Blakely in the States(Updated through January 12)

General............................................................................................................................................1Sentencing year in review............................................................................................................1A range of sentencing stories.......................................................................................................3State courts gone Blakely wild.....................................................................................................3In re state Blakely interpretations................................................................................................4Seeking help on Blakely in the states...........................................................................................4Another view of waiting from the states......................................................................................5The impact of delayed Booker and Fanfan on the states.............................................................6Apprendi, Blakely and federalism................................................................................................6Lots to do while we wait..............................................................................................................7Tracking Blakely in the states......................................................................................................7Blakely analysis and insights for ALI's sentencing project.........................................................8So many state Blakely cases, so little time..................................................................................9The Vera Institute Speaks Again!!..............................................................................................9Dollars and Sentencing..............................................................................................................10The next big Blakely issue: the prior conviction exception......................................................10Spanning the States....................................................................................................................11Week in Review.........................................................................................................................13State of the States.......................................................................................................................13The Vera Institute Speaks!!.......................................................................................................14Will state sentencing commissions do better?...........................................................................15Tracking Blakely developments in the states.............................................................................15Deciphering Blakely for the states.............................................................................................16

Alaska............................................................................................................................................16Interesting state Blakely reports.................................................................................................16

Arizona..........................................................................................................................................17A range of sentencing stories.....................................................................................................17Blakely cases keep rolling along................................................................................................17State Blakely stories in the newspapers.....................................................................................18Blakely federalism in action.......................................................................................................19Still more state Blakely rulings of note......................................................................................19Further narrowing of Blakely's reach in the states.....................................................................20The Blakely earthquake hits Arizona.........................................................................................21Arizona effort to keep Blakely in check....................................................................................22Covering Blakely in the states....................................................................................................22Still more interesting state decisions.........................................................................................24More interesting state developments nationwide......................................................................24Blakely and victims’ rights........................................................................................................25Blakely developments in Arizona..............................................................................................26More state wisdom.....................................................................................................................27

California......................................................................................................................................27State Blakely cases ring in the new year....................................................................................27

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More holiday season state Blakely rulings.................................................................................28December 27, 2004 at 10:31 PM...............................................................................................28State Blakely stories in the newspapers.....................................................................................28December 11, 2004 at 06:46 AM..............................................................................................28So many more state Blakely rulings...........................................................................................28November 18, 2004 at 09:25 AM..............................................................................................29Nationwide Blakely developments in the states.........................................................................29The power of positive thinking?................................................................................................30Three Strikes meets Blakely/Apprendi.......................................................................................30California hits triple digits!........................................................................................................31California's messy Blakely landslide.........................................................................................31Close enough for government work..........................................................................................31Now, the more intersting story..................................................................................................32Still more from California.........................................................................................................32September 29, 2004 at 05:35 PM..............................................................................................33More California aftershocks......................................................................................................33So many California cases, so little time.....................................................................................34More interesting state developments nationwide......................................................................34Big Blakely rulings from the states............................................................................................35Limiting the impact of Blakely in California.............................................................................37More thoughtful California analysis..........................................................................................38First official Blakely reversal in California...............................................................................38Consecutive questions about consecutive sentencing................................................................39Blakely news from California....................................................................................................39Second Thoughts in California’s Fifth District.........................................................................40Blakely-coping, California style................................................................................................41Another fascinating Blakely front..............................................................................................42More Blakely insights for Californians......................................................................................42California dreaming…...............................................................................................................43Action by the Supreme Court (of California)............................................................................43More Blakely resources for Californians and others..................................................................44

Colorado.......................................................................................................................................44Another notable Blakely case in Colorado.................................................................................44More noteworthy state Blakely developments...........................................................................45More Blakely news from Colorado............................................................................................45More big Blakely news from Colorado......................................................................................46Mile High Blakely......................................................................................................................46

Delaware.......................................................................................................................................47So many more state Blakely rulings...........................................................................................47Nationwide Blakely developments in the states.........................................................................48

Florida...........................................................................................................................................48Big Blakely news from sunny states..........................................................................................48Coast to Coast Blakely developments in the states....................................................................49

Hawaii...........................................................................................................................................50Blakely's Hawaiian punch..........................................................................................................50

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Big Blakely news from sunny states..........................................................................................50Idaho.............................................................................................................................................51

Blakely not a problem in Idaho..................................................................................................51Illinois............................................................................................................................................52

State Blakely cases ring in the new year....................................................................................52Exploring the nature of Blakely error in Illinois........................................................................52

Indiana..........................................................................................................................................53Big reports from Indiana and Minnesota...................................................................................53The state of Blakely in various states.........................................................................................54More holiday season state Blakely rulings.................................................................................54December 27, 2004 at 10:31 PM...............................................................................................54Everything you wanted to know about Blakely in Indiana........................................................55Fascinating "prior conviction" case from Indiana.....................................................................55More interesting state appellate Blakely decisions....................................................................56So many more state Blakely rulings...........................................................................................56Still more state Blakely rulings of note......................................................................................57Noteworthy news from the midwest..........................................................................................57Discussing Blakely in Indiana....................................................................................................58Nationwide Blakely developments in the states.........................................................................58Friends in high places................................................................................................................59More noteworthy state Blakely developments...........................................................................59Further narrowing of Blakely's reach in the states.....................................................................60For still more on Blakely............................................................................................................60Still more Blakely news from Indiana.......................................................................................61More on Blakely in Indiana........................................................................................................61Hoosier handling of Blakely issues............................................................................................61Re-stating the state of the states.................................................................................................62Federal and state news in Indiana..............................................................................................62More state Blakely news in Minnesota and elsewhere..............................................................63

Kansas...........................................................................................................................................64A range of sentencing stories.....................................................................................................64Spanning the States....................................................................................................................64Can the Kansas system work for the feds?................................................................................66Reports about Blakely from the field.........................................................................................66

Maine............................................................................................................................................67Interesting state Blakely news....................................................................................................67

Massachusetts...............................................................................................................................67Still more interesting state decisions.........................................................................................67

Michigan.......................................................................................................................................68Dissention in the Michigan ranks?............................................................................................68Blakely back in the news............................................................................................................68The Michigan Supreme Court speaks!!.....................................................................................69

Minnesota.....................................................................................................................................70Blakely in the states keeps chugging along................................................................................70January 12, 2005 at 01:29 AM..................................................................................................70

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Big reports from Indiana and Minnesota...................................................................................70More Blakely state reports.........................................................................................................71Blakely cases keep rolling along................................................................................................71Interesting state Blakely reports.................................................................................................72Thoughtful coverage of major sentencing issues.......................................................................74Lots of Blakely doings in Minnesota.........................................................................................75Nationwide Blakely developments in the states.........................................................................75More notable Blakely cases from Minnesota.............................................................................76Minnesota working on offense/offender idea............................................................................77The Minnesota courts officially address Blakely.......................................................................79Now, the more intersting story..................................................................................................79October 5, 2004 at 06:19 PM.....................................................................................................80So nice to have data...................................................................................................................80More interesting state developments nationwide......................................................................81Big Blakely rulings from the states............................................................................................82More Minnesota remands..........................................................................................................83Spanning the States....................................................................................................................84Minnesota’s Commission Speaks..............................................................................................85Will state sentencing commissions do better?...........................................................................86More state Blakely news in Minnesota and elsewhere..............................................................86Tracking Blakely developments in the states............................................................................87Minnesota’s a leader again........................................................................................................87

Missouri........................................................................................................................................88Interesting state Blakely reports.................................................................................................88

New Jersey....................................................................................................................................88State Blakely cases ring in the new year....................................................................................88Sentencing Commission work in NJ..........................................................................................89Another state Supreme Court taking up Blakely........................................................................89Blakely federalism in action.......................................................................................................90So many more state Blakely rulings...........................................................................................91Light weekend reading..............................................................................................................92The Blakely earthquake hits New Jersey...................................................................................92

New Mexico..................................................................................................................................93Will state sentencing commissions do better?...........................................................................93

