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September 15, 2006

Alaskan wisdom on Blakely and indictments

Alaska, to my great joy, continues to do great Blakely work (prior great work is linked below). Today, in  Alaska v. Dague, No. A-9054 (Alaska Ct. App. Sept 15, 2006) (available for download below, and also now at this link), the Alaska Court of Appeals held that aggravating factors that enhance a presumptive term do not have to be presented to the grand jury.

Download dague.pdf

Related posts discussing great Alaska Blakely opinions:

September 15, 2006 at 05:54 PM | Permalink


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I believe that Judge Mannheimer's reasoning in Dague is fundamentally flawed. He argues that an aggravator that increases the potential range of punishment above the presumptive sentence does not have to be included in an indictment because it is not an element. In my view, he misperceives what is the differentiating element between manslaughter and aggravated manslaughter, which is the finding of one aggravator. So, I do agree that Cleveland was properly decided, which holds that once a jury finds one ag, as a matter of constitutional law, the judge can find others which elevate sentences within the range allowed based on the conviction for the greater offense.

In my opinion Apprendi/Ring/Blakely are based solidly, and solely on the Sixth Amendment right to a jury trial, which is applicable only to "criminal prosecutions." Blakely does not, in my opinion, bestow on juries any constitutional role to play in sentencing. The jury's role is only to decide if someone is guilty or not guilty of crimes. So, anything which is decided by a jury is by definition an element of a substantive criminal offense, never a "sentencing factor."


Posted by: bruce cunningham | Sep 16, 2006 12:22:11 AM

I do agree with you that Manneheimer, in my opinion, does not read Apprendi as it was intended by the Justices. Thus I am hopeful that the United States Supreme COurt will accept cert. in Carlson. If you read Apprendi (and accept Justice Thomas' reasoning), Alaska's sentencing scheme was flawed from the git-go. I have been briefs, based on Huf and Donlun, stating Alaska was in error from the inception and based on those two cases. But we shall see what happens in the consolidated cases upstairs
The thing is that judges often weigh the various aggravators. The law is correct, once an aggravator is found, then they can impose more time. However, many of the prior sentencings
had judges giving more weight or "no weight" to various aggavators. Thus there is the battle over the old cases. So, I understand the battle in Dague is not over yet .
There has been a debate between myself and another defense attorney as to the notice element under Criminal 6 as to grand jury. I think it is proper under due process for the defendant to have notice from the beginning. alas, i do not have the prevailing opinion in Alaska. Now the district attorneys don't have to do more work upfront on their cases.

Posted by: randall cavanaugh-defense attorney Alaska | Sep 17, 2006 2:51:23 PM

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