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January 28, 2006

All hail the Blakely Frontier

AlaskaflagThe state nickname for Alaska is "The Last Frontier," but I am going to start calling it the Blakely Frontier after the Alaska Court of Appeals issued another terrific and terrifically interesting Blakely opinion in Carlson v. State, No. 2029 (Alaska App. Jan. 27, 2006) (available here).  Last month, as detailed here, the Alaska Court of Appeals issued a strong opinion on Blakely and consecutive sentencing in Vandergriff v. State, No. 2022 (Alaska App. Dec. 16, 2005), and Carlson is more of the same.

The Carlson decision is authored by Judge Mannheimer, who wrote a fantastic concurrence in Vandergriff in which he provided a cogent and compelling account of the Apprendi-Blakely-Booker line of decisions.  The Carlson opinion covers similar ground in its thoughtful explanation of its holding that a judge's imposition of a "sentence that exceeds the benchmark sentencing range for second-degree murder" established by caselaw does not transgress the Sixth Amendment.  Here is a small sample of a must-read state Blakely decision:

To preserve the right to jury trial guaranteed by the Sixth Amendment, the Supreme Court has ruled that governments can not define criminal offenses in a manner that allows the prosecutor to present a stripped-down case to the jury and then, following the defendant's conviction, allows the sentencing judge to decide other factual issues which (if proved) will lift the sentencing ceiling — effectively convicting the defendant of an aggravated degree of the underlying offense....

The constitutional problem in Apprendi, Blakely, and Booker was the attempt by various governments to segregate certain aspects of a crime — facts that would traditionally be viewed as elements of the crime (facts relating to the defendant's conduct, mental state, or criminal history, or other circumstances surrounding the crime) — and assign the decision of these facts to the sentencing judge by declaring these facts to be "sentencing factors"....

Rather than being a finding of historical fact, the finding required by [our caselaw here] (some sound reason for concluding that the defendant should receive a sentence longer than 30 years) is partly a weighing of imponderables and partly a prediction of the defendant's future behavior, based on the judge's assessment of the underlying causes of the defendant's criminal behavior, the defendant's likelihood of recidivism, and the defendant's amenability to rehabilitative efforts. In other words, this finding does not look like any of the findings that are traditionally entrusted to the jury under our system of justice (save in those few states which give sentencing authority to juries).

January 28, 2006 at 07:26 AM | Permalink


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Worth noting that Alaska has an interesting “3-judge panel” system where if the sentencing judge determines that the defendant should, perhaps, get something lower than the mandatory minimum, a three-judge panel of superior court judges can sentence him to something below that. See AS 12.55.175.

Posted by: S.cotus | Jan 28, 2006 8:37:38 AM

Back on June 15,2005 the
had comment on how Apprendi,
and Blakely might be used
to keep a judge from
transfering a juvenile to
the adult criminal court.
Doing so guarantees a
longer sentence, so therefore
is in reality allowing the
judge (not a jury) to
expose the defendant to a
higher punishment than the
maximum punishment he would
receive in the juvenile
Does anyone have any updated
information on this type of
a claim?

Posted by: Karen | Jan 28, 2006 1:31:14 PM

It seems to me that, rather than honoring the fundamental principles of Blakely, the Carlson decision ignores them. The opinion adopts the notion of a constitutionally significant difference between "offense characteristics" and "offender characteristics", oblivious to the fact that the Supreme Court has not embraced that distinction. (I have always assumed that your position of advocating for an offense characterist/offender characteristic dichotomy was a matter of desired public policy, not current Sixth Amendment jurisprudence.)

Justice Scalia makes it clear that he doesn't care what you call it, call it Mary Jane for all that matters. If the finding of it increases the defendant's exposure to a level greater than the level allowed by the verdict or plea alone, it is an element of a greater offense.

To me, the flaw in the Carlson opinion is best revealed in the following sentence---"In contrast, the finding REQUIRED by Page does not necessarily turn on any factual aspect of the defendant's present offense." p. 28. So what?

Blakely does not limit the forbidden findings to "aspects of the defendant's present offense."
As matter of fact, the findings can be about anything, even something as seemingly tangential as whether the defendant supports his children.

Again, I need to toot North Carolina's horn. The Blakely fix bill requires a jury determination of ANY aggravating circumstance, regardless of whether that circumstance is an offense characteristic or an offender characteristic. Such as, specifically, whether the defendant supports his children. That is a statutory aggravator under our Structured Sentencing Law and , in my opinion, an element of a greater offense under Blakley if the finding of it exposes the defendant to a greater range of punishment than he is exposed to under the verdict.

In my view, Judge Mannheimer correctly described the Apprendi/Blakely holding and then incorrectly applied it to the facts of the case. Under the verdict alone, the defendant was not exposed to a sentence greater than 30 years. It's Blakely error in my book for a judicially found fact to increase the range of sentences to which the defendant is exposed above 30 years.

