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May 23, 2007

Will SCOTUS grant cert on Blakely consecutive sentencing issue?

The latest "Conference Call" column in Legal Times is entitled "Supreme Court Asked to Clear Up Sentencing Muddle."   The column highlights a case raising an important Blakely issues that the Justices are scheduled to consider this week.  Here are the highlights:

By setting constitutional limits on a judge's discretion to sentence, [Apprendi and Blakely] called into serious question the sentencing schemes of the federal government and of dozens of states.  In its private conference Thursday, the Supreme Court will consider whether to hear a case -- Washington v. VanDelft, No. 06-1081 -- that presents yet another wrinkle in the ever-evolving field of sentencing jurisprudence.

The question in VanDelft is whether the decision to impose consecutive rather than concurrent sentences is one that a judge can make, or whether, instead, it is a question that Apprendi and Blakely repose in the jury. 

The issue is a significant one because the imposition of consecutive rather than concurrent sentences can have a substantial effect on a defendant's overall time of incarceration....

The defendant in VanDelft, William VanDelft, received multiple convictions in state court for various attempts to abduct young boys for sex.  Two of those convictions were for attempted first-degree kidnapping; a third was for attempted second-degree kidnapping.  Washington state sentencing law stated that the sentences for first-degree kidnapping "shall be served consecutively to each other."  By contrast, sentences for second-degree kidnapping "shall be served concurrently."  Importantly, though, the law goes on to state that consecutive sentences can be imposed in exceptional circumstances....

The [Washington Supreme Court] noted that Washington sentencing law contained a "statutory presumption of concurrent sentencing" for VanDelft's second-degree kidnapping conviction, and that this "presumption" served as the relevant statutory maximum under Apprendi and Blakely.  The trial judge unconstitutionally exceeded this maximum, the court held, when he nevertheless imposed a consecutive sentence on VanDelft based on a separate finding that a concurrent sentence would be "too lenient."

May 23, 2007 at 08:06 AM | Permalink


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Doug, it seems to me there is a second issue in VanDelft which goes to your oft expressed position
that the offense/offender characteristic is
constitutionally based.

The first issue is a straight Sixth Amendment
claim of whether a judge or jury must determine
the existence of a fact which raises the potential
punishment to which the def is exposed. In VanDelft the judge made that determination.

The more subtle question is whether the "fact"
that the sentence "is too lenient" can serve as
an Apprendi fact, no matter who decides it. I
think not, because I think only "offense characteristics" can serve as elements of crime.

To me, Blakely did not convert all sentencing
factor ags into elements of a greater crime. It
simply said that the finding of one offense
characteristic, if used as the basis to exposing
a defendant to greater punishment, must be found
by a jury beyond a reasonable doubt.

best regards,
bruce cunningham

Posted by: | May 23, 2007 9:39:15 AM

The Ohio Supreme Court also found that Blakely extended to Consecutive sentences in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, on what sounds like the same grounds reached in VanDelft. Does anyone know how many other state supreme courts have addressed this issue and what they concluded? In any event, I hope Professer Berman keeps all of us abreast of this subject.

Posted by: anonymous | May 23, 2007 12:10:27 PM

Cal. Supreme hears oral argument in People v. Sandoval on May 29. The question presented is how to cope with Cunningham, but defendant is also raising the consecutive sentencing issue. Expect a decision within 90 days.

Posted by: Kent Scheidegger | May 23, 2007 12:42:16 PM

In some ways, the Court already did once "grant cert on Blakely consecutive sentencing." The case: Burton v. Waddington. Although the issue presented was on retroactivity and although the court ultimately disposed of the case on successive habeas grounds, the alleged Brady violation in that case was the imposition of consecutive sentences when Washington's presumption was for concurrent sentences.

Posted by: DEJ | May 23, 2007 7:17:36 PM

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