Sentencing Law and Policy

A true scholarly feast for Apprendi fans

I was quite pleased to discover that the North Carolina Law Review now has fully available online here the full contents of its June 2021 issue with article from its Apprendi at 20 symposium.  Everyone of these articles looks like a must-read and I am already joyously working my way through them all:

Apprendi at 20: Reviving the Jury's Role in Sentencing by Stephanos Bibas

The Sixth Amendment Sentencing Right and Its Remedy by Carissa Byrne Hessick

Handling Aggravating Facts After Blakely: Findings from Five Presumptive-Guidelines States by Nancy J. King

Apprendi's Two Constitutional Rights by Kate Stith

The Sixth and Eighth Amendment Nexus and the Future of Mandatory Sentences by William W. Berry III

The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years After Apprendi by Frank O. Bowman III

Apprendi/Booker and Anemic Appellate Review by Nancy Gertner

A Racially Biased Obstacle Course: Apprendi Transformed the Federal Sentencing Guidelines into a Series of Judicial Obstacles; Can Shame Reduce the Racial Disparities by Kallie S. Klein and Susan R. Klein

State judge finds four aggravating factors could support upward departure at Derek Chauvin's upcoming sentencing

As reported in this new AP piece, a "Minnesota judge has ruled that there were aggravating factors in the death of George Floyd, paving the way for the possibility of a longer sentence for Derek Chauvin, according to an order made public Wednesday."  Here are more details and context:

In his ruling dated Tuesday, Judge Peter Cahill found that Chauvin abused his authority as a police officer when he restrained Floyd last year and that he treated Floyd with particular cruelty. He also cited the presence of children when he committed the crime and the fact Chauvin was part of a group with at least three other people.

Cahill said Chauvin and two other officers held Floyd handcuffed, in a prone position on the street for an “inordinate amount of time” and that Chauvin knew the restraint was dangerous. “The prolonged use of this technique was particularly egregious in that George Floyd made it clear he was unable to breathe and expressed the view that he was dying as a result of the officers’ restraint,” Cahill wrote.

Even with the aggravating factors, legal experts have said, Chauvin, 45, is unlikely to get more than 30 years when he is sentenced June 25....

Even though Chauvin was found guilty of three counts, under Minnesota statutes he’ll only be sentenced on the most serious one — second-degree murder. Under Minnesota sentencing guidelines, he would have faced a presumptive sentence of 12 1/2 years on that count, and Cahill could have sentenced him to as little as 10 years and eight months or as much as 15 years and still stayed within the guideline range.

But prosecutors asked for what is known as an upward departure — arguing that Floyd was particularly vulnerable with his hands cuffed behind his back as he was face-down on the ground. They noted that Chauvin held his position even after Floyd became unresponsive and officers knew he had no pulse.

With Tuesday’s ruling, Cahill has given himself permission to sentence Chauvin above the guideline range, though he doesn’t have to, said Mark Osler, professor at the University of St. Thomas School of Law. He said attorneys for both sides will argue whether an upward departure is appropriate and how long the sentence should be.

A pre-sentence investigation report will also be conducted. These are usually nonpublic and include highly personal information such as family history and mental health issues, as well as details of the offense and the harm it caused others and the community....

Cahill agreed with all but one of the prosecutors’ arguments. He said prosecutors did not prove that Floyd was particularly vulnerable, noting that even though he was handcuffed, he was able to struggle with officers who were trying to put him in a squad car....

No matter what sentence Chauvin gets, in Minnesota it’s presumed that a defendant with good behavior will serve two-thirds of the penalty in prison and the rest on supervised release, commonly known as parole.

Chauvin has also been indicted on federal charges alleging he violated Floyd’s civil rights, as well as the civil rights of a 14-year-old he restrained in a 2017 arrest. If convicted on those charges, which were unsealed Friday, a federal sentence would be served at the same time as Chauvin’s state sentence. The three other former officers involved in Floyd’s death were also charged with federal civil rights violations; they await trial in state court on aiding and abetting counts.

The full six-page ruling reference in this article is available at this link.

Prior related posts:

• Derek Chauvin found guilty on all three homicide charges in killing of George Floyd, now on to sentencing phase with Blakely factors 
• Counsel file initial sentencing briefs on "Blakely factors" in preparation for Derek Chauvin's sentencing 

Counsel file initial sentencing briefs on "Blakely factors" in preparation for Derek Chauvin's sentencing

As reported in this local article, headlined "Prosecutors seek aggravated sentence against Derek Chauvin, argue George Floyd was ‘treated with particular cruelty’," the sentencing phase of the prosecution of the former police office convicted of killing George Floyd is now at the first briefing stage.  Here are the basics:

Prosecutors asked a judge Friday to give Derek Chauvin a longer prison sentence for killing George Floyd, arguing that the crime was particularly cruel....

Chauvin will be sentenced on June 25. Minnesota sentencing guidelines suggest that an individual without any prior criminal history should be sentenced to 12.5 years in prison for second-degree murder. However, prosecutors have signaled their intent for months to seek an aggravated sentence against Chauvin.

If Hennepin County Judge Peter Cahill grants the prosecution’s request, Chauvin could face a maximum of 30 years in prison.

Prosecutor Matthew Frank argued in a 26-page memorandum that an aggravated sentence is warranted because Floyd was a “particularly vulnerable victim” and “treated with particular cruelty.” Frank also said Chauvin “abused his position of authority,” committed the crime with three or more others and in front of children.

Chauvin’s attorney Eric Nelson filed a 10-page memorandum Friday opposing the prosecution’s ask, arguing against each of their five points. Nelson wrote that Floyd being handcuffed did not make him “particularly vulnerable.” Nelson pointed to how Floyd was over 6 feet tall and weighed more than 200 pounds and said he was resisting arrest.

Here are links to these new filings with their opening paragraphs:

State's Memorandum of Law In Support of Blakely Aggravated Sentencing Factors

The State respectfully requests an aggravated sentence for Defendant Derek Chauvin, a former police officer convicted of second-degree murder, third-degree murder, and second-degree manslaughter in connection with the death of George Floyd.  See Blakely v. Washington, 542 U.S. 296 (2004); Minn. Stat. § 244.10; Minn. R. Crim. P. 7.03.  The facts proven beyond a reasonable doubt at trial demonstrate that five aggravating factors support an upward sentencing departure.

Defendant's Memorandum of Law Opposing Upward Durational Departure

On April 20, 2021, a jury convicted Defendant Derek Michael Chauvin of all three counts alleged in the Complaint against him in connection with the death of George Floyd: unintentional second-degree murder, third-degree murder, and second-degree manslaughter.  The State has moved for an upward sentencing departure, alleging that facts support five different reasons for which the Court may impose an aggravated sentence.  Mr. Chauvin, through his attorney Eric J. Nelson, Halberg Criminal Defense, submits the following in opposition to an upward durational sentencing departure.

"Handling Aggravating Facts After Blakely: Findings From Five Presumptive-Guidelines States"

The title of this post is the title of this great new paper authored by Nancy King ow available va SSRN. Here is its abstract:

This Article reveals how five states with presumptive (binding) sentencing guidelines have implemented the right announced in Blakely v. Washington to a jury finding of aggravating facts allowing upward departures from the presumptive range.  Using data provided by the sentencing commissions and courts in Kansas, Minnesota, North Carolina, Oregon, and Washington, as well as information from more than 2,200 docket sheets, the study discloses how upward departures are used in plea bargaining, sometimes undercutting policy goals; how often aggravating facts are tried and by whom; common types of aggravating facts; and the remarkably different, sometimes controversial interpretations of Blakely and Alleyne v. United States that frame each state’s practice.  This new information is essential for any evaluation of presumptive sentencing guidelines systems or the appropriate scope of the doctrine established in Apprendi v. New Jersey.

Oregon discovering it might have Apprendi problems with its new first-degree murder sentencing provisions

A helpful reader alerted me to this interesting article from Oregon, headlined "New law throws true life sentence in doubt for MAX train killer Jeremy Christian, other murderers, experts say," which highlights that states are still struggling with the modern meaning of the Sixth Amendment a full two decades since Apprendi v. New Jersey.  Here are the details:

Now that a Portland jury has found Jeremy Christian guilty of the first-degree murders of two men on a MAX train, many people might assume that -- given the horrific nature of his crimes -- he’ll end up serving the rest of his life with the possibility of never being released.  Think again.

A growing chorus of legal experts say they believe there’s a glaring flaw in Oregon’s new first-degree murder law that effectively eliminates the possibility that Christian and other convicted murderers in the future will end up serving “true life” prison terms.

Critics say the new law, passed last summer as Senate Bill 1013, is unconstitutional and vague.  They say it disregards two landmark U.S. Supreme Court decisions that invalidate the procedure laid out in the law for handing down true life sentences.  In a flurry of paperwork filed Monday, Christian’s lawyers told Multnomah County Circuit Judge Cheryl Albrecht that given the law’s constitutional problems, her only remaining option under the law is to sentence Christian to life in prison with the possibility of release after 30 years.

Other lawyers representing first-degree murder defendants across Oregon are beginning to make similar arguments, as the first batch of accused killers head toward trials since the law took effect Sept. 29.  Defense attorneys aren’t the only ones pointing to a problem. “In the prosecution community, there’s considerable concern,” said former prosecutor Josh Marquis. “It’d be naive to say this is some idle speculation.”...

He said few lawyers are aware of the impact that the Supreme Court cases -- Apprendi v. New Jersey in 2000 and Blakely v. Washington in 2004 -- have on true life in Oregon....  The Supreme Court rulings require a jury, not a judge, to decide on an elevated prison sentence, such as true life, critics of SB 1013 say.  And criteria -- or specific questions asked of jurors -- must be laid out by the law before the jury can hand down the harsher sentence, they say.

The problem with Oregon’s law is that it grants sentencing powers solely to a judge and doesn’t include sentencing criteria.  As a result, retired Multnomah County prosecutor Norm Frink believes there’s “a high degree of probability” that the Oregon Supreme Court will overturn true life sentences for defendants convicted of first-degree murder....

The uncertainty over how the law will affect the first batch of defendants found guilty of first-degree murder is beginning to play out in courtrooms across the state.  In Christian’s case, Albrecht could go along with the law as stated and decide to sentence him to true life by simply giving what the law calls “the reasons” she thinks he deserves that sentence.

But Albrecht appears to recognize a problem with this because, after jurors found Christian guilty last week, she asked them to return to court Tuesday and Wednesday.  She plans to ask them questions about Christian that will help her decide his sentence.

In court filings Monday, prosecutors came up with their own suggestions for what she should ask, including: Is there a high probability that Christian can’t be rehabilitated? Were his crimes fueled by “unreasonable racial and religious bias”? Has Christian shown remorse for plunging the knife into the necks of the three men?

Tuesday, defense attorney Greg Scholl cautioned the judge that she is stepping onto shaky ground. “There’s nothing in the statute that says this is how they (jurors) are supposed to do it," Scholl said. “We’re operating in a new and somewhat gray area," prosecutor Jeff Howes responded.  Howes said just because SB 1013 doesn’t lay out a process for the judge and jury, that doesn’t mean the judge can’t create a process that is constitutional.  Regardless of how Albrecht handles this, Christian’s attorneys are likely to appeal whatever process she devises....

Outside Portland, other Oregon judges also have been grappling with what to do.  In November, a Hillsboro jury found Martin Allen Johnson guilty of first-degree murder in the killing of a 15-year-old girl whose body washed up on the banks of the Columbia River more than 20 years ago.

Using suggestions from prosecutors, Washington County Circuit Judge Eric Butterfield also came up with a list of questions for jurors.  Among them was whether the defendant knew he was preying on a particularly vulnerable person and if prior punishment in the criminal justice system had deterred him from reoffending.  Butterfield then sentenced Johnson to true life.  Johnson is appealing.

In Linn County, Brenton Wade Richmond faces a double murder trial in the shooting deaths of his ex-girlfriend and her new boyfriend in her home in 2019.  Wade’s defense attorney asked Circuit Judge David Delsman to prevent the prosecution from seeking true life because of what they see as the first-degree murder law’s many constitutional issues.