Bruce Cunningham

Posted by: Bruce Cunningham | Jan 28, 2006 11:37:09 PM

Bruce, these are fair (though debatable) points about hanging one's hat on an offense/offender distinction. (I think that distinction it well founded based on the text of the constitution, as well as sound policy, but the Supreme Court certainly has not (yet?) formally embraced the distinction.)

But what of the distinct distinction between legislatively enacted aggravators and judicially adopted rules of sentencing. I think there is a constitutional distinction between what the legislature enacts and what the judiciary adopts, and that provides further support for Carlson.

Posted by: Doug B. | Jan 29, 2006 5:54:05 AM

I don't believe there is such a thing as a "judicially adopted rule of sentencing" , if the effect of that rule is to increase the defendant's exposure to punishment above the level allowed by the jury verdict.

In Page, the judiciary, in my view, created a common law crime known as Aggravated Second Degree Murder, by adopting a rule which says a defendant cannot receive a sentence in excess of 30 years without a factfinding in addition to the factfinding necessary to convict someone of Second Degree Murder. Therefore, the jury convicted the defendant of the statutory crime of Second Degree Murder and the judge convicted the defedant of the common law crime of Aggravated Second Degree Murder.

The same thing goes with Blakley itself. In Blakely, in my opinion, there was no "judicially adopted rule of sentencing." Blakley is not about sentencing. It is about the creation of substantive criminal offenses. And the USSC in Blakely says that if a fact finding increases the allowable level of punishment above what the legislature says a defendant can get for Felonious Larceny, then he has been convicted of a new crime, called Aggravated Felonious Larceny, which was created by the judiciary not the legislature. Nowhere on the books of north carolina statutes is there mention of a substantive crime of Aggravated Felonious Larceny. But we have one now.

Since Carlson was convicted of Aggravated Second Degree Murder by a judge, not a jury, there is Blakely error.


Posted by: Bruce Cunningham | Jan 29, 2006 7:46:27 AM

I think what makes Carlson tricky is that originally the legislature said that the worst thing that can happen to someone based on the verdict alone of guillty to second degree murder is 99 years. So that was the Apprendi/blakely statutory maximum. Then the judiciary in Page came along and capped the maximum at 30 years without additional factfinding. So the new, judicially created, max for second degree murder was 30 years. However, if a judge made an additional factfinding, in the form of an "explanation" to exceed 30 years, then the ceiling reverted back to the 99 years. In my view, since 99 years is attainable only through judicial factfinding in addition to the facts found by the jury, there is a new crime and blakely error.

this is a distinction,but a distinction without a difference, from Blakely. In Blakely, the legislature enacted a second statute which allowed for an increased range of punishment based on additional fact finding. Without calling it a new crime, the legislature created a new exposure to elevated punishment dependant upon judicial factfinding. The USSC "converted" that "sentencing procedure" into a common law crime. Which then means that since it is now a criminal prosecution, the Sixth Amendment requires a jury determination of all facts legally essential to expose the def to the increased range of punishment.


Posted by: Bruce Cunningham | Jan 29, 2006 8:33:19 AM

Doug, By not adopting the offender/offense characteristic dichotomy, I believe the Supreme court is doing exactly what it is supposed to be doing. Which is to serve as a "governor" on the democratic process. ("Governor" in the gas engine sense of the word- a device designed to keep the engine operating within the limits prescribed by the manufacturer. In our case the manufacturer is the Constitution)

About 20 years ago, politicians learned they could make hay and get votes by micromanaging the criminal sentencing system and they set out doing it with a vengeance. The Apprendi /blakely line is the attempt of the Court to act as the governor and rein in the intrusions by the legislature into areas of power reserved by the Constitution to the people--a jury determination of facts essential to the conviction of citizens of crimes.


Posted by: Bruce Cunningham | Jan 29, 2006 9:36:40 AM

The crime Carlson committed was murder in the second degree and the jury found the defendant guilty, had the sentence been imposed at this point, as a first offender the punishment range as established in Page was 20 to 30 years. Now the jury has determined the range of penalties the judge must work within,
“In imposing sentence, the court shall consider:
(1) the seriousness of the defendant's present offense in relation to other offenses; id. @ 29.
Judge Hopwood sentenced Carlson to 64 years, that was 34 years beyond the “jury verdict” and impermissible under our Constitution. “Judge Hopwood did not consider the murder itself to be atypically serious.” Id. At 38. It was not for the aggravating facts of the murder that the judge imposed the sentence, but the circumstances of his prior juvenile conviction for theft, and Shepard forbade the behind the scenes fact-finding utilized by the judge in finding the additional facts for the increased punishment. A sentence of 20 to 30 years in prison will either change someone’s way of thinking, or the continued criminal activity in prison will take care of the rest of the prisoner’s life. It is not for a judge to decide that this guy committed a crime, “not atypically serious”, but he has always been a bad kid, so put him away until he is 65 years old. I spent more than 15 years in prison and I got every day of good time available, but I saw young men like Carlson turn a 5 year sentence into a 10 or 20 by continuing crime in prison. Our system is not difficult, if the person committed a crime and is found guilty by the jury, then the jury determined the range of punishment and the judge may sentence within that range in finding aggravating or mitigating factors. But the judge may not amend the verdict to his own concept of what sentence should be imposed. It is the crime of conviction and the fact of prior convictions that determine punishment, if a fair trial and fair sentencing will once again be the guarantee of freedom envisioned by our founding fathers.