New York......................................................................................................................................93Consecutive problems?..............................................................................................................93

North Carolina.............................................................................................................................94The state of Blakely in various states.........................................................................................94Blakely-ization plans in North Carolina....................................................................................95Responding to Blakely in North Carolina..................................................................................96Now, the more intersting story..................................................................................................96The Blakely earthquake hits North Carolina..............................................................................97Word on the Street in NC..........................................................................................................97Tracking Blakely developments in the states.............................................................................98

North Dakota................................................................................................................................99

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Blakely back in the news............................................................................................................99Ohio...............................................................................................................................................99

Interesting state Blakely reports................................................................................................99More Blakely state reports.......................................................................................................100A peculiar (but important) Blakely ruling in Ohio...................................................................100More Blakely developments in Ohio.......................................................................................101So many more state Blakely rulings.........................................................................................102The intricacies of Blakely in Ohio...........................................................................................103Coming insights from the OACDL..........................................................................................103The state of state sentencing in Ohio.......................................................................................104More Ohio Blakely reversals...................................................................................................104Still more interesting state decisions.......................................................................................104Insights about Blakely’s impact in Ohio..................................................................................105Ohio v. Scheer: a Rosetta Stone for sentencing reform?.........................................................106Another interesting Ohio case.................................................................................................107Formalism meets functionality: An Ohio case study...............................................................108Blakely’s impact in Ohio.........................................................................................................109

Oregon........................................................................................................................................111Interesting state Blakely reports...............................................................................................111Oregon Supreme Court decides Dilts (and ducks issues)........................................................112Thoughtful coverage of major sentencing issues.....................................................................113An Oregon Blakely trifecta......................................................................................................114Still more state Blakely rulings of note....................................................................................114Oregon gives Blakely broad reading........................................................................................115Juvenile convictions and the “prior conviction” exception.....................................................115Major Blakely ruling in Oregon...............................................................................................116Dollars and Sentencing............................................................................................................117Blakely news from Oregon......................................................................................................117

Pennsylvania...............................................................................................................................118Three Strikes meets Blakely/Apprendi.....................................................................................118Keys to avoiding Blakely in the Keystone state.......................................................................119Blakely’s (lack of) impact in Pennsylvania.............................................................................119

South Carolina...........................................................................................................................120Another possible Blakely front and great dicta........................................................................120

Tennessee....................................................................................................................................121More holiday season state Blakely rulings...............................................................................121December 27, 2004 at 10:31 PM.............................................................................................121Still more state Blakely rulings of note....................................................................................121Covering Blakely in the states..................................................................................................122Tennessee Blakely trouble.......................................................................................................123Close enough for government work........................................................................................124Interesting state Blakely news..................................................................................................125Big Blakely rulings from the states..........................................................................................125Tennessee’s functionality meets Blakely’s formalism.............................................................127Blakely back in the news..........................................................................................................128

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Grand Ole Blakely....................................................................................................................129I’m going to Graceland…........................................................................................................130Fascinating news from Tennessee...........................................................................................130More state Blakely news in Minnesota and elsewhere............................................................131Coast to Coast Blakely developments in the states..................................................................132

Texas...........................................................................................................................................132The state of Blakely in various states.......................................................................................132

Washington.................................................................................................................................133Blakely in the states keeps chugging along..............................................................................133January 12, 2005 at 01:29 AM................................................................................................133Interesting state Blakely reports...............................................................................................133State Blakely cases ring in the new year..................................................................................134More Blakely state reports.......................................................................................................135More holiday season state Blakely rulings...............................................................................135No double jeopardy worries in Washington............................................................................135So many more state Blakely rulings.........................................................................................136November 18, 2004 at 09:25 AM............................................................................................136The full Blakely in Washington state.......................................................................................136State of state Blakely appeals...................................................................................................137Confining Blakely's impact in its home state...........................................................................137Now, the more intersting story................................................................................................138Interesting Blakely views.........................................................................................................139A means for Supreme Court (re)consideration........................................................................139Blakely’s impact in the other Washington...............................................................................140

Wisconsin....................................................................................................................................141Thoughtful coverage of major sentencing issues.....................................................................141

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General

Sentencing year in reviewWith Christmas in the books, we now get all the Year in Review and Top Ten lists reflecting on the year about to be completed. Never one to shy away from fads, I will here present my own Top Ten list of sentencing developments for 2004 (along with one "non-development"). I will count down from 10 to 1, though everyone who frequents this blog knows what #1 is going to be. I encourage readers to use the comments to spotlight important events I may have overlooked and to otherwise dicker with my list.2004 Sentencing Non-DevelopmentLack of serious reforms to mandatory sentencing. Despite broad academic and judicial criticisms of mandatory sentencing provisions and recent state movements away from mandatories, the absence of reform was the bigger story in this arena this year. Though initially favored by the electorate, California voters rejected a proposition to limit the reach of the state's Three Strikes Law (background here and here); though federal District Judge Paul Cassell hinted about a major ruling in the Angelos case, he ultimately upheld the constitutionality of a severe mandatory federal sentence; though New York reformed its harsh Rockefeller drug laws, the limits of the changes was noted and lamented by those working for reform. And, of course, everyone is fearful, perhaps for good reason, that Congress will respond to Blakely/Booker by enacting a host of mandatory minimum sentencing provisions.Top Ten 2004 Sentencing Developments10. Remarkable rulings by federal district courts on unconstitutionality of the federal sentencing guidelines. From Judge Young's remarkable and foreshadowing pre-Blakely Green decision, to the immediate post-Blakely rulings of Judge Cassell in Croxford and Judge Goodwin in Shamblin, to Judge Panner's conclusion in Detwiler that the Feeney Amendment renders the federal system structurally unconstitutional, federal district judges impressively advanced and framed the legal debate over the federal guidelines' constitutionality.9. Celebrity sentencings. Though the cases were not high-profile for legal reasons, the capital sentencing of Scott Peterson, the prison time given to and now being served by Martha Stewart, the plea deals entered by former Governor John Rowland and football star Jamal Lewis, and the Blakely-ized trial of Enron defendants provided remarkable and valuable windows into the law and policy of capital and non-capital sentencing.8. Effective and powerful sentencing work by public policy groups. The ABA's release of its Kennedy Commission report and the VERA Institute's state Blakely analyses (here and here) are just the most tangible examples of all the great and important sentencing work being done by a range of public policy and public interest groups. And the work of the ABA and VERA and other groups — like the Death Penalty Information Center, The Sentencing Project, Families Against Mandatory Minimums, The Constitution Project, Watching Justice, American Law Institute — not only influenced sentencing law and policy in 2004, but also will have an impact (I hope) on 2005 developments.