Lawyers for the Oregon Department of Justice, however, have weighed in, saying in court filings that the true life option is legal and valid.  Sen. Floyd Prozanski, the Eugene Democrat who chairs the Senate Judiciary Committee, said he wasn’t aware of the deep concerns some critics have over the validity of the law’s true life option for first-degree murder. His committee backed the bill.  “Well, that’s their opinion, their interpretation,” said Prozanski, who is a municipal prosecutor and handles misdemeanor cases.  “I had not heard that.  And I will say that the law is pretty clear... The intent was not to do away with what’s called true life.”

The new law causing all this trouble appears in bold here, and it says in one section that the "court shall" impose a 30-to-life term and in the next section that "the court may sentence the person to life imprisonment without the possibility of parole."  That next section then provides that the "court shall state on the record the reasons for imposing the sentence." 

I understand the Sixth Amendment worry with this statutory scheme which seems to require that "reasons" be given for an elevated "true life" sentence.  But, ironically, because the statute does not specify what "reasons" are required for the elevated "true life" sentence, I think an argument might be made that the Oregon statute requires only reasoned judgment, not discreet fact-finding, to justify the higher sentence and thus does not create Sixth Amendment problems.  (In a 2006 article titled, "Conceptualizing Booker," I developed the argument that broad judicial power at sentencing can be justified if and only when judges are exercising reasoned judgment.)

Jerry Sandusky convictions affirmed on post-conviction review, but resentencing ordered (on a Blakely/Alleyne issue)

This USA Today article, headlined "Court rules Jerry Sandusky should be resentenced after turning down his appeal," reports on the result of a high-profile (and lengthy) intermediate state-court ruling.  Here are the details:

Jerry Sandusky lost a bid for a new trial Tuesday but a Pennsylvania appeals court ordered him to be re-sentenced for a 45-count child molestation conviction. The former Penn State assistant football coach was sentenced in 2012 to 30 to 60 years, but a Superior Court panel said that included the improper application of mandatory minimums.

In a 119-page opinion , the appeals panel struck down argument after argument that lawyers for Sandusky, 75, had made in seeking a new trial. His defense lawyer, Al Lindsay, said he was disappointed but will ask the state’s highest court to reconsider.

Lindsay said he was unsure if the new sentencing is likely to result in a substantially different sentence. “I suppose it depends on the judge and what happens before the sentencing and after the sentencing,” Lindsay said.

The U.S. Supreme Court has indicated that jurors must consider anything that could result in a longer sentence, and such elements must be proven beyond a reasonable doubt. A judge, not jury, sentenced Sandusky.

The state attorney general’s office said it was pleased that Sandusky’s convictions remained intact. “The Superior Court has agreed with our office that it was proper for the court below to reject Sandusky’s claims,” said Joe Grace, a spokesman for the prosecutors. “We look forward to appearing for the new sentencing proceedings and arguing to the court as to why this convicted sex offender should remain behind bars for a long time.”

This description of the basis of the ruling suggests our old pal, the Sixth Amendment, played a role in the sentencing outcome.

A few prior related posts:

• Jerry Sandusky found guilty on 45 counts
• "Sandusky sentenced to 30 to 60 years"

UPDATE: I just came across this link to the full 119-page opinion in this appeal, and on page 118 one can find these sentences:

Appellant is entitled to application of Alleyne, notwithstanding his failure to raise this claim in the PCRA court.  Therefore, we agree with the parties that pursuant to the holdings in Alleyne and Wolfe, the imposition of mandatory minimum sentences was illegal.  Therefore, Appellant is entitled to a remand for re-sentencing without application of any unlawful mandatory minimum sentences.

Florida Supreme Court confirms Sixth Amendment rights still of sentencing consequence

Though decided a few weeks ago, I just recently saw the notable Florida Supreme Court ruling in Brown v. Florida, No. SC18-323 (Fla. Dec. 20, 2018) (available here). Here is how it begins:

We review the Fifth District Court of Appeal’s decision in Brown v. State, 233 So. 3d 1262 (Fla. 5th DCA 2017). In Brown, the Fifth District expressly declared valid section 775.082(10), Florida Statutes (2015), which requires that a qualifying offender whose sentencing scoresheet totals 22 points or fewer be sentenced to a nonstate prison sanction unless the trial court makes written findings that a nonstate prison sanction could present a danger to the public. We have jurisdiction.  See art. V, § 3(b)(3), Fla. Const. As explained below, because subsection (10) requires the court, not the jury, to find the fact of dangerousness to the public that is necessary to increase the statutory maximum nonstate prison sanction, we hold that subsection (10) violates the Sixth Amendment to the United States Constitution and quash the Fifth District’s decision.

And here is a key part of the court's analysis:

We agree with Brown that subsection (10) unambiguously sets the statutory maximum penalty, for Apprendi purposes as defined by Blakely, as “a nonstate prison sanction,” § 775.082(10), Fla. Stat., for her and similarly situated offenders. This is because, absent a factual finding of “dangerousness to the public” — a finding not reflected in the jury’s verdict on the theft charge — the statute plainly states that “the court must sentence the offender to a nonstate prison sanction,” id. (emphasis added), given the crime charged and Brown’s criminal history as reflected on her criminal punishment code scoresheet.  Although it would have been possible for the Legislature to have written this statute as a “mitigation statute,” giving the court discretion to impose up to five years unless the defendant proved non-dangerousness, the Legislature did not do so. We read statutes as they are written.

Accordingly, we hold that subsection (10) violates the Sixth Amendment in light of Apprendi and Blakely based on its plain language requiring the court, not the jury, to find the fact of dangerousness to the public necessary to increase the statutory maximum nonstate prison sanction.

Split Michigan Supreme Court rejects Sixth Amendment challenge to state's new juve LWOP statute

Ruling 4-2, the Michigan Supreme Court issued a lengthy opinion yesterday upholding the procedures of its new juvenile sentencing statute.  The majority opinion in Michigan v. Skinner, No. 152448 (Mich. June 20, 2018) (available here), gets started this way:

At issue here is whether MCL 769.25 violates the Sixth Amendment because it allows the decision whether to impose a sentence of life without parole to be made by a judge, rather than by a jury beyond a reasonable doubt.  We hold that MCL 769.25 does not violate the Sixth Amendment because neither the statute nor the Eighth Amendment requires a judge to find any particular fact before imposing life without parole; instead, life without parole is authorized by the jury’s verdict alone.  Therefore, we reverse the judgment of the Court of Appeals in Skinner and affirm the part of Hyatt that held that “[a] judge, not a jury, must determine whether to impose a life-without-parole sentence or a term-of-years sentence under MCL 769.25.”  People v Hyatt, 316 Mich App 368, 415; 891 NW2d 549 (2016).  However, we reverse the part of Hyatt that adopted a heightened standard of review for life-without-parole sentences imposed under MCL 769.25 and that remanded this case to the trial court for it to “decide whether defendant Hyatt is the truly rare juvenile mentioned in [Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012)] who is incorrigible and incapable of reform.” Hyatt, 316 Mich App at 429. No such explicit finding is required.  Finally, we remand both of these cases to the Court of Appeals for it to review defendants’ sentences under the traditional abuse-of-discretion standard of review.

The dissenting opinion gets started this way:

There is much in the majority opinion with which I agree.  For example, I agree that if MCL 769.25 can reasonably be construed in a constitutional manner, we should so construe it.  And I generally agree with the majority’s discussion of the applicable legal principles.  But I respectfully dissent from the majority’s conclusion that there are two reasonable ways of interpreting MCL 769.25, one of which is constitutional.  Reading the statute as “murder-plus” would violate the Sixth Amendment under Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and its progeny.  And I disagree with the majority that reading the statute as “murder-minus” cures all its constitutional deficiencies. In my view, reading the statute as murder-minus renders it unconstitutional under the Eighth Amendment as interpreted by the United States Supreme Court in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, 577 US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016). Read either way, MCL 769.25 suffers from a constitutional deficiency.

Another Booker, this one in Florida, prevails on a notable Sixth Amendment Blakely claim

I came across a Florida intermediate appellate court opinion today finding Sixth Amendment problems in a Florida statute, but I likely would not have blogged about were it not for the surname of the defendant: Booker!  The name Booker (Freddie J.) will be forever connected to the transformation of the federal sentencing system.  Another Booker (Reginald Lee) seems unlikely to have quite the same impact on Florida sentencing, but his case is still interesting for hard-core Apprendi/Blakely fans.  Here are excerpts from Booker v. Florida, No. 1D15-3558 (Fla. 1st Dist. April 18, 2018)(available here):

The Florida Legislature, faced with budgetary challenges in 2009, sought to reduce the burden of prison expense on the Department of Corrections by mandating that specified, nonviolent offenders, who score under twenty-two points on their criminal scoresheet, be sentenced to nonstate sanctions — thereby shifting incarceration of these offenders to county jails for a maximum of up to one year.  [But it also provided] "if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility."  [This provision], which was used to enhance Booker’s sentence to a state prison sanction, is the focus of the Sixth Amendment claim at issue....

Given the momentous role of the jury in our country’s legal history, and the clarity of the stated principle in Apprendi and Blakely that judicial fact-finding is no substitute for jury factfinding if used for sentencing beyond a relevant statutory maximum, we conclude that the last sentence of subsection (10) violates this principle as applied to Booker.  It empowered precisely what Apprendi and Blakely condemn: giving a trial judge the power to make factual findings independent of the jury (here, about future public dangerousness) that are used to increase an offender’s sentence beyond the maximum allowable by the “facts reflected in the jury verdict alone.” Blakely, 542 U.S. at 303.  As applied to Booker, the result is that, rather than be subject to a maximum of up to a year in a county jail, he is sent to state prison for four years — based solely on factual findings as to his potential for future dangerousness upon which only a judge, not a jury, has passed....

Put simply, section 775.082(10)’s enactment shifted the sentencing paradigm markedly, and in the process eliminated the ability of a jury verdict alone to impose a state prison sanction.  Protection of the jury trial right does not hamstring the Legislature’s ability to achieve its policy goals, however.  For example, if section 775.082(10) required a jury — rather than a judge — to make factual findings about an offender’s potential for future dangerousness, the check on personal liberty that the Sixth Amendment’s right to a jury trial provides would be retained.  A simple legislative fix might be to amend subsection (10) to say: “. . . if the court a jury makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.”  Courts, except by rewriting a clearly-worded statute, cannot achieve this policy result.

Notably, this opinion concludes by noting conflicts with other Florida appellate rulings and then certifying the issue as of "great public importance" for the Florida Supreme Court. So maybe we have not heard the last of the name Booker in Florida.

Sex offender registration laws meet Apprendi procedural rights in new Pennsylvania ruling

A helpful reader altered me to an interesting new ruling from appellate court in the Commonwealth of Pennsylvania, Commonwealth v. Butler, NO. J-A21024-17 (Pa. Supp. Ct. App. Oct. 31, 2017) (available here). Folks concerned about the reach of sex offender registration laws and fans of the Supreme Court's Apprendi line of jurisprudence will both want to check out this opinion.  Here is how it starts and a key part of the ruling:

Appellant, Joseph Dean Butler, appeals from the judgment of sentence entered on August 4, 2016, as made final by the denial of his post-sentence motion on August 10, 2016.  In this case, we are constrained by our Supreme Court’s recent decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), to hold that 42 Pa.C.S.A. § 9799.24(e)(3), a portion of the Sexual Offender Registration and Notification Act’s (“SORNA’s”) framework for designating a convicted defendant a Sexually Violent Predator (“SVP”), violates the federal and state constitutions. As such, we are compelled to reverse the trial court’s July 25, 2016 order finding that Appellant is an SVP and we remand for the sole purpose of having the trial court issue the appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant’s registration requirements....

Apprendi and Alleyne apply to all types of punishment, not just imprisonment.  See S. Union Co. v. United States, 567 U.S. 343, 346-360 (2012).  Thus, as our Supreme Court has stated, if registration requirements are punishment, then the facts leading to registration requirements need to be found by the fact-finder chosen by the defendant, be it a judge or a jury, beyond a reasonable doubt.  See Commonwealth v. Lee, 935 A.2d 865, 880 (Pa. 2007)....