Posted by: Barry Ward | Jan 30, 2006 9:05:48 AM

This argument -- that Apprendi does not apply to qualitative judgments -- was made by the State and explicitly rejected by the Supreme Court in Blakely. Read the briefs. Simple fact: lower courts cannot be trusted to faithfully apply Supreme Court precedent when it helps a criminal defendant. At all

Posted by: R/W | Jan 30, 2006 10:19:03 AM

R/W: Both Blakely and Booker did a poor job clarifying whether all FINDINGS or just FACTUAL findings had to be made by a jury. Thus, I do not find the distinction suggested in Carlson to be that far-fetched.

Posted by: Doug B. | Feb 1, 2006 7:08:43 AM

Doug, for me what resolves Carlson is the answer to the question, "what is the greatest sentence that the def was exposed to based on the jury verdict alone?" If the answer is "less than what he was exposed to after the judge made his findings, regardless of whether you call the findings factual or not," then the defendant has been convicted by the judge, in violation of the Sixth Amendment, of a crime greater than second degree murder.


Posted by: bruce cunningham | Feb 1, 2006 1:42:28 PM

Doug, I think your dichotomy between "all findings" and "just factual findings" is not very helpful in talking about Blakely issues.

I think Blakely, and Scalia's concurring opinion in Ring, make clear that the Supreme court doesn't really care what you call the findings, including Mary Jane, --if the finding increases the potential punishment the defendant faces above the level allowed by the jury verdict ALONE, the finding is an element of a greater offense. bruce

Posted by: Bruce Cunningham | Feb 1, 2006 6:55:10 PM

well, I am glad that you have been debating the Carlson case. I have to find away around the ruling. I have emailed the defense attorney that did the brief on behalf of Carlson.
*so, I (in light of Cunningham's viewpoint) must try to convict the COA that they stated the law correctly, but misapplied. Its gonna be a tough sell, but my client will want it...
randall, anchorage, Alaska

Posted by: randall | Feb 2, 2006 4:08:24 PM

Randall, so what if the finding involves something that is not "traditionally entrusted to the jury under our system of justice?" If that finding, whatever it is, increases the potential sentence that the defendant faces, then under Blakely and Ring, it is an element of a greater crime. (Scalia doesn't care if it's called Mary Jane!)

Both NC's Sentencing Commission and legislature have given full respect to the power of the Sixth Amendment and provides the rebuttal to Carlson. In our Blakely fix bill, a finding that the defendant does not support his children, if that increases the defendant's exposure to punishment above the level allowed by the jury verdict ALONE, must be found by a jury beyond a reasonable doubt. That certainly is a finding not traditionally entrusted to a jury.

Carlson is an extraordinarily important decision that goes right to the heart of what Blakely is all about. The crux of the issue presented in Carlson is "what kind of facts are legally essential to the determination that the defendant committed a crime?

I think that the reason Doug and I differ on Carlson is because we are each coming at Blakely from a different perspective. From Doug's mindset of being concerned primarily with sentencing issues, he sees Blakely as a sentencing case. As a trial lawyer, I come at Blakely from the viewpoint of "what is a crime?" and "who decides if a defendant has committed a crime?" I don't think blakley is about sentencing at all. By definition , a jury has no constitutional role to play in sentencing, because the Sixth Amendment right to a jury trial applies only to "criminal prosecutions." I would say to Doug, with the utmost of respect, what Scalia said to Breyer in Ring. "He is on the wrong plane. get off before the doors close or buy a ticket to Apprendi-land." (remember Breyer wanted to inject an eighth amendment element in to the mix of deciding who constitutionally must sentence a defendant to death.) good luck with your case, Bruce

Posted by: Bruce Cunningham | Feb 3, 2006 10:31:08 PM

thanks bruce. I pulled the comments from the blog and discussed them with the Carlson appellate writer (we were in line to do changes of pleas). Thus I think some of your arguments are likely to be incorporated into his petition for review to the Alaska Supreme Court.

Posted by: randall | Feb 5, 2006 12:44:53 PM

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