of our majority?

UPDATE: Additional news coverage of the Evans decision is here and here.

June 17, 2005 at 01:34 AM | Permalink


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I find this constant referral to Schriro as support for non-retroactivity extremely frustrating. It seems intellectually dishonest, to not recognize that Schriro only looked at a situation which transferred BRD findings from the jury to the judge, and not what is at issue in Apprendi/Blakely-- BRD jury findings replaced with preponderance standard findings by a judge. Even when this difference is fully briefed, my experience is that Courts at every level completely disregard and ignore this critical fact, often not even mentioning it.

Posted by: rob | Jun 17, 2005 9:33:49 AM

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