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7. Remarkable rulings by state courts on unconstitutionality of state death penalty procedures. Kansas and New York, which in the mid-1990s enacted new death penalty laws, both had their capital sentencing procedures declared unconstitutional by their states' highest courts (highlights here). In addition to perhaps reflecting broader capital trends in 2004 (see item #2), these developments should set up interesting 2005 policy debates over the need for the death penalty (you can see the start of the debate here and here).6. Effective and powerful media coverage of sentencing stories. Though high-profile cases still received the most (excessive) attention, the Fourth Estate did important and influential work on a range of sentencing law and policy issues. On topics ranging from Blakely to the death penalty to truth in sentencng, I was consistently impressed (despite the ocassional error) by the reporting and analysis of sentencing stories from big outlets like the Wall Street Journal (examples here and here) and the New York Times (example here) and from little papers nationwide (examples from just this week are here and here).5. The US Supreme Court's death penalty actions (and activism). Though every year the Supreme Court has a number of capital cases, the Court's rigorous review and involvement in death cases this year rightly garnered lots of attention. And with 2005 to include a decision in Roper on the constitutionality of executing juvenile offenders (background here and here) and arguments in Medellin concerning the rights of foreign nationals on death row (background here), this story line is likely to continue to grow in the months ahead.4. The federal system's severe reaction to Blakely. Despite the Supreme Court's (weak) effort in a footnote to keep Blakely from being a federal sentencing story, no jurisdiction was more impacted by the Blakely earthquake. And watching the range of reactions to Blakely from all the actors and institutions in the federal system — from Congress, SCOTUS, the Justice Department, the USSC, district and circuit courts, practitioners and academics — has made for amazing drama for six months (and counting). Just thinking about all that has already transpired after a state ruling (Blakely) makes it hard to fully fathom what we will see after Booker and Fanfan finally get decided.3. The state systems' sensible reaction to Blakely. Despite the profound impact Blakely could have on so many state sentencing laws, the states have typically taken a thoughtful and cautious approach to dealing with the fallout from the Blakely earthquake. And watching the reactions to Blakely from state actors and institutions — from legislatures, courts, attorneys generals, practitioners and academics — has made for an amazing contrast with the (perhaps overheated) drama in the federal system. But how the states will be able to efficiently and effectively sort out all the uncertainties Blakely has created (especially since Booker and Fanfan may not provide much help) is also hard to fully fathom.2. The decline of death(?). Though the Peterson verdict might suggest otherwise, all other evidence in 2004 suggests the death penalty is dying a slow death. December marks the first execution-free month in more than a decade, and reductions in the number of death sentences and in the number of executions provide more statistical evidence to suggest the death penalty is on the decline in the United States. (This DPIC report covers this story from all the angles.)1. Blakely v. Washington. See this blog (not to mention items 10, 8, 6, 4, 3 above). 'Nuff said.December 26, 2004 at 11:59 AM

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A range of sentencing storiesThough all is calm and all is bright this holiday morning, the newspapers still have an array of sentencing stories that merit a quick post. (I also need a break from toy assembly.) So here is some sentencing news of note:

This story from Arizona reports on a state trial in a rape case which was bifurcated so that, a month after rendering a guilty verdict, a jury could consider Blakely aggravating factors.

This story from Kansas details why the state's coming legislative debate over capital punishment — which is necessary because of the Kansas Supreme Court's Marsh decision (discussed here, commentary here and here) — probably won't be limited to just fixing the procedural flaw that led the Court to strike down the state's death penalty law. The report notes that the incoming state Senate leader "expects an attempt from opponents of capital punishment to scuttle the law, though such an effort is not expected to succeed."

Finally, returning to the pardons story (covered here and here), the papers report that Governors in South Dakota and Vermont made this year an especially Merry Christmas for a few offenders.December 25, 2004 at 12:19 PM

State courts gone Blakely wildThe important Blakely rulings this week from the Minnesota Supreme Court in Shattuck (details here) and from the Oregon Supreme Court in Dilts (details here) are just one reflection of all the recent state Blakely activity. To twist my favorite lines from the all-time great movie Airplane!, "Looks like I picked the right weeks to stop tracking state Blakely cases." (Background here and here.)In the first two weeks of December, there were over 100 state intermediate appellate Blakely decisions appearing on-line. And on December 16 alone there were major Blakely rulings in no less than seven states: in addition to Shattuck from Minnesota and Dilts in Oregon, Arizona had State v. Gatliff, 2004 WL 2902551 (Ariz. App. Div. 1 Dec. 16, 2004), Colorado had People v. Barton, 2004 WL 2903510 (Colo. App. Dec. 16, 2004) (previously discussed here), Indiana had Berry v. State, 2004 WL 2903687 (Ind. App. Dec. 16, 2004), Washington had State v. Mabry, 2004 WL 2905239 (Wash. App. Div. 3 Dec. 16, 2004), and California had its standard daily complement of more than a half-dozen published and unpublished Blakely rulings.I think all the recent state Blakely activity, especially late last week, likely is partially a result of the non-arrival of Booker and Fanfan. The state courts now know they are going to have to wait at least another month before getting additional Blakely guidance from the US Supreme Court. Thus, even though they realize that, in the words of the Oregon Supreme Court, they "may be shooting at a moving target," these courts perhaps now feel compelled to render decisions in major Blakely cases rather than continue to wait and hope for the US Supreme Court to soon clear up some of the Blakely confusion.December 19, 2004 at 04:57 PM

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In re state Blakely interpretationsAs suggested in this recent post, I have largely given up trying to comprehensively track Blakely decisions coming from lower state courts. (Actually, as noted here, I gave up tracking the California caselaw weeks ago — there are now nearly 250 California state Blakely rulings on-line!) There are just too many opinions from too many states to follow all the Blakely state action: including the Oregon rulings noted here, there have been more than two dozen consequential lower state court Blakely rulings — coming from 10 different states — in the last week alone. I previously noted here that, as of October 16, a total 239 state Blakely cases were on-line via Westlaw; as of this morning, less than two months later, that total is up to 506.With the state Blakely caselaw starting to mature, most of the recent state rulings do not break major new ground. Nevertheless, they provide a rich view of all the different ways the Blakely earthquake is rumbling through the states. Moreover, even a quick review of some of these decisions spotlights how many Blakely questions — on issues ranging from admissions to retroactivity to the prior conviction exception — are in need of definite answers as soon as possible.The many intra-state disputes over interpretations of Blakely — see examples in Ohio and California — can and will, of course, first get resolved in state supreme court rulings. But, I think that, before too long, the US Supreme Court will have to get involved and resolve the (perhaps inevitable) inter-state disputes about key Blakely issues. These issues will surely be making their way into lower federal courts through federal habeas actions, and their definite resolution as soon as possible will be critical for the efficient administration of justice.Of late, I have been thinking that the Booker and Fanfan delay could be the result of the Court trying to speak broadly about Blakely's meaning (so as to provide additional guidance on all these issues), but having struggles with the exact language. But that may be just wishful thinking on my part as I worry about how many years and cases we might need to get all the Blakely kinks worked out. (After all, we are nearly 40 years since Miranda and 30+ years since Furman and we are still working to figure out these areas of criminal procedure jurisprudence.) December 9, 2004 at 10:00 AM

Seeking help on Blakely in the statesI have regularly highlighted the important and intriguing Blakely work being done in the state appellate courts — e.g.,November posts here and here and here and here and here detailed the breath and scope some of the major state Blakely rulings from last month alone. But, with so many state issues and opinions (and with all the time I am spending crying Wolf about the coming of Booker and \pard fs28 Fanfan), I have of late been unable to track effectively the still developing and always evolving story of Blakely in the state courts. I hope readers will continue to spotlight for me especially compelling and important state Blakely rulings in the days and weeks ahead. I would be especially grateful to get information and resources from anyone trying to track systematically state court Blakely rulings. As I noted here last week, a number of state supreme courts have Blakely cases in front of them and might be expecting (or at least hoping) additional guidance will come from Booker and Fanfan; it will be

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interesting to see if one consequence of the (eventual) ruling in Booker and Fanfan is a rapid-fire series of major state supreme court rulings.And, of course, state courts are only one of many state institutions forced to cope with the Blakely earthquake. I know the Minnesota Sentencing Guidelines Commission is having hearings in the coming days "to consider proposed modifications to the sentencing guidelines and commentary resulting from the recent U.S. Supreme Court decision Blakely v. Washington" (details here). And newspaper articles noted in posts here and here document that other state commissions and legislatures are, at a seemingly cautious pace, working through Blakely concerns. I highly encourage readers also to report on state legislative or policy developments on all state Blakely issues in the days and weeks ahead.As I have noted before, the federal sentencing story will surely grab all the headlines in the wake of a decision in Booker and Fanfan. But I find the state Blakely story engaging, critically important, and often far more encouraging than the federal story.December 7, 2004 at 03:24 PM

Another view of waiting from the statesAnne Skove of the National Center for State Courts was kind enough this morning to send along the latest Jur-E Bulletin from NCSC. (You can get free subscription information and access to back issues of this helpful resource here.) Supplementing some of the state sentencing issues I developed here, this latest bulletin has an interesting discussion (with helpful links) concerning the state of Blakely in the states:Booker, Fanfan, and ALIAfter the flurry of Blakely activity last July and October's First Monday fun with Booker and Fanfan, there has been little Blakely action. Now, a decision is imminent, but not as imminent as some had hoped. We will not hear anything until December 7 at the earliest, and do not plan to hold our breath.Even when we do hear, there will still (yes, STILL!) be unanswered jury sentencing questions, or perhaps new answers to seemingly settled questions, such as:

Retroactivity--whether and how much? Probation and parole issues Can consecutive sentences stand? How will truth-in-sentencing fare? Whither mandatory minimums? How broad is the right of notice? What's up with the USSC? and the most burning question: how might Hollywood resolve Blakely?