We recognize that our Supreme Court did not consider the ramifications of its decision in Muniz with respect to individuals designated as SVPs for crimes committed after SORNA’s effective date.  Nonetheless, our Supreme Court’s holding that registration requirements under SORNA constitute a form of criminal punishment is dispositive of the issue presented in this case.  In other words, since our Supreme Court has held that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi and Alleyne, a factual finding, such as whether a defendant has a “mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses[,]” 42 Pa.C.S.A. § 9799.12, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder.  Section 9799.24(e)(3) identifies the trial court as the finder of fact in all instances and specifies clear and convincing evidence as the burden of proof required to designate a convicted defendant as an SVP.  Such a statutory scheme in the criminal context cannot withstand constitutional scrutiny.  Accordingly, we are constrained to hold that section 9799.24(e)(3) is unconstitutional and Appellant’s judgment of sentence, to the extent it required him to register as an SVP for life, was illegal.

As a fan of Apprendi rights who has long been concerned that courts sometimes work too hard to limit their logical reach, I am pleased to see this state court come to a seemingly sound conclusion in a controversial setting.  In addition, I get a kick out of imagining, if now asked what case applied Apprendi rights to the SORNA setting, saying "the Butler did it."

Michigan Supreme Court to take up intersection of Apprendi and Miller for juve LWOP sentencing

This local article reports on the notable decision of the top court in Michigan to consider the procedures for deciding whether a juvenile murderer may be sentencing to life without parole.  Here is the backstory:

The Michigan Supreme Court will hear arguments on whether a jury or a judge can decided to send youth offenders to prison for life.  The court issued a decision to hear the arguments in the Tia Skinner case Tuesday, the latest decision that could impact youth-lifers across the state.

In August 2015, the Michigan Court of Appeals ruled the Yale woman convicted in the 2010 killing of her father and attempted murder of her mother should be sentenced by a jury after a hearing to prove beyond a reasonable doubt the killing reflects "irreparable corruption."

St. Clair County Prosecutor Mike Wendling challenged that ruling and asked the Supreme Court to intervene. He said the defense's argument is that a life sentence to a child is the same as a death penalty, which requires a jury to decide. "It's not the same as being put to death," Wendling said.

During the same period, a different panel from the court of appeals ruled a judge should be the one to decide on a life sentence in a juvenile case out of Genesee County. Because of the conflicting rulings, a special conflict panel was assembled by the court of appeals, and in July it ruled judges should handle the re-sentencings.

The legalities of how to re-sentence youth offenders follows the 2012 U.S. Supreme Court ruling that automatic life sentences to those under 18 constituted cruel and unusual punishment. That decision impacts four St. Clair County cases — Skinner, Raymond Carp, Michael Hills and Jimmy Porter....

If a jury is required to set the sentence, Wendling said his office will have to decide if the Skinner, Porter and Hills cases can be successfully recreated for a jury. He said victims and family will also weigh on that decision.

As the title of this post suggests, I think it is more the Apprendi line of jurisprudence than capital jurisprudence that really serves as a basis for contending a jury must make the key finding to permit a juve LWOP sentence. For complicated reasons, I do not think Apprendi must or even should be interpreted to impact Miller-required re-sentencings, but I can understand why some may be inclined to apply Apprendi and Miller this way.

Hawaii Supreme Court refuses to exempt recidivist enhancement from Apprendi mandates

A helpful reader alerted me to a notable ruling last week by the Hawaii Supreme Court rejecting broad application of Apprendi's prior conviction exception. Hawaii v. Auld, No. SCWC-13-0002894 (Haw. Nov. 24, 2015) (available here), which discusses Alleyne and Almendarez-Torres at length, is a must-read for all hard-core Apprendi fans. It concludes this way:

We hold that, under article I, sections 5 and 10 of the Hawai'i Constitution, the State must allege the predicate prior conviction(s) in a charging instrument in order to sentence the defendant to a mandatory minimum sentence as a repeat offender under HRS § 706-606.5.  We further hold that, as a matter of state law, Apprendi’s “fact of prior conviction” exception does not apply to repeat offender sentencing under HRS § 706-606.5, and that a jury is required to find that the defendant’s prior conviction(s) have been proved beyond a reasonable doubt to trigger the imposition of a mandatory minimum sentence under that statute.  As these new rules result from the express overruling of prior appellate precedent holding that the Apprendi rule did not apply to mandatory minimum sentencing and that notice of repeat offender sentencing did not need to be given in a charging instrument, they are given prospective effect only.

Split Michigan appeals court finds juve has Sixth Amendment right to jury findings for LWOP sentence

Thanks to a few helpful readers, I learned about a very interesting split panel ruling today from the Michigan Court of Appeals in Michigan v. Skinner, No. 317892 (Mich. Ct. App. Aug. 21, 2015). Here is how this majority opinion starts in Skinner:

This case presents a constitutional issue of first impression as to whether the Sixth Amendment mandates that a jury make the findings set forth by Miller v Alabama, 576 US ___; 132 S Ct 2455; 183 L Ed 2d 407 (2012) as codified in MCL 769.25(6), before sentencing a juvenile homicide offender to life imprisonment without the possibility of parole.  We find that the Sixth Amendment mandates that juveniles convicted of homicide who face the possibility of a sentence of life without the possibility of parole have a right to have their sentence determined by a jury.  In so finding, we expressly reserve the issue of whether this defendant should receive the penalty of life in prison without the possibility of parole for a jury.  In this case, defendant requested and was denied her right to have a jury decide her sentence.  Accordingly, we vacate her sentence for first-degree murder and remand for resentencing on that offense consistent with this opinion.

Here is how this dissenting opinion in Skinner gets started:

I respectfully dissent. While the majority sets forth a strong argument, it ultimately fails because it is based upon a false premise: that Apprendi and its progeny requires that all facts relating to a sentence must be found by a jury.  Rather, the principle set forth in those cases establishes only that the Sixth Amendment right to a jury trial requires the jury to find those facts necessary to impose a sentence greater than that authorized by the legislature in the statute itself based upon the conviction itself.  And the statute adopted by the Michigan Legislature with respect to juvenile lifers does not fit within that category.

I am going to need some time to read these opinions closely before I weigh in, but I would guess that the Michigan Supreme Court (and maybe even the US Supreme Court) will have its say before long on this matter.

Based on Alleyne, Michigan Supreme Court declares its state guidelines unconstitutional and now advisory

As reported in this local press article, "the Michigan Supreme Court ruled Wednesday that the state’s sentencing guidelines that mandate prison terms are unconstitutional, and that judges should use them only in an advisory capacity." Here are excerpts from the state of the majority opinion in Michigan v. Lockridge, No. 149073 (Mich. July 29, 2015) (available here):

This case presents the question whether the Michigan sentencing guidelines violate a defendant’s Sixth Amendment fundamental right to a jury trial.  We conclude that the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficient. That deficiency is the extent to which the guidelines require judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the “mandatory minimum” sentence under Alleyne.

To remedy the constitutional violation, we sever MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory.  We also strike down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure.

Consistently with the remedy imposed by the United States Supreme Court in United States v Booker, 543 US 220, 233; 125 S Ct 738; 160 L Ed 2d 621 (2005), we hold that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness.  Booker, 543 US at 264.  To preserve as much as possible the legislative intent in enacting the guidelines, however, we hold that a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence. Id.

Two of the seven Michigan Supreme Court Justices dissented from the majority opinion, and a lengthy dissent authored by Justice Markman ends this way:

I conclude that under the Sixth Amendment a criminal defendant is not entitled to a jury determination of facts necessary to establish his or her minimum parole eligibility date. Under Michigan’s sentencing system, the jury has the authority to render a defendant subject to the statutory maximum punishment, and the judge has no influence over this authority or any authority to usurp it.  The judge’s exercise of judgment in establishing a parole eligibility date does not infringe the authority of the jury and does not violate the Sixth Amendment of the United States Constitution.  Furthermore, Michigan’s indeterminate sentencing guidelines do not produce “mandatory minimum” criminal sentences, and because Alleyne only applies to facts that increase “mandatory minimum” sentences, Alleyne is inapplicable to our state’s guidelines.  Therefore, I conclude that Michigan’s sentencing system does not offend the Sixth Amendment and would therefore affirm the judgment of the Court of Appeals.

"Juries and Prior Convictions: Managing the Demise of the Prior Conviction Exception to Apprendi"

The title of this post is the title of this notable new paper by Nancy King now available via SSRN. Here is the abstract:

This essay offers a menu of procedural alternatives for coping with the potential, some would say inevitable, abandonment of the prior conviction exception to the rule in Apprendi v. New Jersey.  It compiles options states have used for years to manage jury prejudice when proof of prior conviction status is required, including partial guilty pleas, partial jury waivers, bifurcation of the trial proceeding, stipulations, and rules limiting what information about the prior conviction may be admitted.

These options belie the claim that the exception must be preserved to prevent jury prejudice against defendants.  For courts and legislatures interested in anticipating this development in Apprendi law, or interested in joining the states that already recognize that a prior conviction must be proven like any other element whenever it increases the penalty range beyond the range allowed without the conviction, this essay provides a handy reference to existing rules and statutes that could serve as blueprints for reform.

Detailing the Keystone State's enduring Alleyne problems

This local AP story from Pennsylvania, headlined "Supreme Court ruling snarls sentencing minimums," provides another review of the headaches that state courts are facing with its sentencing scheme in the aftermath of the US Supreme Court's Sixth Amendment ruling in Alleyne last year. Here are some excerpts:

A U.S. Supreme Court decision last year has prompted dozens of appeals in criminal cases across Pennsylvania and left judges scratching their heads on how to apply state laws on mandatory minimum sentences. The confusion has prompted meetings among judges, forced some judges to try out new jury instructions and even led some jurists to conclude that whole sections of state law are unconstitutional.

Legal experts say what happens next will be driven largely by cases already on appeal to the Pennsylvania Supreme Court. “No appellate court in Pennsylvania has gotten around to definitively deciding the question, and everybody, it seems, is waiting for someone else to decide it,” said St. Vincent College law professor Bruce Antkowiak, a former federal prosecutor and defense attorney.

The stumbling block is Alleyne v. United States, a high court decision stemming from a Virginia federal court case that found that juries, not judges, should decide whether a defendant committed crimes that trigger a mandatory minimum sentence. But Pennsylvania law says a jury decides a person’s guilt or innocence of the underlying crime, such as drug possession or robbery. A judge then uses a lower standard of proof to decide whether the mandatory sentencing “triggers” were proved — such as being in a school zone when drug dealing or brandishing a gun during the robbery.

Judges in at least one jurisdiction, Blair County in central Pennsylvania, recently decided to stop imposing mandatory minimum sentences altogether until the General Assembly rewrites the statutes. The judges made the decision after hearing arguments from prosecutors and a defense attorney for two men facing five-year mandatory minimums — one accused of dealing drugs in a school zone; the other charged with having a weapon while in possession of marijuana....

Since the Alleyne ruling, some Pennsylvania judges have begun asking juries to determine whether certain mandatory minimum triggers have been proved, even though state law doesn’t allow that. Other judges have ruled that Alleyne makes Pennsylvania criminal statutes containing mandatory minimum sentencing provisions unconstitutional in their entirety.

In eastern Pennsylvania, Lycoming County District Attorney Eric Linhardt said judges there first allowed juries to decide mandatory minimum sentences before reversing course and ruling the statutes illegal. “Ten cases are presently on appeal, and many others will soon follow,” Linhardt said, adding the impasse could affect 100 pending drug cases in his office.

