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May 11, 2006

Washington Supreme Court address Blakely and minimums

The Washington Supreme Court today in State v. Clarke, No. 76602-9 (Wash. May 11, 2006) addresses the constitutionality of an "exceptional minimum sentence under Blakely."  The 7-2 ruling affirms the defendant's sentence, and the majority opinion (available here) has this start:

After two juries convicted John Mark Clarke of two counts of second degree rape, the sentencing court imposed a maximum sentence of life imprisonment as required by statute.  The sentencing court also imposed an "exceptional minimum sentence," which is a sentence in excess of the standard sentence range for the crimes charged, based on two aggravating factors.  Clarke challenges the constitutionality of his exceptional minimum sentence under Blakely v. Washington, 542 U.S. 296(2004).  We hold that Blakely does not apply to an exceptional minimum sentence imposed under RCW 9.94A.712 that does not exceed the maximum sentence imposed and affirm the Court of Appeals.

The dissent in Clarke (available here) begins this way:

The majority concludes a judge may impose an exceptional minimum sentence on the basis of an aggravating factor neither found by the jury nor admitted by the defendant.  I disagree.  The Sixth Amendment prohibits a judge from imposing a penalty not authorized by the facts found by the jury or admitted by the defendant. See Blakely v. Washington, 542 U.S. 296 (2004).  An exceptional minimum sentence is a penalty.  And under Washington law, a judge may impose an exceptional minimum sentence only if an aggravating factor exists.  Consequently, a judge cannot impose an exceptional minimum sentence on the basis of an aggravating factor neither found by the jury nor admitted by the defendant.

May 11, 2006 at 01:26 PM | Permalink


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A layperson's question: What is the standard of proof the judge used in his finding of aggravating factors?

Posted by: TE | May 11, 2006 1:53:06 PM

The requirement that a jury determine facts, whether in mitigation or aggravation fact-finding is the province of the jury
While I must agree that these rapes are despicable and deserve extreme punishment, the process must be of such a nature to ensure consistency. Clarke committed two crimes and was convicted by two separate juries; the punishments should have been consecutive. The determination by the sentencing court to run the sentences concurrently, when there were two separate offenses tried in two separate courts was clearly wrong. The standard range minimum of 102 to 136 months consecutively would provide 204 to 272 months as the minimum. As it were:
“The aggravating factors found by the sentencing court were
(1) that Clarke's multiple unscored prior misdemeanors resulted in a standard range sentence that was clearly too lenient, and (2) that the multiple offense policy of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, resulted in a standard range sentence that was clearly too lenient. The sentencing court determined that either aggravating factor was sufficient to support Clarke's exceptional minimum sentence.”
I noticed that there was no mention of the prior misdemeanors as a basis for the aggravating finding, either by the majority or the dissent, Almendarez-Torrez v. United States, 523 US 224 (1998). “the court held that the "number and nature" of Clarke's prior convictions "provided substantial and compelling reasons" supporting the exceptional minimum sentence.” I would think the prior convictions exception left intact by Apprendi, Blakely and Booker would justify the increased sentence in any case, the aggravating factor was not for the crime of conviction found by the jury, but was due to Clarke’s failure to obey the law after many opportunities.
The prisoners deserving of Constitutional leniency and heightened due process are the first offenders serving much longer sentences for regulatory violations.

TE, The standard of proof is the same as in a grand jury proceeding or a small claims court, a preponderance of the evidence, however the evidence of prior convictions are hard copies of court records… not much argument of fact there.

Posted by: Barry Ward | May 11, 2006 4:54:04 PM

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