As always, Blakely fans can check Professor Berman's Blakely Blog (say that 5x fast). Don't forget Kevin Reitz's ALI work (or NCSC's memo, for that matter). December 3, 2004 at 10:33 AM

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The impact of delayed Booker and Fanfan on the statesOne reason I sincerely hope we won't have to wait until next year to see Booker and Fanfan (possibility noted here) is because state systems, as well as the federal system, are in desperate need of additional Blakely guidance as soon as possible. As well documented by the great two publications of the Vera Institute's State Sentencing and Corrections Program (available here and here), and also by the terrific memo by Kevin Reitz for the ALI (available here), it is extraordinarily difficult for state policy-makers — not to mention state courts and state litigants — to take stock of modern sentencing reforms in light of all the critical questions that Blakely raises but does not answer.Of course, Booker and Fanfan are federal cases and thus will not provide direct guidance to states. But the way in which the High Court describes (or refines or changes) the meaning and application of Blakely should provide (I hope) some help to all the state actors now forced to cope with Blakely. Indeed, I would suspect that the state supreme courts with Blakely cases in front of them — which I know includes at least California, Colorado, Indiana, Maine, Minnesota and Washington (and probably others) — would like the benefits of the High Court's wisdom in Booker and Fanfan before rendering their state-specific rulings about Blakely's impact in their jurisdictions. Moreover, state legislators and sentencing commission — both in states with structured sentencing now and also in states considering guideline reforms — certainly need more explanation of what judges can and can't do at sentencing before they can effectively and confidently more forward with planned sentencing reforms.December 1, 2004 at 12:02 PM

Apprendi, Blakely and federalismI have previously highlighted here and elsewhere that, despite all the attention paid to federal sentencing issues, the story of Blakely in the states may be even more interesting and compelling. In this post I spotlighted some deep federalism issues lurking in Booker and Fanfan and listening to the Indiana Supreme Court struggle with Blakely (details here) makes these issues feel quite real and tangible. Well timed, then, is my receipt of a finalized draft of an article, scheduled for publication in the Dec. 2004 issue of the Federal Sentencing Reporter, by Professor Peter (Bo) Rutledge entitled "Apprendi and Federalism." Here are some highlights of the article, which you can download below, drawn from the introduction and conclusion:

Since the emergence of the Apprendi majority and its newly minted (and evolving) constitutional limits on criminal punishment, many commentators have begun to address its implications for the horizontal relations between the branches of government – between legislators and courts, between judges and juries, and between judges and prosecutors. Less widely addressed, though equally (if not more) important, has been the Apprendi doctrine’s implications for vertical relations, particularly federalism....The Apprendi principle poses a challenge to justices, such as Justices Scalia and Thomas, who are committed to federalism principles. One might legitimately argue, as they do, that reforms such as sentencing guidelines and sentencing factors strip the jury of some of

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its traditional powers. Yet Duncan forces those justices to consider the impact their expansive interpretation of the Sixth Amendment on the states. To date, their opinions in cases such as Apprendi and Blakely do not seem to have been sufficiently sensitive to the impact of these decisions on principles of federalism. The approach offered here presents them with an opportunity to refocus on issues of federalism and to attempt to harmonize federalism with their commitment to the jury right.

Download rutledge_apprendi_and_federalism.doc November 10, 2004 at 02:55 PM

Lots to do while we waitMy knowledgeable sources tell me that the earliest we would see an opinion in Booker and Fanfan is now November 15, and they also say that November 29 (the Monday after Thanksgiving weekend) is even more likely. Fortunately, there are lots of Blakely activities to keep us busy in the meantime.If you are in a Supreme Court mood, you can follow the happenings in the other Washington and Indiana. Starting this morning, the Washington Supreme Court will be considering a series of Blakely cases and issues over two days as detailed here and here, and you can even hear a live webcast of tomorrow morning's Blakely-related cases in the Indiana Supreme Court here. The Seattle Post-Intelligencer in this article previews the Washington cases with a focus on the retroactivity; INCourts and the Indiana Law Blog will surely provide great coverage of the Indiana cases.If you want to focus on what's going on in the trial courts, you can keep on eye on the work of the sentencing jury in the Enron Nigerian barge case (background here), which according to this report is back to deliberating over contested sentence-enhancing guideline factors. Or you can study this Administrative Order Regarding Sentencing After Blakely from Rhode Island US Judge William E. Smith (it is two months old, but I just came across it). Or you can lament that, according to this report, white supremacist Matt Hale's sentencing is being delayed until we see a decision in Booker and Fanfan. And if you want to focus on the work of a commission, you can join me in gearing up the this US Sentencing Commission hearing next week. Though I believe the hearing's witness list is still being finalized, I have heard that a number of the folks who wrote for the Federal Sentencing Reporter's Blakely Issues (16.5 and 17.1) have been invited to testify. I will provide more details, and copies of any written materials I receive (such as the PAG Letter here), as soon as possible.November 9, 2004 at 11:59 AM

Tracking Blakely in the states If, as suspected, the US Supreme Court hands down Booker and Fanfan soon, the Blakely story will be become quickly and dramatically "federalized." Technically, Booker and Fanfan are only about Blakely's applicability in the federal system, and the impact of the decision, no matter what it says, on the structure and direction of federal sentencing reform will be profound. But I will be reading Booker and Fanfan with an eye on what it might tell states about Blakely. Despite all the attention given to federal sentencing, the state sentencing story is probably far

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more important (because more than 90% of all criminal convictions are in state courts) and certainly far more dynamic (because state sentencing structures are amazingly diverse and are being impacted by Blakely in amazingly diverse ways).A few weeks ago I detailed here the number of state Blakely cases, and the pace of rulings has only increased of late (with nearly 100 new rulings coming on-line in just the past three weeks). As of this morning, on Westlaw there are 332 on-line state court rulings at least mentioning Blakely, of which 132 come from California's courts alone. Helpfully, the Vera Institute's State Sentencing and Corrections Program (details here), as well as Professor Kevin Reitz through his work with the ALI (details here), are broadly tracking and working on state Blakely issues. In addition, Michael Ausbrook at INCourts continues to track effectively the Blakely story in Indiana (see his recent posts on Blakely trial, pleas and waivers and on on-going Indiana Blakely cases ). And, trying to keep apace with California developments are the folks at both the First District Appellate Project and the Appellate Defenders, Inc.I am hopeful (though not really optimistic) that I will be able to keep on top of the state story when the federal story shifts into high gear again soon. And I encourage every reader working in state systems and trying to deal with Blakely to help by sending me information and documents of interest.November 7, 2004 at 08:46 AM