Recent related post:

• Noting challenges for mandatory minimum sentencing in Pennsylvania in wake of Alleyne

Noting challenges for mandatory minimum sentencing in Pennsylvania in wake of Alleyne

This local story from Pennsylvania, headlined "Mandatory sentencing disrupted by Supreme Court," discusses some of the difficult issues arising in the Keystone state as a result of the Supreme Court's Sixth Amendment ruling in Alleyne last year. Here are some details:

For the second time in a month, a Common Pleas Court judge has declared a mandatory sentencing provision inserted into a drug trafficking charge unconstitutional because it contradicts a U.S. Supreme Court decision handed down in June of last year.  Judge Phyllis Streitel, in a one-page order issued Tuesday, said the provision that would set a prison term at three years for the defendant, Demetrius Aaron Hardy of Las Vegas, Nev., could not be applied to him in the formal charges leveled by the prosecution without butting up against the high court’s decision....

Alleyne has set prosecutors across the state, including in Chester County, scrambling to add the minimum mandatory provision to drug charges.  It has also led to a slew of challenges to the moves, including an earlier county case that is now before the state Supreme Court.  “It’s a mess,” said one veteran West Chester defense attorney familiar with the appeals but who spoke on the condition on anonymity because he was not authorized to comment on the matter.  “Most of the judges are finding these cases to be unconstitutional.  It has go to be fixed by the legislature, or else there won’t be any more mandatories.”

Mandatory sentences gained popularity in the 1980s, and are now commonplace in many drug prosecutions.  District attorneys appreciate them because they add a level of security in what sentence a particular defendant will receive.  Judges are uncomfortable with them at times, because they remove a level of discretion they have in sentencing individual defendants.  And defense attorneys bristle at them, because they give the prosecution added leverage during plea negotiations with the threat of imposing a mandatory minimum should the defendant seek to go to trial....

Streitel issued a similar order on April 25 in the case of a 49-year-old West Nantmeal man, Dennis “Spanky” Alenovitz, who was arrested in early 2013 on charges that he sold methamphetamine to an confidential informant from his home on Pumpkin Hill Road over a two-month period. Alenovitz is also represented by Green.

The weights of the methamphetamine Alenovitz is alleged to have sold would have in the past automatically set his mandatory prison terms at three or four years, depending on the transaction, should be the prosecution asked the judge sentencing him to impose it.  But under the Alleyne ruling, the weight of the drugs triggering those mandatory sentences would have to be determined by a jury hearing Alenovitz’s case, not a judge, and be proven beyond a reasonable doubt....

Judge David Bortner had already ruled in another county case that adding mandatory provision to a criminal charge was unconstitutional.  That case, involving a Kennett Square man arrested by state police in April 2012, involves a mandatory sentence for selling drugs in a school zone.  That case is currently before the state Supreme Court on appeal by the prosecution.  It is among 11 such cases the court has agreed to hear to sort out the constitutionality of the provision, including ones from Montgomery and Luzerne counties....

Whether or not the mandatory provisions added to the charges are upheld or thrown out, the cases against Hardy, Alenovitz, and the defendant in Bortner’s case are not going to disappear; they will still be charged with selling drugs. If convicted, they would also still be subject to possible prison terms — even as long as the mandatory sentences the prosecution is seeking. But the eventual sentence in those cases would be up to a judge, not a prosecutor.

"Alleyne on the Ground: Factfinding that Limits Eligibility for Probation or Parole Release"

The title of this post is the title of this notable new article by Nancy King and Brynn Applebaum now available via SSRN. The piece contends that the Supreme Court's Sixth Amendment ruling in Alleyne v. United States last Term renders a number of state sentencing systems constitutionally suspect, and here is the abstract:

This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, in both determinate and indeterminate sentencing jurisdictions, under statutes that limit the option of imposing either probation or a suspended sentence upon judicial fact finding.

In this Article, we argue that Alleyne invalidates such statutes. We provide analyses that litigants and judges might find useful as these Alleyne challenges make their way through the courts, and offer a menu of options for state lawmakers who would prefer to amend their sentencing law proactively in order to minimize disruption of their criminal justice systems.

Sixth Circuit panel grants habeas relief to Tennessee defendant sentenced in violation of Blakely

Sadly, I no longer get ample opportunities to blog about Blakely Sixth Amendment sentencing issue these days -- though I suppose this could change if (and when?) the Supreme Court give these issues a new boost via a big ruling in Alleyne in the near future.  Joyfully, this morning brings a little Blakely-era nostalgia via the Sixth Circuit's habeas grant in Lovins v. Parker, No. 11-5545 (6th Cir. Mar. 28, 2013) (available here).   This extended decision gets started this way:

After a Tennessee state court jury convicted petitioner Derry Lovins of second-degree murder, the state trial court judge made additional factual findings and enhanced Lovins’s sentence from twenty to twenty-three years based on those findings.  In this petition for a writ of habeas corpus under 28 U.S.C. § 2254, Lovins raises various claims of trial error and argues that the threeyear sentence enhancement was unconstitutional under the rule of Blakely v. Washington, 542 U.S. 296 (2004), because the sentence was enhanced based on facts that were not found by a jury.  The history of Lovins’s requests for relief in state court is byzantine, but the legal principles are not.  Lovins’s direct appeal was not final until almost three years after the Blakely decision, and therefore Blakely applies to his case under the clearly-established retroactivity rules of Griffith v. Kentucky, 479 U.S. 314 (1987), and Teague v. Lane, 489 U.S. 288 (1989).  For this reason, and because the procedural default doctrine does not bar our review of the merits of Lovins’s Blakely claim, we REVERSE the district court’s denial of relief, and we conditionally GRANT a writ of habeas corpus on the Blakely sentencing claim only.  We AFFIRM the district court’s denial of relief on all of Lovins’s other claims.

Sixth Circuit finds no constitutional problems with Ohio's judicial Blakely fix

A helpful reader alterted me to a new Sixth Circuit ruling today in Ruhlman v. Brunsman, 09-4528 (6th Cir. Dec. 23, 2011) (available here), which sorts through a habeas challenge to how Ohio courts dealt with its Blakely issues. Though these two paragraphs from the opinion may only make sense to hard-core Blakely fans, they capture the essence of the ruling:

We disagree and conclude that Ruhlman’s due-process rights were not violated. Foster did not alter the applicable sentencing range for attempted rape, which has consistently been two to eight years. See O.R.C. §§ 2923.02, 2907.02, 2929.14(A)(2). Nor did it alter the elements of the substantive offense of attempted rape. Further, when Ruhlman committed the offense, he was subject to a sentence in excess of two years by virtue of the fact that he had served a prior prison term.  See id. § 2929.14(B)(1).   In addition, at the time he committed the offense, Ruhlman was on notice that he was subject to a longer sentence contingent upon a trial-court finding that a minimum sentence would demean the seriousness of his conduct or would not adequately protect the public from future crimes, O.R.C. § 2929.14(B)(2), and a maximum eight-year sentence if the sentencing court found him to be a sexual predator who posed the greatest likelihood of recidivism.  See id. § 2929.14(C).  Therefore, pre-Foster, Ruhlman was on notice that he could receive an eight-year sentence for his actions if the court were to make certain findings. The court made these findings at Ruhlman’s first sentencing and imposed the maximum sentence. The fact that the court imposed that very sentence post-Foster was neither “unexpected [nor] indefensible by reference to the law” that applied when Ruhlman committed his offense. Bouie, 378 U.S. at 354 (citation omitted).

The Ohio Supreme Court’s determination that the relevant portions of Ohio’s statutory sentencing scheme violated Blakely and its decision to sever those portions does not in and of itself implicate ex-post-facto-type due-process rights.   The court simply acknowledged that if a fact is necessary to support a particular sentence, that fact must be found by the jury, rather than a judge. The court remedied the problem by following Booker and severing and striking the provisions, with the result that any sentence within the range specified by statute for the offense could be imposed by the court if consistent with the remaining sentencing criteria.   Defendants committing crimes before Foster cannot claim that they have an ex-post-facto-type due-process right to have sentencing elements found by a jury, because the unconstitutionality of the sentencing scheme does not negate its existence.

"Is California’s Cunningham fix finally going to see the sun set?"

Lawyer and sentencing guru Mark Allenbaugh (firm website here) alerted me to an important developing issue in the revision and reform of California's sentencing law. At my request, Mark kindly wrote this post's title and this terrific guest-post on the topic:

In 2007, the U.S. Supreme Court in Cunningham v. California ruled that California’s three-tiered determinate sentencing scheme (known as the Determinate Sentencing Law or DSL) was unconstitutional per Apprendi v. New Jersey and Blakely v. Washington, ostensibly ending its 30-year reign.   Like its far more robust federal counterpart, DSL has been met with constant criticism.

Under California’s DSL, the presumptive sentence was the so-called mid-term sentence. For example, if the three terms available were 16, 24 and 36 months (and this is generally how the terms are spread, i.e., over a definite period of years), the sentencing judge would have to sentence the offender to 24 months (which really means a prison term of 12 months, since California is a half-time state, i.e., one can get up to 50% good time credit unlike the pithy 15% at the federal level) unless the judge found certain factors in mitigation, which would allow for a sentence at the low term (16 months in this case) or factors in aggravation, which would allow a sentence at the high term — 36 months.   Of course, this latter example was exactly the problem with California’s DSL, or so thought the U.S. Supreme Court — the presumptive mid-term sentence of 24 months really was the statutory maximum, which, since it could be raised to 36 months by judicial fact-finding, violated Apprendi.

Shortly after Cunningham the California legislature passed S.B. 40, which supposedly would provide a “Cunningham fix” by eliminating the mid-term presumption.   The legislation simply provided that a judge had discretion to sentence to any of the three terms, thereby ostensibly making the high-term the statutory maximum term.   Wisely, the legislature put a sunset provision into the 2007 law, which is now set to expire on January 1, 2012.

In light of the current financial crises effecting so many government institutions in the state (it was not that long ago when the “Governator” had to pay state employees with IOUs), coupled with the recent U.S. Supreme Court decision in Brown v. Plata upholding a federal three-judge panel’s order that California must significantly reduce its prison population, it is surprising that a new piece of legislation — S.B. 576 — that will, if passed, extend the Cunningham fix’s sunset provision to 2014, hasn’t received more attention. Just last week, on August 25, the bill was unanimously voted out of committee and may soon be on Governor Brown’s desk.  Sources indicate that the bill could be on the Governor’s desk as early as the end of this week!

An easy way, it would seem, to begin addressing California’s prison over-crowding crisis would be to let the Cunningham fix die a dignified death.   Making aggravating facts that must be proved to a jury to get the high-term obviously will make it more difficult to sentence offenders to the high-term, but will also ensure the due process rights that concerned the Supreme Court in Cunningham are met.  What California needs is not clever sentencing legislation to do an end-run around due process, but, as even President Obama has championed through the Fair Sentencing Act, smarter sentencing schemes that do not result in over-crowded prisons, which breed a culture of recidivism.

Ironically, it was Governor Brown (aka “Governor Moonbeam” for the disco generation) who signed California’s DSL into law in 1977.   He too has been a vocal critic of the DSL even while serving as the State’s Attorney General.   Now once again in the Governor’s seat, if presented with the bill to sign into law by the legislature, and in consideration of the fiscal, legal and humanitarian realities facing California’s prison system, Governor Brown would be wise to heed the words of his former girlfriend Linda Ronstadt and say to the bill “You’re no good! You’re no good! You’re no good! Baby, you’re no good!”

Montana murder defendant raising Ring challenge to state's death penalty

As detailed in this local article, which is headlined "Tyler Miller murder case: Attorneys challenge death penalty," the lawyers "for accused double murderer Tyler Michael Miller are asking a Flathead District judge to rule that Montana’s death penalty statutes are unconstitutional."  Here is more:

Miller, 34, has been charged with two counts of deliberate homicide for the Christmas Day shooting deaths of his ex-girlfriend Jaimi Hurlbert and her 15-year-old daughter Alyssa Burkett.  The Flathead County Attorney’s Office filed amended charges March 9 indicating it would seek the death penalty for Miller.

Miller’s attorneys Ed Sheehy and Noel Larrivee submitted a motion Wednesday stating that Montana’s death penalty statutes are unconstitutional because sentencing powers are vested in judges rather than juries.  The 19-page filing argues that the procedure violates the sixth and 14th amendments to the United States Constitution, which require that “other than prior convictions, any fact increasing the statutory maximum (sentence) must be submitted to a jury and proven beyond a reasonable doubt.”