Blakely analysis and insights for ALI's sentencing projectAs many readers may know, the American Law Institute has been working for the last few years, under the leadership of Professor Kevin R. Reitz as Reporter, on revising the (long-out-of-date) sentencing provisions of the Model Penal Code. (You can read here about the ALI's basic (pre-Blakely) plans for revision, and note here all the amazing people involved in the project. UPDATE: Kevin has noted that the "Plan for Revision" (linked above) was itself updated and revised in the April 2003 "Model Penal Code Sentencing: Report" presented at the ALI's annual meeting and available here.)Needless to say, Blakely has disrupted the on-going work of the ALI, although the need for model sentencing legislation really becomes even more acute in the wake of Blakely. A few weeks ago, Kevin Reitz prepared a "Report to the Council" for the ALI as an early discussion paper to help explain the impact and import of Blakely and to help identify particularly the problems that Blakely may create for effective reform in state sentencing systems. This discussion paper, which Kevin has graciously made available for posting here, does a wonderful job explaining the many open and interesting questions that the Blakely line of cases pose (some of which are also noted in my "Conceptualizing Blakely" article here). The paper also effectively canvasses legislative options in the wake of Blakely (and the pending Booker and Fanfan), while also making a host of interesting and important analytical observations along the way. Put simply, this paper is a must read for those thinking hard about the post-Blakely future of sentencing reforms.Download mpc_report_to_the_council_2004_for_blog.doc

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November 1, 2004 at 01:48 PM

So many state Blakely cases, so little timeThe stories of Blakely's impact on state sentencing continue to percolate, and this past week was particularly eventful with noteworthy rulings from Indiana, Minnesota, New Jersey and Oregon. And I have not even had a chance to skim the 16(!) Blakely rulings coming from the California appellate courts this week alone. Continuing his stellar work, my crackerjack research assistant has created a spreadsheet with a list of state cases to be found searching the allstates database in Westlaw for "Blakely & sentenc!" after June 24, 2004. For any number junkies out there, here is the data:Download blakely_state_case_counts.xlsThis spreadsheet shows that, as of October 16, a total 239 state Blakely cases are on-line. Interestingly, 23 states have had at least one Blakely decision come on-line, though the vast majority of these decisions come from California, Michigan, Minnesota, Ohio and Tennessee. And since I have seen a good number of state decisions which are not on-line, I am sure this data only presents an abridged version of the disruption that Blakely is causing in the states.October 16, 2004 at 11:22 PM

The Vera Institute Speaks Again!!As detailed here, the Vera Institute of Justice — which has been at the forefront of state sentencing reform through its State Sentencing and Corrections Program (SSC) — was at the forefront of covering the impact of Blakely in the states through its publication last month entitled "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems." Vera has now kept up the great work by having now released — just in time for its big conference noted here — a second report entitled "Aggravated Sentencing: Blakely v. Washington – Legal Considerations for State Sentencing Systems." The full report can be accessed here, and it provides the most comprehensive and insightful account of the mess that Blakely may create for the states. The report is a must-read for all Blakely fans, and I will quote here a valuable overview provided by SSC director Dan Wilhelm:

As Blakely continues to sow confusion and anxiety in many quarters of the criminal justice world, it is worth noting that much of the reported chaos has been confined to the federal system.... State sentencing systems, varied as they may be, simply are not as dependent on judge-found facts at sentencing — the heart of Blakely — as is the federal system. This means provisions that offend Blakely are easier to avoid for the time being, as state courts begin to sort out how the decision applies to their systems.... Many states have better recent experience in gathering together politically accountable officials to think about and construct sentencing reforms that are not only workable and public-safety minded but that squarely observe other aims — related to fairness, proportionality, and resources — that led many to revisit their sentencing schemes in the

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first place. The existence of productive entities such as sentencing commissions, working groups, legislative judiciary committees, and others gives many states a leg up in tackling Blakely.It also presents a potential opportunity, as this second in our series of Blakely papers suggests. Can the occasion of the Court’s decision encourage states not only to fix problems in their systems created by Blakely but also to explore policy changes that further protect the public while advancing justice? It is admittedly a tall order. The coming months will tell whether states seize and exploit the challenge the Supreme Court has handed them.

September 20, 2004 at 05:50 PM

Dollars and SentencingMany readers likely know that the paths of federal and state sentencing reforms have diverged in part because of economics. Even though the federal corrections system is the biggest in the country, state expenditures on corrections consume a much bigger portion of states' overall budgets. Thus, as highlighted by this terrific report entitled "Changing Fortunes or Changing Attitudes?: Sentencing and Corrections Reforms in 2003" produced earlier this year by the folks at the Vera Institute's State Sentencing and Corrections Program, states struggling with the "third straight year of severe economic crisis" took a series of "steps to lessen sentences and otherwise modify sentencing and corrections policy during the 2003 legislative sessions." This recent article discussing a planned review of state sentencing laws and practices in Oregon highlights that, when it comes to sentencing reform, the almighty dollar might still be more powerful than the almighty Blakely. Though Oregon state sentencing laws apparently have big Blakely problems (details here), the article reveals that the public debate over Oregon sentencing reforms is about sentencing costs not sentencing procedures. Here's hoping that, on the playing field of sentencing, Oregon can get its ducks in a row.August 24, 2004 at 09:21 AM

The next big Blakely issue: the prior conviction exceptionAs noted before here, the theoretical soundness of Almendarez-Torres' "prior conviction" exception to the Apprendi/Blakely rule has been widely questioned, and Justice Thomas' statements suggest that there are no longer five Justices who support this exception. Nevertheless, the "prior conviction" exception remains good law (for now), and we are continuing to see courts in the wake of Blakely giving this exception a broad reading. The recent Indiana state court decision in Carson (details here) is one very recent example of a (questionable) state ruling applying this exception expansively to escape Blakely's reach. Similarly, a recent unpublished order from California in People v. Cairati, No. A104764 (Cal. Ct. App., Aug. 19, 2004) (available here) gave the Almendarez-Torres exception a broad application through this holding:

Here, in imposing the aggravated term of 11 years in state prison, the court relied on several aggravating factors including defendant's "prior convictions [that] show a

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continuing pattern of violence and escalation which is frightening," the viciousness of the current offense, that defendant was armed with a shovel when he committed the offense, and his prior poor or unsuccessful performance on probation. That defendant had prior convictions that were numerous or of increasing seriousness is a specific factor supporting an aggravated term. Assuming Blakely applies to the California determinate sentencing scheme, under Apprendi, as reiterated in Blakely, the fact of defendant's prior convictions does not require a jury determination. Because even a single aggravating factor is sufficient to justify the imposition of the aggravated term, the trial court could properly rely on defendant's prior convictions without a jury determination in imposing the aggravated term.

The Booker and Fanfan cases will not give the Justices a direct opportunity to address the scope and application of the prior conviction exception. It has been noted here that the High Court, just before Blakely came down, granted cert in a case, US v. Shepard, 03-9168, that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely. Yet, as detailed here and here, Shepard is a federal case technically about a little issue in federal law. And oral argument in Shepard likely will not take place before next year.Just as the federal criminal justice system needs a quick clarification of Blakely's applicability to the federal guidelines, I think both state and federal criminal justice systems will soon need a direct clarification of the validity and scope of the prior conviction exception in the wake of Blakely.August 21, 2004 at 02:51 PM

Spanning the StatesThough there has not been huge Blakely news from the states recently, many small state stories continue to gurgle. Ron Wright, who has my great thanks for a wonderful job of guest-blogging last week, has relayed to me some of these stories upon his return from the National Association of Sentencing Commission's national meeting. I'll share Ron's many insights in a series of posts, through first let me note(small) news from the state courts. In Minnesota this week there has been a spate of remands from the courts of appeals with instructions to the district court "to consider the application of Blakely." State v. Carlson, 2004 WL 1826141 (Minn. App. Aug. 17, 2004); see also State v. Rivera, 2004 WL 1826586 (Minn. App. Aug. 17, 2004); State v. Henderson, 2004 WL 1833936 (Minn. App. Aug. 17, 2004). Similarly, a recent Indiana court of appeals' decision, Wilkie v. State, 2004 WL 1843005 (Ind. App. Aug 18, 2004), dodges direct consideration of Blakely in a footnote which states that the court is "mindful" of Blakely, but "leave[s] for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B)."This thoughtful news story effectively canvasses state sentencing developments, and explains why state Blakely stories have been slower to develop:

Blakely may have a somewhat more limited impact on the functioning of state sentencing systems because judicial fact-finding is used to determine sentences in only a small fraction of state-level cases. Plus, the nature of state sentencing systems makes it easier

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for state courts to sidestep the ruling until more permanent statutory solutions are enacted.