The attorneys wrote that the Montana Code Annotated is flawed because it allows judges to evaluate whether or not there are mitigating or aggravating circumstances to support the death penalty and gives them the ultimate power to decide whether or not to pronounce a capital sentence.

New report taking "the long view" on Ohio's crowded prisons notes Blakely's impact

The Ohio Criminal Sentencing Commission has released this fascinating new report titled "Prison Crowding: The Long View, With Suggestions." There are lots of interesting part of this document, but these parts from the executive summary strike me as especially blog-worthy:

Most of this report takes you through the recent history of Ohio’s prison population (see A Short Primer on Prison Crowding, beginning on p. 4).  As Ohio faces record deficits and record prison populations, that primer should be worth 15 minutes of your time.  The table on p. 6 is especially useful.  Several informed suggestions designed to ease the problem begin on p. 14.  Here are a few of the report’s highlights:

• Ohio prisons now hold about 50,500. That’s 6½ times the number held in 1974. That puts the prison system 31% over its rated capacity, with about 12,500 more inmates than the prisons were built to hold...

• For years, the prison population increased as prison intake grew. However, recent growth in Ohio’s prison population — even with mandatory sentences and scores of bills that increase penalties for particular offenses — is not driven primarily by intake (although it is a factor).  It’s largely fueled by increases in inmates’ average length-of-stay...

• In the past 35 years, the only period in which the Ohio prison population remained relatively static was the first decade under S.B. 2, from 1997-2006.  That bill increased the actual time served for high level offenders but made tradeoffs for others, including meaningful checks on length-of-stay....

• A peculiar line of U.S. Supreme Court cases led the Ohio Supreme Court to strike down S.B. 2’s key length-of-stay restrictions in 2006.  Even when accounting for other factors, these decisions led to an increase in average time served of almost 5 months per inmate. The cumulative “Blakely/Foster effect” so far has been well over 4,000 beds.  None of this growth came from tough-on-crime legislation.

Prosecutors win one round of the sentencing reform debate in Indiana

This interesting new story from Indiana, headlined "Daniels-backed prison reform is dealt a blow by prosecutors," spotlights how readily a legislature can morph a sentence-reducing reform proposal into a sentence-enhancing reform proposal. Here are the details:

A criminal justice reform bill that Gov. Mitch Daniels hoped would save more than $1 billion by reducing the number of people held in prison is headed to the Senate floor.  But the bill, approved 8-2 by a Senate committee Monday, has changed so much because of pressure from prosecutors that it's no longer clear whether it will save any money in the long term.

"We just don't accept the idea that because the Department of Correction has a bed problem that we should be releasing serious felons back on the street," said Sen. Sue Glick, R-LaGrange, a member of the Senate's Corrections, Criminal and Civil Matters Committee.  Despite the setback, the governor's office pointed out that Senate Bill 561 could easily change again.  Both the full Senate and the House will have opportunities to amend it....

Many of the provisions of the original bill -- aimed at diverting low-level drug offenders to treatment and community corrections -- still remain in some form. But the bill's overhaul is a major victory for prosecutors, who persuaded lawmakers to add a provision ensuring serious violent felons serve at least 85 percent of their sentences.  Currently, most offenders have to serve only half their sentences because they earn a day of credit for each day of good behavior....

Prosecutors also headed off an effort in the original bill to reduce the "drug-free zones" -- the 1,000-foot areas around schools, apartment complexes, public parks and housing projects where drug transactions carry an enhanced sentence -- to 200 feet.   A study by DePauw University students found that 53 percent of the area inside I-465 is in a drug-free zone.  Sometimes, the students found, offenders facing the enhanced charges had been selling drugs in their own apartments with no children present.

Daniels and Chief Justice Randall Shepard had strongly endorsed the reforms, and in his State of the State speech this year, Daniels told lawmakers the package aimed for "smarter" incarceration and urged them to "seize this opportunity."  But those savings are called into question by the prosecutors' 85 percent provision, which will force the Department of Correction to house serious felons much longer than the think tanks had anticipated.  The researchers' analysis also anticipated that reducing the 1,000-foot drug-free zones would lead to fewer sentence enhancements.

The bill somewhat accomplishes one of its original key goals -- bringing some of Indiana's unusually harsh penalties for low-level offenses more into line with neighboring states. Theft of less than $750 would no longer be a felony; it would be a misdemeanor.  Prison time for selling and possessing cocaine and methamphetamine would be shorter.  "There's a lot of things in that bill that are good," said Larry Landis, executive director of the Indiana Public Defender Council.

Lawmakers also added an effort to help low-level felons rejoin society, though prosecutors expect to target that provision for elimination.  A person convicted of a nonviolent felony crime could petition the court to make that conviction invisible to employers -- though not to police -- after waiting eight years from the end date of their sentence.

Ohio Supreme Court decides Ice did not freeze out part of its prior Blakely ruling

Yesterday, the Ohio Supreme Court issued an interesting decision that had the Ohio Justices debating a post-Blakely sentencing issue that would make a great paper topic in an advanced con law seminar. The start of the majority opinion in State v. Hodge, No. 2010-Ohio-6320 (Dec. 29, 2010) (available here), sets up the basic story:

In State v. Foster, 109 Ohio St.3d 1, this court held some sections and provisions of Ohio’s sentencing statutes unconstitutional based on the decisions of the United States Supreme Court in Blakely v. Washington (2004), 542 U.S. 296, and Apprendi v. New Jersey (2000), 530 U.S. 466.

Among the provisions held unconstitutional in Foster were those requiring a trial judge to make certain findings prior to imposing consecutive sentences, R.C. 2929.14(E)(4), and creating presumptively concurrent terms, R.C. 2929.41(A).  To remedy this constitutional defect, these provisions were severed from the remaining, valid portions of the statutory sentencing framework.  After the decision in Foster, trial judges who imposed consecutive sentences did not need to apply the provisions severed by Foster but instead were to apply the law that was displaced by the enactment of the severed provisions.  The trial court in this case, as allowed by our decision in Foster, imposed consecutive sentences without making factual findings under R.C. 2929.14(E)(4) or presuming that sentences were to run concurrently under R.C. 2929.41(A).

Subsequent to Foster, the United States Supreme Court, in Oregon v. Ice (2009), 129 S.Ct. 711, upheld the constitutional validity of an Oregon statute similar to Ohio’s pre-Foster sentencing statutes that requires Oregon’s trial judges to make factual findings prior to imposing consecutive sentences.

The defendant in the case now before us asks us to hold that Oregon v. Ice reinstated or revived the Ohio statutory provisions pertaining to consecutive sentences that were held unconstitutional in Foster.  He also argues that certain defendants who were sentenced to consecutive terms after Foster must be resentenced pursuant to the provisions that were invalidated in Foster.

For the reasons that follow, we determine in the circumstances present here that Ice does not revive the disputed statutory provisions and that defendants who were sentenced by trial judges who did not apply those provisions are not entitled to resentencing.  We accordingly affirm the judgment of the court of appeals.

Although we affirm the judgment below, we acknowledge that given the holding and reasoning of the United States Supreme Court in Ice, the General Assembly is no longer constrained by Foster’s holdings regarding the constitutionality of the consecutive-sentencing provisions invalidated in Foster, and may, if it chooses to do so, respond with enactment of a statutory provision in light of Ice’s holding.

The start of a dissent by Chief Justice Brown highlights the interesting constitutional issues that flow into this issue:

I agree with the majority that Oregon v. Ice (2009), 129 S.Ct. 711, does not overrule this court’s decision in State v. Foster, 109 Ohio St.3d 1, regarding Ohio’s consecutive-sentencing statutes, and that the issuance of Ice does not automatically revive or reinstate the consecutive-sentencing statutory provisions held unconstitutional in Foster. But Ice does demonstrate that the analysis used by this court in Foster regarding judicial fact-finding and consecutive sentences was incorrect.  The majority all but concedes that it erred in holding in Foster that R.C. 2929.14(E)(4) and 2929.41(A) are unconstitutional because they require judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant before the imposition of consecutive sentences. Majority Opinion at ¶ 10.  Despite this court’s error in Foster, however reasonable it may have been at the time it was issued, the majority essentially refuses to correct this error because it believes it is too inconvenient to do so.  In so holding, the majority violates the fundamental principle of separation of powers and ignores the intent of the General Assembly.  Therefore, I dissent.

Split Missouri Supreme Court upholds LWOP adult sentence for 15-year-old cop killer

The Missouri Supreme Court today in a split 4-3 ruling upheld against various challenges an LWOP sentence for a 15-year-old murderer in Missouri v. Andrews, No. SC91006 (Mo. Dec. 21, 2010) (available here). Here is how the majority opinion gets started:

Antonio Andrews appeals the jury's verdict finding him guilty of first degree murder for shooting and killing a police officer and the sentence imposed on him for that crime of life without parole.  This case came directly to this Court because Andrews challenges the constitutional validity of two Missouri statutes.  He challenges Missouri's juvenile-certification statute, § 211.071, RSMo 2000, as violating his right to a jury trial in a criminal prosecution under the Sixth Amendment as applied in Apprendi v. New Jersey, 530 U.S. 466 (2000). He also challenges the validity of the mandatory sentencing of a minor to life without parole for committing first degree murder as prescribed by § 565.020, RSMo 2000, as violating the Eighth Amendment prohibition against cruel and unusual punishment.  In addition, Andrews appeals the jury's verdict claiming that there was insufficient evidence from which a reasonable jury could conclude Andrews committed first degree murder.  Finally, Andrews claims the trial court erred by overruling his motion in limine, which sought to prevent uniformed police officers from being present during the jury trial.  Affirmed.

A lengthy dissenting opinion by Justice Wolff asserts that the defendant in this case had his Eighth Amendment rights violated.  He states that "[s]entencing juvenile offenders to life without the possibility of parole is cruel and unusual punishment because society’s standards have evolved to prohibit it."  Another lengthy dissenting opinion by Justice Stith finds asserts that the defendant in this case had his Sixth Amendment rights violated.  She states:

When a court decides that a juvenile is to be tried as an adult, Apprendi requires that the Sixth Amendment command of a jury trial be obeyed.  The jury’s verdict alone in this prosecution is insufficient to punish a 15-year-old defendant such as Antonio with a lifetime in prison.  To prosecute Antonio as an adult, and to impose a sentence of life without parole, the additional fact-finding mandated by Missouri’s juvenile certification process also is necessary.  To allow this additional fact-finding to be made by a judge and not by a jury violates the defendant’s fundamental right to a jury under the Sixth Amendment of the United States Constitution.

It will be very interesting to see if four Justices of the US Supreme Court might have an interest in taking up either of the (crisp?) constitutional issues presented by this case.

Incoming Ohio Governor Kasich having to face over-crowded prisons and tight budgets

The Columbus Dispatch this morning has an above-the-fold, front-page article on Ohio's prison problems.  Here are lengthy excerpts from this effective article, which is headlined "Prison reform awaits Kasich; Changing overcrowded system won't be easy":

[Ohio] prison administrators have been pushing for years to stem the tide of incoming inmates to save money and reduce crowding.  Ohio prisons house 50,976 offenders (33 percent over capacity), have a staff of more than 13,300 employees and a two-year, $3.54 billion budget.

That makes prisons one of the largest single categories in the state budget, accounting for roughly 7 percent of general fund spending, and a top target for cutbacks as state officials struggle to deal with an impending $8 billion shortfall.

Gov.-elect John Kasich has made it clear that changes in prisons, including privatization and sentencing reform, will be in his sights when he takes office Jan. 10.  "Everything is on the table. Is it possible to have private companies run prisons, build prisons?  Of course it is; we're looking at it," Kasich told The Dispatch last week.  "But corrections reform is critical.  It's one of the big cost sinks that we have.  We've got some states that are releasing people because they can't control their costs. We have to think intelligently about how we're going to do this."

Kasich, who beat incumbent Democrat Gov. Ted Strickland last month, said locking up offenders who have committed "relatively minor crimes" in costly state prisons "doesn't make sense to me.  "You want to put your prisoners in an environment where the public is safe, but where it's the least costly," he said.

One of the complaints Kasich has voiced frequently since the Nov. 2 election is that Ohio locks up "check-kiters and people who don't pay child support" when they could be punished at lower cost outside prison.  However, the state prison census shows there were 51 offenders behind bars for writing bad checks and 372 for failure to pay child support. Those categories, combined, account for less than 1 percent of the total prison population.

Cutting costs sounds reasonable but isn't easy in an overcrowded system with high security needs and court-ordered mandates for medical and mental-health care of inmates.

New Department of Rehabilitation and Correction budget estimates reveal the consequences of even a 10 percent cut, including the closing of prisons and the layoff of more than 2,500 employees.  It also could mean eliminating funding for 972 halfway-house beds, 1,547 community-diversion offenders and 2,200 offenders in city and county jail programs funded by the state.

As for privatizing, the state already contracts for the operation of two private prisons: North Coast Correctional Treatment Facility, a 552-bed, minimum-security facility for alcohol and drug offenders in Grafton in Lorain County, and the Lake Erie Correctional Institution, a 1,380-bed, minimum- and medium-security prison in Conneaut in Ashtabula County.  Both are operated by Management & Training Corp. of Centerville, Utah....

State lawmakers vigorously resisted a sentencing-reform proposal that had bipartisan support from the Strickland administration and state Sen. Bill Seitz, R-Cincinnati.

Included in Strickland's proposed two-year budget in 2009 -- but stripped out by fellow Democrats -- was a proposal to reduce the prison population by more than 6,400 inmates, saving $29.1 million annually. It would have granted "earned credit" to release 2,644 prisoners, diverted 2,644 nonviolent offenders to community programs, sentenced 527 child-support violators to community sanctions and reduced re-sentences for parole violations by 591.

Seitz introduced a version of the proposal, but it also died under withering criticism from prosecutors and conservative Republican legislators.  More recently, prisons chief Ernie Moore said he wants to reduce the prison population to 48,000 by 2013.  He plans to divert more inmates to transitional control, work with judges to reduce the number of offenders returned to prison for technical violations and boost community programs for higher-risk offenders.

I am very pleased to hear my new Governor say that "everything is on the table" for dealing with these prison crowding and expense issues in Ohio.  I wonder if that really include drug offense and structured sentencing reform as well as back-end sentencing policy changes like more earned-time credit. 

Among many interesting aspects of the Ohio sentencing and corrections story is the fact that, as detailed in this recent report, prison terms have gone up since the Ohio Supreme Court responded to the Blakely SCOTUS decision by giving Ohio sentencing judges greater sentencing discretion.  Unlike in the federal system, where the guidelines tend to drive up prison terms, in Ohio structured sentencing reforms tended to keep prison sentences down.  But since that structure became just advisory in Ohio, sentence lengths have crept up.

Blakely meets Crawford in interesting NC appeals court ruling

A couple of helpful readers alerted me to an interesting opinion issued today by a North Carolina intermediate appellate court in North Carolina v. Hurt, No. COA09-442 (N.C. App. Nov. 16, 2010) (available here). This paragraph from early in the opinion highlights why Hurt is a must-read for all hard-core Sixth Amendment fans:

Whether a defendant has a right to confront witnesses against him at sentencing trials conducted pursuant to Blakely is an issue of first impression in our courts.  Defendant contends that United States Supreme Court decisions Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), and, by extension, Melendez-Diaz v. Massachusetts, 557 U.S. __, 174 L. Ed. 2d 314 (2009), should apply at all sentencing proceedings, whether capital or non-capital, that are held before a jury.  For the reasons discussed herein, we agree that the Confrontation Clause of the Sixth Amendment applies to all sentencing proceedings where a jury makes the determination of a fact or facts that, if found, increase the defendant’s sentence beyond the statutory maximum.  Thus, because the trial court’s admission of testimonial hearsay evidence during the aggravation phase of Defendant’s sentencing proceedings violated the Confrontation Clauses of the federal and state constitutions and the constitutional errors were not harmless beyond a reasonable doubt, we remand this case for a new sentencing hearing.

Arguments made to Missouri Supreme Court against mandatory juve LWOP

This local article, which is headlined "Mo. high court is asked to end mandatory life sentences for young killers," reports on a notable effort to extend the Supreme Court's recent Eighth Amendment work in Graham (with dash of Blakely throw in for good measure).  Here are the details:

An attorney for a St. Louis teen, sentenced to spend his life in prison after he was convicted of killing police officer Norvelle Brown, argued Wednesday that juveniles should not receive automatic life sentences.

Attorney Brocca Smith said that for a juvenile, a mandatory sentence of life in prison without parole is cruel and unusual punishment and urged the Missouri Supreme Court to declare it unconstitutional.  Smith limited her argument to juveniles and only those who have received an automatic sentence of life without parole.

Missouri law requires people convicted of first-degree murder to be executed or sentenced to life in prison.  Smith said the problem with mandatory sentences is judges and juries cannot consider juveniles' age, maturity and other mitigating factors before deciding upon the punishment.  "Children are simply not as culpable as adults, and they can't be treated the same under the law," she said....

Missouri Supreme Court Judge Laura Denvir Stith, who was among the most active with her questioning during oral arguments Wednesday, said the next question with juveniles was whether it is acceptable to sentence teens to life automatically without evaluating each defendant....

Missouri Assistant Attorney General Evan Buchheim defended the life sentence Wednesday.  He told the state high court that nearly every state has lifetime prison sentences and that the U.S. Supreme Court specifically permitted life sentences for juveniles in murder cases.  Buchheim argued there is little difference whether the punishment is selected or required by state law.  "It seems to me to be the same thing — a mandatory life without parole sentence or a sentence of life without parole."...

Besides mandatory life sentences, the Missouri Supreme Court also was considering the constitutionality of the state's system for deciding whether juveniles should be prosecuted as adults.

Under Missouri law, juveniles are handled by special courts that focus on improving behavior and are not treated like criminal cases.  Children as young as 12, however, can be charged with a felony as an adult depending on the circumstances of the case.  A judge decides whether the defendant should be prosecuted as a juvenile or adult.

Smith argued Wednesday that decision should be made by a jury because the decision significantly affects the possible punishment.  The attorney general's office contends that a judge can decide whether a juvenile should be charged as an adult because juries only are required to decide the facts that affect criminal penalties.

Knowledgeable readers should recall that the Missouri Supreme Court was the first to decide a few years ago that all juve killers should be categorially prohibited from facing the death penalty, a decision that was affirmed by the Supreme Court in its 2005 Roperruling. It will be interesting to see if the same court might become a pace-setting in these other juve sentencing contexts.

New Mexico Supreme Court rejects Apprendi/Blakely challenge to judicial findings for enhanced juve sentencing

As detailed in this brief local AP article, the New Mexico Supreme Court "has ruled it's constitutional for a judge to determine whether juvenile offenders can be sentenced as adults for certain violent crimes." Here are the basics:

The justices issued a 4-1 ruling on Tuesday overturning a 2009 decision by the state Court of Appeals, which held that a jury rather than a judge should make the sentencing decision.  Justice Edward Chavez dissented, saying juvenile offenders are entitled to the same constitutional jury protections given to adults.

At issue is a sentencing procedure for "youthful offenders" --- those 14 to 18 years old found guilty of violent felonies, including second-degree murder and robbery.  Judges can impose adult sentences only if they determine an offender is not amenable to treatment in the juvenile justice system.

I have not yet been able to find a copy of this ruling on-line, but I will post it when I do.  Depending on the particulars, this case might serve as an interesting vehicle for taking a long-simmering, and quite interesting, post-Apprendi-Blakely issue up to the U.S. Supreme Court.

UPDATE: The full opinion from the NM Supreme Court is now available at this link.

En banc Second Circuit rejects Apprendi challenge to NY persistent felony statute

It has been quite some time since Sixth Amendment fans have had a big, split Apprendi/Blakely opinion to chew on.  Today the Second Circuit has filled the void with a big, split en banc ruling in Portalatin v. Graham, 07-1599 (2d Cir. Oct. 18, 2010) (available here).  Here is how the majority opinion (per Judge Wesley) gets started:

Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York’s persistent felony offender statute, N.Y. Penal Law § 70.10.  Each petitioned for a writ of habeas corpus on the ground that the New York courts engaged in an unreasonable application of clearly established federal law in affirming their sentences.  Specifically, they argue that the Sixth Amendment guarantee of the right to an impartial jury, as construed by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, proscribes the long-used sentencing procedure in New York that results in judicially enhanced sentences for certain recidivist offenders.

In the case of petitioner Portalatin, the United States District Court for the Eastern District of New York agreed, issuing a writ of habeas corpus from which the State now appeals. See Portalatin v. Graham, 478 F. Supp. 2d 385, 386 (E.D.N.Y. 2007) (Gleeson, J.). In the cases of petitioners Phillips and Morris, the United States District Court for the Southern District of New York separately declined to issue such writs. See Phillips v. Artus, No. 05 Civ. 7974, 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.). Petitioners appealed.

In a consolidated appeal, a panel of this Court concluded that New York’s persistent felony offender sentencing scheme violates the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010).

A majority of judges in active service then called for this rehearing en banc. The Court now holds that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions. Accordingly, the grant of the writ to Portalatin is reversed, and the denials of the writ to Phillips and Morris are affirmed.

Here is a key passage from the start of Judge Winter's dissent:

My colleagues rely heavily upon AEDPA deference but identify only one constitutional argument dispositive of the claims of all petitioners -- regarding the applicable maximum sentences for Apprendi purposes -- and that one has been specifically rejected by the Supreme Court in Cunningham v. California, 549 U.S. 270 (2009) and Blakely v. Washington, 542 U.S. 296 (2004).  Except for that discussion, my colleagues’ opinion never responds directly to petitioners’ claims and proffers no other identifiable constitutional theory to which AEDPA deference can be given.

We can all be virtually certain that one or more of the losing NY defendants in this case will appeal to the US Supreme Court. Less clear is whether the current Justices are interested in another round of Apprendi/Blakely squabbling. I would not be suprised if new Justices Alito and Sotomayor have an interest in sharing their perspectives on the reach of Apprendi/Blakely, but I also would not be surprised if most of the other Justices are content to take a pass.

Interesting split Sixth Circuit ruling on Blakely-based habeas action from Ohio

Hard-core Blakely fans and/or hard-core habeas fans will want to be sure to check out today's work by a split Sixth Circuit today in Cvijetinovic v. Eberlin, No. 08-3629 (6th Cir. Aug. 23, 2010) (available here). Here is how the majority opinion in Cvijetinovic gets started:

Warden Michelle Eberlin appeals the district court’s order conditionally granting Ohio prisoner Alexsandar Cvijetinovic’s petition for a writ of habeas corpus.  In the petition, Cvijetinovic claimed that his presumptive sentence was enhanced on the basis of judge-found facts, a practice forbidden by the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004).  Though it determined that Cvijetinovic’s Blakely claim was procedurally defaulted, the district court granted relief, holding that he had established cause and prejudice.  The district court’s conclusion with respect to cause was premised on the notion that, at the time of his default, the legal basis for Cvijetinovic’s claim was not reasonably available.  However, the principle at the heart of Blakely had already been articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), which spawned myriad Blakely-type claims in the months preceding Cvijetinovic’s appeal.  We therefore reverse.

Here is how the dissent by Judge Keith in Cvijetinovic gets started:

The majority’s interpretation of Engle v. Isaac, 456 U.S. 107 (1982), in line with Eleventh Circuit precedent, would require defense counsel to anticipate and articulate constitutional arguments that are contrary to controlling Supreme Court precedent.  See, e.g., Pitts v. Cook, 923 F.2d 1568, 1571 (11th Cir. 1991).  This reading is not only unfounded but also poses worrying policy concerns.  Because counsel’s failure to articulate a Blakely claim prior to Blakely, itself, constitutes sufficient cause to excuse procedural default, I respectfully dissent.