The article goes on to note, however, that we might just be noticing a period of calm before a major legislative storm:

Blakely could have considerable state-level repercussions, especially in states with sentencing structures similar to Washington's.... Daniel Wilhelm, director of state sentencing and corrections programs at the Vera Institute of Justice ... said he "absolutely" expects statehouses to be flooded with legislation aimed at tailoring state sentencing guidelines to bring them into compliance with Blakely, when legislatures reconvene next year. "People seem to be waiting to act until the legislatures reconvene in the new year," Wilhelm said.

Finally, this article notes that Kansas might serve "as a model for other states now looking to reform their systems of presumptive sentencing guidelines" because it "adopted a bifurcated system after the state supreme court in 2001 invalidated its system of presumptive sentencing guidelines." Interestingly, Ron had this report about views expressed at the NASC meeting concerning the "Kansas solution": From Ron about the Kansas system:Various academics, judges, prosecutors, sentencing commissioners, and defense attorneys [at the NASC meeting] related some of the events in Kansas. Kansas holds special interest for Blakely purposes, because a 2001 Kansas Supreme Court case, State v. Gould, anticipated the outcome in Blakely and struck down the use of judicial factual findings to authorize an aggravated sentence. The Kansas legislature responded by passing a statute that provides for bifurcated jury proceedings to find facts that could authorize an aggravated range sentence. As a result, Kansas now has a two-year head start in the use of bifurcated jury proceedings. There have been very few bifurcated jury proceedings held in the Kansas courts. In most counties, there have been none at all; statewide, there may have been less than a half dozen. When these proceedings do occur, attorneys and judges estimated that they only added one to three hours to the jury trial. Why so few bifurcated jury proceedings in Kansas? One explanation could be the fear of the unknowns and the hassle that could accompany the new extended jury proceedings. Another is the power of parties to negotiate an aggravated sentence: defendants might happily accept an aggravated range sentence in exchange for a reduction in the charges filed. But judges and attorneys from Kansas relied on several features of Kansas law for more specific explanations. They noted that consecutive sentences now take the place of aggravated sentences. Under Kansas law, the judge can impose consecutive sentences up to double the length of the most serious charge if there is a conviction for a second count. Prosecutors have begun more actively to charge additional counts, making possible these consecutive terms. For example, drug deals can also be charged as conspiracies and/or violations of the drug tax law. Judges and lawyers in Kansas also point out that the sentences for the most serious offenses are already pretty high in the presumptive range. Thus, for the most important cases, aggravated sentences may not appear to be that attractive to prosecutors. August 19, 2004 at 12:44 AM

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Week in ReviewPost from Ron: There has been more than enough turmoil in sentencing this summer, but we are finally getting a few days every now and then to catch our breath. In these short respites, it is worth reviewing recent events and asking about any patterns that have begun to form. There are a few stories from the past week that are especially telling for me. Coming into the week, we already knew a lot about the profusion of positions that federal courts were taking, with different nuances on questions of constitutionality and severability. But this past week told us something about the prospects for the near- and mid-term in both the states and the federal courts. The Vera Institute report (available here) diagnosed the potentially broad spread of Blakely effects within the states. The effects are indeed wide, reaching many states, but they might not become very deep. The Minnesota Commission report (available here), coupled with early returns from North Carolina (background here) suggested that the number of cases affected, even in truly presumptive guideline states, could remain quite small. On the other hand, there are some wildly expansionist possibilities, if Blakely reaches probation revocations, juvenile waivers into adult court, or calculations of criminal history that go beyond the simple fact of a past conviction (such as custody status at the time of the current crime). And finally, the O'Daniel case from the Northern District of Oklahoma might point the way to a stable set of practices for plea negotiations and the waivers that judges will accept or not accept. The opinion (linked here) is worth another read as we think over the next few weeks about our direction. August 8, 2004 at 11:29 PM

State of the StatesIn her Blakely dissent, Justice O'Connor identified nine states in addition to Washington with guideline systems that could be impacted by the Blakely ruling: Alaska, Arkansas, Florida, Kansas, Michigan, Minnesota, North Carolina, Oregon, and Pennsylvania. But the rapid reaction to Blakely in states like Arizona (details here and recent news report here) and California (details here and here) and Tennessee (details here) suggested that perhaps a much larger number of states will have to grapple with Blakely's impact on their sentencing systems.The stunning and important report from the Vera Institute today (details here) confirms that the impact of Blakely in the states is far and wide. The Vera report identifies 21 states with structured sentencing systems that could be directly impacted by Blakely, and it also notes that "Blakely has implications for other state sentencing provisions" as well. Proving this point is this article discussing the effect of Blakely in Maine (which does not appear on Vera's list of likely impacted states).The Vera report is a must-read for all Blakely followers because of its consistently insightful analysis, which includes trenchant observations about Blakely's "potential to reshape sentencing in the United States" and about the "apparently perverse result of the Blakely ruling." The questions raised and uncertainty caused by Blakely are highlighted throughout the Vera report,

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which in turn makes me eager to see a promised companion report from Vera entitled "Legal Considerations for State Sentencing Systems."Finally, though I am not sure exactly when future Vera reports are coming, I do know that additional state discussion of Blakely is imminent. Various sources have reported that the Minnesota Sentencing Guidelines Commission will release its short-term report on Blakely this Friday afternoon. Indeed, here's an article with some early sketchy details about the report.August 6, 2004 at 01:56 AM

The Vera Institute Speaks!!The Vera Institute of Justice — which has been long been doing extremely important justice-related projects and in recent years been especially involved in state sentencing reform through its State Sentencing and Corrections Program — has just released a publication that looks at the impact of Blakely on state sentencing systems. The Vera report is entitled "Aggravated Sentencing: Blakely v. Washington – Practical Implications for State Systems," and it can be accessed here. For a taste of what Vera contributes, here's a brief account from the report's authors Jon Wool and Don Stemen:

Few Supreme Court decisions have caused the turmoil that many state courts and practitioners are now experiencing as a result of Blakely v. Washington. The Court ruled that the Sixth Amendment forbids a judge to increase a criminal sentence based on facts not found by a jury beyond a reasonable doubt. The immediate effect? The invalidation of procedures used in Washington State's sentencing guideline system and the casting of doubt on the constitutional validity of structured sentencing systems nationwide. In more than 20 states, officials will need to look seriously at major aspects of how defendants are sentenced and many will need to make policy changes. This publication is the first in a series that Vera's State Sentencing and Corrections program will produce as part of its effort to provide timely and helpful analysis of Blakely's reach, offer practical advice to state lawmakers needing to realign their systems, and report on state reactions to the ruling. In this first report, we look to answer two big questions: Which states' sentencing systems are affected by Blakely? and What responsive options are available to legislators and other policymakers?

Vera also has plans in the works to convene a national meeting in Denver on September 22-23, 2004, for teams of officials from selected states affected by Blakely. According to Vera officials:

This day-and-a-half discussion will provide an opportunity for state policymakers to engage with each other and with leading practitioners and experts to develop feasible strategies — both immediate and longer-term — for responding to the Court's ruling. Vera will cover travel and all other meeting costs for participants. Because participant space is limited, invitations will be extended based on an application process. States are asked to complete this linked application and return it to Vera by Friday, August 20, 2004.