"2,500 cons could get 'spring' break"

The title of this post is the headline of this New York Post article discussing the possible consequences of the Second Circuit's important ruling earlier this week that declared unconstitutional New York state's Persistent Felony Offender sentencing law (basics here).  Here's more:

The cell doors aren't being sprung open just yet -- but as many as 2,500 career criminals statewide could challenge their lengthy prison sentences because of a controversial federal court ruling. The ruling effectively killed a popular "three strikes and you're out" provision of the criminal code that gave judges great leeway in sentencing habitual offenders to life in prison.

There were 2,467 inmates serving 15 years to life as "persistent felony offenders" as of Jan. 1, according to the state Department of Correction. Many of these felons could now request their sentences be overturned after the US 2nd Circuit Court of Appeals ruled Wednesday that the repeat-offender sentencing laws for nonviolent offenders is unconstitutional.

Of the 2,467 persistent felony offenders, just 183 are confirmed to be nonviolent. The remainder of the inmates are in a gray area, with mixed violent and nonviolent records that make it difficult to determine how many could take advantage of the ruling and get out early.

"Some of these guys are persistent violent felony offenders and will not be affected. Some of them may not be violent offenders," said Correction spokesman Erik Kriss. "It's hard to know whether all 2,284 would or wouldn't be [applicable]," he added.

Second Circuit rules NY Persistent Felony Offender law now clearly violates Blakely

Via a lengthy ruling today in Besser v. Walsh, No. 05-4375 (2d Cir. Mar. 31, 2010) (available here), a panel of the Second Circuit has declared unconstitution New York state's Persistent Felony Offender sentencing law.  Here is a key paragraph from the start of Judge Winter's opinion for the panel:

We hold that the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s PFO statute.  We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004).  Because Besser’s conviction became final before Blakely issued, the state court decisions upholding his conviction were neither contrary to nor an unreasonable application of clearly established federal law.  We therefore affirm the denial of the writ as to Besser.   However, because the relevant state court decisions upholding enhanced sentences for Phillips, Morris, Portalatin, and Washington were issued after Blakely, those decisions were not reasonable applications of clearly established law.  Nevertheless, we remand these cases to the district court for a determination of whether the error was harmless.

It will be very interesting to see if New York considers appealing this ruling to the full Second Circuit or to the US Supreme Court.  Any predictions, dear readers?

Sixth Circuit affirms habeas relief finding Ohio sentencing scheme Blakely problematic

The Sixth Circuit has an interesting little opinion today in a habeas case coming from the Ohio state courts involving a Blakely challange to an enhanced sentence. The ruling in Villagarcia v. Warden, Noble Correctional Inst., No. 07-3619 (6th Cir. Mar. 25, 2010) (available here), is not especially surprising in light of what is noted in a key footnote of the opinion:

We observe that the instant case presents the unusual fact situation wherein the Ohio Supreme Court has itself concluded that the analysis employed by the Ohio Court of Appeals in rejecting Villagarcia’s claim is contrary to and demonstrates a misunderstanding of Blakely.  The Ohio Supreme Court observed that the “Supreme Court of the United States has repeated its holding that ‘[if] a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact – no matter how the State labels it – must be found by a jury beyond a reasonable doubt.’” Foster, 845 N.E.2d at 489 (quoting Ring v. Arizona, 536 U.S. 584, 602 (2002), citing Apprendi, 530 U.S. at 482-83) (emphasis in original).

The Villagarcia opinion also includes an extended discussion of harmless error review in this sentencing context.

"Rethinking Crime — Again"

The title of this post is the headline of this fantastic new commentary on crime and punishment from John J. Di Iulio, Jr. appearing in the journal Democracy.  The piece is a must-read for anyone interesting in crime realities and punishment policies, and it includes a final big section recommending "Six Steps to Zero Prison Growth" that include getting rid of mandatory minimum sentencing terms and considering marijuana legalization.  And here is how the piece concludes:

America has long experienced unacceptable levels of crime, including predatory violence by and against our youth and young adults.  And there is no denying that, 16 years into a national crime drop, the levels remain unacceptable in absolute terms and higher than they were in the early 1960s.  But there are better ways to measure crime and better ways to meet that half-century-old crime challenge.  After growing at an average annual rate of 6.5 percent during the 1990s, the prison population has grown at an average annual rate of 1.8 percent since 2000.

But prison populations need not grow at all over the next decade if Washington policymakers act soon to usher in more humane and cost-effective crime policies.  Americans need not continue to purchase such safety as they enjoy by forsaking freedom for themselves and depriving it to others. We can instead reclaim for ourselves, for our children and grandchildren, and for the children and families of prisoners and ex-prisoners, such lost social and civic luxuries as unlocked front doors, lone late-night walks wherever you please, and everyday life lived among friends and fellow citizens in real American communities.  Call the new federal crime bill "The Zero Prison Growth, Youth Violence Prevention, and Compassionate Drug Policy Act of 2010."  And let the next, and best, crime drop in modern American history begin.

Brief Sixth Circuit opinion rejects Blakely challenge to Michigan sentencing system

This morning the Sixth Circuit issued a short opinion in Chontos v. Berguis, No. 08-1031 (6th Cir. Nov. 10, 2009) (available here), in which the panel concludes that Michigan's distinctive structured sentencing scheme does not have a Blakely problem.  I have taken the liberty of reprinting some critical comments about this ruling from an e-mail sent my way by a helpful reader:

As detailed in this article appearing now as Mandatory Sentencing Guidelines by Any Other Name: When 'Indeterminate Structured Sentencing' Violates Blakely v. Washington, 57 Drake L. Rev. 643 (2009), the issue is a lot more complicated than the Sixth Circuit panel assumed today, and deserves a lot more attention.  Michigan does not have an "indeterminate" sentencing scheme, at least not as the Supreme Court has used that term.  Further, Harris does not save the Michigan scheme because Michigan's mandatory guidelines regularly raise the ceiling on judges' discretion, not just the floor.  In short, Michigan's scheme doesn't deserve the free pass that the Sixth Circuit just handed out.

Might Apprendi be at risk with O'Brien cert grant?

In this post concerning the Supreme Court's grant of cert this week in US v. O'Brien, I reprinted the thoughtful notion by Kevin Reitz that the Harris mandatory minimum limit on the Apprendi might be subject to reversal in O'Brien.  But one commentor in that thread suggested that maybe the spirit might be moving the other way:

[T]he question presented in O'Brienis extremely broad.  So broad, I fear, that it could conceivably accommodate the overruling of Apprendi itself -- accommodate eliminating the constitutional distinction between elements and sentencing factors.

I have yet to see anyone raise this possibility: that Roberts, Kennedy, Breyer, and Alito voted to hear O'Brienbecause they are hoping to get Sotomayor on board the plane out of Apprendi-land.

This is somewhat fanciful and paranoid speculation, to be sure. But let's not forget Citizens United. I think overruling Apprendi is no less likely an outcome than overruling Harris.

Wow, that is some wild fanciful and paranoid speculation, especially given that Chief Justice Roberts seem to have some affinity for Apprendi-land as evidenced by his votes in Cunningham and Ice.  In addition, I would be very surprised to see the Solicitor General or anyone else actively advocate overruling Apprendi anytime soon.  Moreover, Justice Stevens has said that he would like to see Harris overruled, and so I think he will likely be working harder this (last?) term to extend Apprendi and will not take kindly to any move to undo his efforts there.

That all said, all these comments usefully highlight is the unsteady and uncertain status of all aspects of the entire Apprendi-Blakely-Booker jurisprudence, and O'Brien may thus be especially important for giving us an update on all the current Justices' take on this crazy-mixed-up Sixth Amendment stuff.

SCOTUS Ice ruling undercuts Ohio defendant's habeas claim

The Sixth Circuit issued an intriguing little habeas ruling today in Evans v. Hudson, No. 08-3717 (6th Cir. Aug. 3, 2009) (available here).  Here is how it starts:

Respondent-Appellant Stuart Hudson (“Hudson”), the warden of Mansfield Correctional Institution, appeals the district court’s grant of a conditional writ of habeas corpus to Petitioner-Appellee Glen Evans (“Evans”), requiring the state of Ohio to resentence Evans within 90 days or release him. Hudson contends that the district court erred in concluding that Evans received ineffective assistance of appellate counsel because appellate counsel failed to raise, during Evans’s direct appeal, a claim under Blakely v. Washington, 542 U.S. 296 (2004), regarding Evans’s sentence to consecutive terms of imprisonment. For the reasons discussed below involving the Supreme Court’s recent decision in Oregon v. Ice, — U.S. —, 129 S. Ct. 711 (2009), we REVERSE the district court’s grant of habeas relief.

"Mandatory Sentencing Guidelines by Any Other Name: When 'Indeterminate Structured Sentencing' Violates Blakely v. Washington"

The title of this post is the title of this new article available via SSRN by Bradley Hall.  Here is the abstract:

While striking down Washington's mandatory sentencing guidelines scheme in Blakely v. Washington, the Supreme Court made clear that '[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment . . .’ and the judge exceeds his proper authority.'  Conversely, the Court approved of sentencing schemes that do not employ mandatory sentencing guidelines based on judicial fact-finding, but instead vest judges with full sentencing authority at the moment of conviction, i.e., schemes in which judge-found facts are not 'essential to the punishment.'

The Court imprecisely referred to these unproblematic schemes, however, as 'indeterminate,' apparently borrowing from another characteristic common to the nonguideline sentencing schemes that were widespread prior to the 1980s: the idea that a defendant’s actual time in custody is not “determined” solely by the sentencing judge, but depends in part upon nonjudicial factors, typically an executive branch parole board.

A careful examination of its earlier precedents reveals that the Supreme Court has never been concerned with the existence of a parole board when it has used the term 'indeterminate.'  Rather, the Court’s sole concern has been whether a sentencing scheme employs mandatory sentencing guidelines that narrow a judge’s sentencing discretion.

Buoyed by the Supreme Court’s acceptance of 'indeterminate sentencing' in an otherwise confusing post-Blakely landscape, but without the least bit of thought as to what the Court actually meant by the term, some state courts have found that any sentencing regime employing a parole board, and therefore meeting the dictionary definition of 'indeterminate,' withstands constitutional scrutiny.  The Michigan and Pennsylvania courts have led the way.  Those states employ what Steven Chanenson has aptly called 'Indeterminate Structured Sentencing' (ISS) schemes because they include both a parole component (they are 'indeterminate') and a sentencing guidelines component (they are 'structured').

In upholding these schemes, the state courts’ primary concern has been the 'indeterminate' side of this equation, but this Article argues that it is the form of the 'structure,' rather than the presence of a parole board, that governs the Blakely analysis.  Specifically, when indeterminate (parolable) sentencing involves mandatory sentencing guidelines, as in Michigan, it runs afoul of Blakely.  Although a sentence in Michigan takes the form of a parolable range, leaving an additional layer of discretion to a parole board, the range often increases in severity based on judge-found facts. Thus, judges are regularly required to 'inflict punishment that the jury’s verdict alone does not allow . . . .'

Ohio Supreme Court blesses retoractive application of its response to Blakely

As detailed  this official summary, the "Ohio Supreme Court on Tuesday upheld the constitutionality of a criminal sentencing decision it made in 2006, rebuffing the claims of a defendant who argued the ruling violated his rights to a jury trial and due process."  The full ruling in Ohio v. Elmore, No. 2009-Ohio-3478 (Ohio July 28, 2009), is available at this link, and here is how the official summary starts:

The Supreme Court of Ohio ruled today that the resentencing of criminal offenders pursuant to the Court’s February 27, 2006  decision in State v. Foster for crimes committed before that date does not violate offenders’ Sixth Amendment right to a jury trial or their rights under the Ex Post Facto or Due Process clauses of the U.S. Constitution.

In a 7-0 decision authored by Justice Judith Ann Lanzinger, the Court also held that a trial court resentencing an offender pursuant to Foster is not required to impose the minimum prison term for each offense for which the defendant  was convicted, and has discretion to order that  sentences for multiple convictions be served either concurrently (at the same time) or consecutively (one after the other).

In this local article concerning the ruling, the defendant's lawyer indicates he is eager to appeal this ruling to the US Supreme Court:

Keith Yeazel, Elmore's attorney, said he will recommend to his client that he appeal the Ohio Supreme Court's decision to the U.S. Supreme Court. Yeazel said the U.S. Supreme Court has found that no more than the minimum sentence can be applied unless additional evidence is considered.

He also said Ohio law directs judges to issue concurrent sentences except under certain conditions."The Ohio Supreme Court has decided that they don't want to do what the Ohio General Assembly said they should do," Yeazel said.

Alaska Supreme Court rejects Blakely retroactivity claim

Thanks to a helpful reader, I learned that the Alaska Supreme Court today issued a big ruling reversing a lower court determination that Blakely should be given retroactive application.  Here is how the opinion in Alaska v. Smart, No. S-12493 (Ak. Feb. 27, 2009) (available here) gets started:

The question presented in these two cases is whether the right to a jury trial announced in Blakely v. Washington should be retroactively applied to two state defendants, Troy Smart and Henry Douglas, whose sentences were final before June 24, 2004, when Blakely was decided.  Blakely requires that any fact — except a fact admitted by the defendant or the fact of a prior conviction — necessary to increase a sentence above the statutory presumptive maximum be proved to a jury beyond a reasonable doubt.  We decline to give Blakely full retroactivity.  We conclude that the purpose of Blakely does not raise serious questions about the accuracy of past sentences and must be weighed against the state’s reliance on the old rule for over twenty years and the administrative burden of implementing the new rule retroactively.  We therefore reverse the rulings of the court of appeals in these two cases and remand.

New York's highest court rejects again Sixth Amendment challenge to its persistent felony offfender law

A helpful reader alerted me to a new opinion from the New York Court of Appeals, which turns down yet again a Sixth Amendment attack on New York's persistent felony offender sentencing scheme.  Here is how the unanimous opinion in NY v. Quinones, No. 14 (N.Y. Feb. 24, 2009) (available here), gets started:

This appeal presents another Apprendi challenge to New York’s discretionary persistent felony offender sentencing scheme. The primary issue before us is whether, in light of Cunningham v California (549 US 270 [2007]), this sentencing scheme violates Apprendi and defendant’s due process and Sixth Amendment rights.  We again uphold the constitutionality of New York’s discretionary persistent felony offender sentencing scheme and further hold that defendant’s constitutional rights were not violated.

Significantly, this latest Quinones ruling from the New York Court of Appeals does not address or even mention the federal habeas ruling in Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here), in which EDNY District Judge John Gleeson essentially disagreed with a New York's state court decision that the state's discretionary persistent felony offender statute is constitutionally sound (discussed here). 

In Portalatin, Judge Gleeson concluded that the Supreme Court's work in Cunningham confirmed the unconstitutionality of New York's law.  But in Quinones the New York Court of Appeals reads Cunningham and Ice to confirm its prior conclusion that there are no constitutional problems with New York's sentencing structure.  Assuming the defendant in Quinones seeks cert., it is interesting to speculate as to whether this state/federal split of authority might lead the Justices to make yet another trip into the crazy mixed-up world that is Apprendi-land.

Notable Ohio Supreme Court ruling on constitutionality of "blended" juve sentences

As detailed in this official press release, today the Ohio Supreme Court issued a notable discussion on the constitutionality of the state's use of "blended" sentences for juvenile offenders convicted of serious crimes.  Here are the basics:

The Supreme Court of Ohio ruled today that in cases where a juvenile is charged as a “serious youthful offender,” a section of state law authorizing a juvenile judge, rather than a jury, to consider certain factors in determining whether to impose a “blended” juvenile and adult sentence does not violate the defendant’s jury trial rights under the U.S. or Ohio constitutions.

In a 7-0 decision authored by Justice Paul E. Pfeifer, the Court also held that, in serious youthful offender cases where sentencing took place prior to this Court’s 2006 decision in State v. Foster, constitutional jury trial rights do not apply to findings made by a juvenile court under Ohio’s adult felony sentencing statutes in imposing the adult portion of a blended sentence.

Under R.C. 2152.13, an Ohio juvenile judge sentencing a “serious youthful offender” (a minor convicted of an offense that would constitute a violent felony if committed by an adult) is authorized to make factual findings to determine whether the defendant should receive a “blended” sentence that includes not only a normal juvenile sentence but also a stayed term of adult imprisonment....

Writing for the Court in today’s decision, Justice Pfeifer pointed to the U.S. Supreme Court’s ruling in McKeiver v. Pennsylvania (1971) and this Court’s holding in In re Agler (1969) that because the fundamental objectives of juvenile proceedings are different than those of an adult criminal prosecution, juvenile offenders do not have a constitutional right to have their cases decided by a jury. He noted, however, that because juveniles like D.H. who are charged under Ohio’s serious youthful offender statute face the potential imposition of an adult sentence, this case differed in an important respect from the cases of the juveniles in McKeiver and Agler, and thus merited separate consideration.

By giving minors charged as serious youthful offenders the right to have their guilt or innocence determined by a jury, but vesting juvenile judges with discretion to impose an appropriate sentence, Justice Pfeifer found that Ohio’s statutory scheme balances the due process rights of defendants with the state’s strong public interest in rehabilitating delinquent children.

The State v. D.H., No. 2009-Ohio-9, can be accessed at this link.  Because Ohio's "blended" sentencing law is a unique creation, I am not sure this case had broad enough appeal to garner Supreme Court attention if DH were to appeal.  Nevertheless, these are really interesting constitutional issues that ought to interest not only sentencing fans, but also anyone concerned about juvenile justice. 

Tennessee Supreme Court turns back Blakely challenges to consecutive sentencing

The Tennessee Supreme Court today in State v. Allen (Tenn. June 24, 2008) (available here), turns back two defendants' argument that Apprendi and Blakely limit judicial fact-finding to support the imposition of consecutive sentences.  Here is a key paragraph at the start of the Court's analysis:

In Defendant Lumpkin’s case, the trial court ordered partial consecutive service after finding Lumpkin to be a “dangerous offender.” See Tenn. Code Ann. § 40-35-115(b)(4). In Defendant Allen’s case, the trial court ordered partial consecutive service after finding Allen to be “an offender whose record of criminal activity is extensive” and a “dangerous offender.”  Id. § 40-35-115(b)(2), (4).  Both Defendants argue that the imposition of consecutive sentences on the basis of these judicially-determined facts violates their federal constitutional rights as explicated in Apprendi and Blakely.  The Defendants point to the Supreme Court’s statement in Blakely that “[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment’ and the judge exceeds his proper authority.” Blakely, 542 U.S. at 304 (citation omitted).  The Defendants contend (1) that their effective terms of service, arrived at by adding together their consecutive sentences for separate offenses, is the punishment on which we must focus and (2) that the cumulative punishment they are facing could not have been imposed absent post verdict factual findings by the trial court; ergo, in violation of Blakely’s holding. As Defendant Lumpkin’s counsel puts it, “[t]he facts necessary to sustain the imposition of consecutive sentencing in this case are not included within the jury’s verdict of guilt of the individual offenses.”  As set forth below, however, we are persuaded that neither Apprendi nor Blakely apply to a trial court’s post-verdict findings and decisions about the manner in which a defendant serves his discrete sentences for multiple offenses.

The Tennessee Supreme Court acknowledges that the US Supreme Court will be taking up this issue next Term in Oregon v. Ice, and the Allen opinion provides a nice primer on the debate that the SCOTUS Justices will have sort through.

Hawai'i Supreme Court okays state's Blakely fix

Thanks to this post at How Appealing, I saw that the Hawai'i Supreme Court, in a lengthy split ruling, approved the constitutionality of the state's recent Blakely fix legislation.  This article from the Honolulu Advertiser describes the basics of the ruling:

The Hawai'i Supreme Court has approved a new state law, passed by the Legislature in special session last year, that changes procedures for imposition of "enhanced" sentences of criminals identified as dangers to the community. In finding the law constitutional, however, the high court said prosecutors must notify such defendants at the outset of such a case that enhanced sentencing will be pursued if they are convicted.

In a 72-page, 3-2 decision written by Justice Steven Levinson, the court also approved provisions of the law that allows it to be applied retroactively to convicts who have received enhanced sentences. Hawai'i Attorney General Mark Bennett, who argued the constitutionality of the law before the high court, said "there are good and bad things" in the decision.

Thanks also to How Appealing, here are links to the ruling, in the form of a majority opinion; an opinion concurring and dissenting; and a dissenting opinion.

Arizona Supeme Court extends jury trial rights to misdemeanors leading to sex offender registration

In a very interesting opinion that covers a lot of very interesting modern criminal justice issues, the Arizona Supreme Court yesterday in Fushek v. State, No. CV-07-0251-PR (Ariz. Feb. 15, 2008), unanimously held that the Arizona state constitution requires a jury trial for misdemeanor charges that could lead to sex offender registration.  Here is the opinion's key conclusion:

[W]e conclude that the potential of sex offender registration reflects a legislative determination that Fushek has been charged with serious crimes.  As the Supreme Court noted in Blanton, “[t]he judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task.” 489 U.S. at 541-42....  We defer to the legislature’s determination that misdemeanor crimes involving sexual motivation are serious offenses and hold that when a special allegation of sexual motivation exposes a defendant to the possibility of sex offender registration, Article 2, Section 24 of our Constitution entitles the defendant to a trial by jury.

Download fushek_opinion.pdf

Oregon AG seeks cert on Blakely's applicability

As detailed in this post, a few months ago the Oregon Supreme Court held in State v. Ice, No. S52248 (Ore. Oct. 11, 2007) (available here), that the "federal constitution requires that a jury, rather than a judge, find the facts that Oregon law requires be present before a judge can impose consecutive sentences."  The Attorney General of Oregon does not agree and is now seeking Supreme Court review of this question:

Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), is violated by the imposition of consecutive sentences based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.

Oregon's petition for cert with this question can be downloaded below, and here are part of the "reasons for granting" section of the petition:

This Court should grant the petition for writ of certiorari and review this case for two reasons. First, the Oregon Supreme Court opinion deepens the significant split among the state courts that have considered this recurring issue of federal constitutional law....

Second, the Oregon Supreme Court’s holding is an unwarranted extension of Apprendi and Blakely beyond what this Court’s reasoning supports.  This Court has explained the Apprendi rule as a non-subjective means for determining the elements of an offense.  By extending the jury-trial requirement to establishing how otherwise-lawful sentences are served, the Oregon Supreme Court has gone well beyond the due-process concerns that require states to prove each element of an offense to a jury beyond a reasonable doubt.

Download ice_pet. for Cert.pdf

After Blakely, the more things change, the more...

they seem to stay the same. Or at least that's what appears to be the reality in Tennessee.  A helpful reader sent me this link to the latest careful research providing a post-Blakely analysis of Tennessee sentencing data.  As the reader explained: "Nothing earth shattering. Just a little more confident that sentencing practices haven't changed that much with advisory guidelines."

Thoughtful Blakely opinion from Arizona Supreme Court

With all the on-going federal sentencing stories these days, I cannot keep track of all the notable Blakely issues still being worked out by state courts. Fortunately, a friend of the blog alerted me to this new opinion from the Arizona Supreme Court in State v. Price (available here) which this opening paragraph effectively previews:

We accepted review to determine whether the defendant's sentence was aggravated in violation of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Blakely v. Washington, 542 U.S. 296, 305 (2004), which hold that the Sixth Amendment affords a right to have a jury, rather than a judge, determine any fact, other than a prior conviction, that increases a defendant’s statutory maximum sentence. The trial court imposed an aggravated sentence based on facts that the State now concedes were not found in compliance with Apprendi and Blakely.  We hold that the case must be remanded for resentencing and reject the State’s suggestion that, as a reviewing court, we should find other aggravating facts to uphold the flawed sentence.

In addition to a thoughtful majority opinion, Judge Hurwitz has a strong concurrence that starts to crack another tough Blakely nut, but is "content to leave final resolution of this conundrum to another day."