Finally, as noted before here, Vera (which, by the way, also co-produces the Federal Sentencing Reporter) will host on Thursday, August 12th an early morning discussion on the implications of

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Blakely for the federal sentencing guidelines. Frank Bowman, one of FSR’s editors, will be the guest speaker. Vera asks that those interested in attending download the invitation here and RSVP because space is limited.Download verafsrs_bowman_invite.pdfAugust 5, 2004 at 04:37 PM

Will state sentencing commissions do better?Because no state sentencing system is (yet) experiencing the turmoil now transpiring in the federal sentencing system (details here), it is understandable (and even perhaps defensible) that state sentencing commissions have not yet been active participants in the discussion of sentencing reforms after Blakely. Nevertheless, I visited today the home pages of most of the state sentencing commissions and was a bit troubled to find no mention of Blakely on any of the websites except Pennsylvania's (and the brief Pennsylvania discussion of Blakely is now a month old).I was quite encouraged to see, however, on the website of the New Mexico Sentencing Commission that there are plans in place to discuss Blakely at the upcoming Conference of the National Association of Sentencing Commissions, which is taking place next month in Sante Fe. (For details, including information on how to get an affordable NASC T-shirt, click here.) I was also pleased to see that the "NASC is setting up an internet page through the US Sentencing Commission for individual states to submit information, documents, recommendations, proposed legislation or reports related to their state's response to Blakely." Here is a link to that page, which currently has only limited information from Kansas, Michigan and Pennsylvania, but valuably seeks "to have each state provide information so it can serve as a clearinghouse of information on the states' responses."Finally, according to my Blakely calender, at least one state sentencing commission is going to be speaking publicly soon: this Monday, I believe, marks the deadline that Minnesota Governor Tim Pawlenty set for a short-term report from the Minnesota Sentencing Guidelines Commissionon concerning his state's sentencing procedures in the wake of Blakely (background here). I am very eager to see what this well-regarded Commission is going to say (and perhaps not say) about Blakely.July 30, 2004 at 05:46 PM

Tracking Blakely developments in the statesAccording to this story, the Blakely earthquake had its first aftershock in a Minnesota state court on Tuesday when the Minnesota Court of Appeals overturned a sex offender's 40-year prison sentence. Apparently, the state guidelines called for a sentence of 57 months, but the trial judge had imposed a 40-year sentence based on the conclusion that the defendant was a patterned sex offender.Helpfully, for those interested in tracking Blakely's impact and the developments in the state courts, the National Center for State Courts has already produced this very helpful report entited " Blakely v. Washington : Implications for State Courts" . This report not only is rich with analysis of what Blakely could mean for state sentencing systems and potential responses, but it also

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includes a terrific appendix detailing "Sentencing Practices and Other Relevant Policies in the States." Among the many interesting analytical points in the memo is the important observation that "probation and parole can be affected by Blakely under certain circumstances."In addition, there are a number of valuable state sentencing links within the NCSC report, including a link to this memo by Robert L. Farb of The Institute of Government at the University of North Carolina, entitled "Blakely v. Washington and Its Impact on North Carolina’s Sentencing Laws." July 21, 2004 at 02:28 AM

Deciphering Blakely for the statesThe coming week -- with the Senate Judiciary Committee hearing on Blakely scheduled for Tuesday and additional federal court rulings sure to come and come fast -- will likely focus much attention on what Blakely means for federal sentencing. But what Blakely means for state sentencing systems is no less important (more than 90% of all criminal convictions are in state courts) and no less dynamic (state sentencing structures are interestingly diverse and will be impacted by Blakely in interestingly diverse ways).Fortunately, we can be confident that there are a lot of fantastic projects and minds working on the state story. For example, the great folks at the Vera Institute of Justice's State Sentencing and Corrections Program have launched an initiative to assist state officials who are grappling with Blakely and its aftermath. As reported to me in an e-mail and detailed on its website:

SSC has already begun to provide advice, research, and other assistance to officials in states that are affected by the ruling. Later this summer, Vera will convene a major national meeting, providing a necessary forum for state officials to strategize together and learn from national experts in the sentencing field. Vera will also issue a series of publications designed to provide the information and resources policy makers need to craft short- and long-term response to Blakely.

In addition, I have heard that the great folks at Justice Strategies are also hard at work helping states make sense of Blakely. Justice Strategies has recently worked in conjunction with Families Against Mandatory Minimums on two great recent (pre-Blakely) reports about state sentencing developments -- a report about Arizona's sentencing laws avaliable here and a report about nationwide state sentencing developments available here. Both of these documents, and really everything produced by FAMM and Vera's SSC, should be required reading for everyone involved in sentencing reform.

Alaska

Interesting state Blakely reportsAfter a long but enjoyably uneventful trip to attend this conference, I am now on-line and on west coast time. And, upon checking my e-mail, I was pleased to find two reports about recent state Blakely developments. I hope the helpful correspondents won't mind me sharing their text verbatim:

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From a correspondent in Alaska: "The Alaska Court of Appeals issued a decision in Alaska v. Gibbs, No. A-8953 (Alaska App. Jan 5, 2005), involving a straight application of Blakely. The court held that a sentence of unsuspended imprisonment that was less than the statutory maximum did not violate Blakely. The possibility that additional imprisonment might be imposed, if the defendant's probation were revoked, and thus violate Blakely was not yet ripe."

From a correspondent in Ohio: "The Ninth District Court of Appeals ruled today that Blakely does not apply to Ohio sentencing statutes calling them an indeterminate sentencing scheme. Cases are State v. Jenkins CA 22008 [2005 Ohio 11; 2005 Ohio App. LEXIS 5 (Ohio App. Jan. 5, 2005)] and State v. Rowles CA 22007."

In addition, I see on-line that Washington is keeping Blakely busy in the new year with another Blakely reversal: State v. Smith, 2005 Wash. App. LEXIS 16 (Wash. App. Jan. 4, 2005). (Other 2005 Washington rulings are detailed here.) Smith is notable because it generates a dissent over Blakely's applicability in a sex offender case involving a unique provision of Washington's sentencing law.January 6, 2005 at 01:29 AM

Arizona

A range of sentencing storiesThough all is calm and all is bright this holiday morning, the newspapers still have an array of sentencing stories that merit a quick post. (I also need a break from toy assembly.) So here is some sentencing news of note:

This story from Arizona reports on a state trial in a rape case which was bifurcated so that, a month after rendering a guilty verdict, a jury could consider Blakely aggravating factors.

This story from Kansas details why the state's coming legislative debate over capital punishment — which is necessary because of the Kansas Supreme Court's Marsh decision (discussed here, commentary here and here) — probably won't be limited to just fixing the procedural flaw that led the Court to strike down the state's death penalty law. The report notes that the incoming state Senate leader "expects an attempt from opponents of capital punishment to scuttle the law, though such an effort is not expected to succeed."

Finally, returning to the pardons story (covered here and here), the papers report that Governors in South Dakota and Vermont made this year an especially Merry Christmas for a few offenders.December 25, 2004 at 12:19 PM

Blakely cases keep rolling alongWith all the major Blakely rulings last week (some details here), I thought this pre-holiday week might be quiet on the Blakely front. But there are on-line already more than a dozen state and federal appellate cases dealing with Blakely issues from Monday and Tuesday of this week alone. Here are a few of the rulings that seem most noteworthy:

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FEDERAL CASES In US v. Taveras, 2004 U.S. App. LEXIS 26540 (1st Cir. Dec. 21, 2004), the First Circuit in a per curiam opinion upholds a trial judge's consequental drug-quantity findings, which were based on seemingly suspect accomplice testimony. Of course, this finding raises Blakely issues, but the Taveras court continues the First Circuit's approach (noted here and here) of using plain error analysis to rebuke Blakely claims.In US v. Vaughan, 2004 U.S. App. LEXIS 26545 (10th Cir. Dec. 21, 2004), the Tenth Circuit similarly uses plain error analysis to rebuke Blakely claims in a major fraud case. Here, the court notes the defendant "admitted in the plea agreement to all five of these [Blakely-significant] facts [and thus] has failed to show that any sentencing error under an extension of Blakely would seriously affect the fairness, integrity, or public reputation of the judicial proceedings in this case."In US v. Mellen, 2004 U.S. App. LEXIS 26513 (D.C. Cir. Dec. 21, 2004), the D.C. Circuit, in a split 2-1 decision, overturns the trial court's calculation of the amount of loss in a fraud case. In so doing, the court avoided having to address Blakely, but it explained: "We issue our judgment today without awaiting guidance from the Supreme Court on this question because it appears, quite apart from any constitutional concerns, that [the defendant] may be eligible for immediate release upon resentencing. To the extent necessary, the district court may apply the Supreme Court's upcoming decisions in Booker and Fanfan in the first instance at resentencing."STATE CASES In State v. Gomez, 2004 WL 2937808 (Ariz. App. Div. 1, Dec. 21, 2004), the court examines the rules for applying Arizona's Proposition 200, which was "a voter initiative also known as the Drug Medicalization, Prevention, and Control Act of 1996 [which seeks] to treat initial convictions for personal possession and use of a controlled substance as a medical and social problem." Significantly, the court finds the provision which "disqualifies an otherwise eligible defendant from mandatory probation for a drug offense based solely on a finding that the defendant has been 'indicted for a violent crime' to be unconstitutional." In State v. Brown, 2004 WL 2938643 (Minn. App. Dec. 21, 2004), the court sustains a Blakely objection to the application of Minnesota's career offender sentencing statute. Here's how the Brown court explains why the defendant's sentence was Blakely problematic: "Although the existence of prior convictions falls under an exception to the Blakely requirement of jury findings, an upward departure under the statute requires an admission or a jury verdict on the added finding that the convictions formed a pattern of criminal conduct."December 22, 2004 at 01:46 PM

State Blakely stories in the newspapersThough, as detailed here and here, I have given up tracking comprehensively Blakely decisions coming from lower state courts, the newspapers help spotlighting interesting state Blakely developments:

This article from Metropolitan News-Enterprise discusses a noteworthy recent Blakely ruling, People v. Vu, from California's Fourth District Court of Appeal. Though I am not sure Vu breaks

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new ground, the article details how "messy" Blakely issues are in California (a point also highlighted in the California-centric Blakely coverage by the FDAP and ADI).

This article from the Yuma Sun discusses at length an Arizona case in which the litigants and courts are dickering over the status of a plea deal in the wake of Blakely. According to the article, in a case involving a Marine accused in the stabbing death of an elderly man, the "Arizona Court of Appeals ruled that the Yuma County Attorney's Office may not withdraw from a plea agreement in it previously made." The article also reports that the court held that "the Blakely decision required a jury to determine aggravating factors, and that the [sentencing] judge could empanel a jury for that limited purpose."December 11, 2004 at 06:46 AM

Blakely federalism in actionWith this week's US Sentencing Commission hearing (highlights here and here, commentary coming soon) and a ruling in Booker and Fanfan likely only a few weeks away, it is dangerously easy get caught up in all the compelling federal Blakely stories. But I continue to be most amazed as I observe and try to monitor the dynamic (and now very fast moving) state Blakely dramas that are unfolding nationwide.In posts here and here, I documented a number of the major recent state ruling from the past week alone. And to that list we should now add State v. Henderson, 2004 WL 2608286 (Ariz. App. Div. 1, Nov. 18, 2004), which weighs in on the important question (recently discussed in Illinois as noted here) concerning whether Blakely error is "structural error requiring automatic reversal." (Henderson holds, by a 2-1 vote, that it is not.)In addition, I can now share noteworthy commentary on some of these state developments: (1) here is a newspaper article from California on a discussing Blakely reversal; (2) here are thoughtful comments suggesting Ohio courts are illegitimately dodging Blakely; and (3) for downloading below is an impressive set of comments about the aftermath of the major New Jersey ruling in State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004) prepared by Steve Sanders, who wrote an amicus brief in the case for the Association of Criminal Defense Lawyers of New Jersey.Download blakely_in_nj_after_natale.doc November 18, 2004 at 03:44 PM

Still more state Blakely rulings of noteWith Booker and Fanfan apparently still weeks away, we fortunately have more than enough significant state developments to keep Blakely fans busy. Last week, for example, major Blakely decisions came from intermediate appellate courts in Arizona, Indiana, Oregon, and Tennesse (and, of course, California also contributed yet another dozen or so appellate court rulings involving Blakely issues).Because I am busy trying to write my testimony for the US Sentencing Commission's hearings this week, I can only provided a cursory overview of these state developments:

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In Arizona v. Resendis-Felix, 2004 Ariz. App. LEXIS 165 (Ariz. Ct. App. Nov. 10, 2004), the court reverses and remands on Blakely grounds, and there is a very interesting dispute between the majority opinion and a concurrence concerning the nature and review of a Blakely error.

In Traylor v. State, 2004 Ind. App. LEXIS 2229 (Ind. Ct. App. Nov. 10, 2004), the court reverses an aggravated sentence on Blakely grounds; the highlights are here courtesy of INCourts.

In State v. Fuerte-Coria, 2004 Ore. App. LEXIS 1462 (Ore. Ct. App. Nov. 10, 2004), the court refuses to find (an unpreserved) Blakely error because it is not clear Blakely extends to the imposition of consecutive sentences on the basis of judicial findings.

In State v. Pierce, 2004 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Nov. 2004), the court reduced one part of the defendant's sentence on Blakely grounds, but upheld the imposition of consecutive sentences over a Blakely objection.

November 14, 2004 at 10:11 PM

Further narrowing of Blakely's reach in the statesWe have seen state courts find all sorts of ways to limit the reach of Blakely, and noteworthy recent cases from Arizona and Indiana continue the trend. In State v. Arciniega Martinez, 2004 WL 2474976 (Ariz. App. Div. 1, Nov. 04, 2004), and Wickliff v. State, 2004 WL 2453041 (Ind. App. Nov. 03, 2004), state intermediate courts find clever and questionable ways to keep Blakely from disrupting a sentence on review.In Arciniega Martinez, the Arizona court explains that "a jury need not find every aggravator upon which a sentencing judge relies [and] Blakely error is subject to harmless error or fundamental error analysis and may or may not require reversal based on the facts of a particular case." There are many interesting features of the Arciniega Martinez court's holding and analysis, and perhaps the most noteworthy passage explains:

Because the jury found at least one aggravating factor, defendant was eligible to receive an aggravated sentence, and the trial court's weighing of additional aggravating and mitigating circumstances to determine the appropriate sentence within the aggravated range was permissible. Put another way, the jury having found the existence of one aggravating factor, its verdict expanded the sentencing range and the scope of the trial court's sentencing discretion. When one aggravating factor is authorized by the jury, Blakely is satisfied.

A similar approach and logic is applied in Wickliff, where the court details that various criminal history issues and facts admitted by the defendant supported an enhacned sentence and then explains:

Whether or not Indiana's sentencing scheme runs afoul of the Sixth Amendment, Wickliff's sentence would not be affected because even a single valid aggravating circumstance is sufficient to justify enhancement of a sentence Here, there were two valid aggravating circumstances identified by the court justifying enhancement of Wickliff's sentence.

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UPDATE: A reader has provided a direct link here to the Arizona appellate court's decision in Arciniega Martinez.November 5, 2004 at 06:49 AM

The Blakely earthquake hits ArizonaThough there has previously been some Blakely rumblings in Arizona (detailed here and here and here), the Blakely earthquake officially hit the 48th state through the Arizona Supreme Court's decision in State v. Brown, 2004 WL 2390005 (Ariz. Oct. 27, 2004).

Brown is a fascinating little opinion as much for what it does not say, because on appeal the government conceded that the lower court opinion, which held that the "maximum sentence" for purposes of Apprendi was the super-aggravated 12+ year sentencing term under Arizona law, "cannot withstand analysis in light of Blakely." Specifically, the Arizona Supreme Court confirmed that it was no longer proper for a defendant to be "sentenced to a term greater than the presumptive sentence solely on the basis of facts found by the trial judge upon a showing of 'reasonable evidence'":

The "maximum sentence" for Apprendi analysis in this case is the five-year presumptive sentence in § 13-701(C)(1). Because a sentence in excess of five years could be imposed on McMullen only after a finding of one or more of the aggravating circumstances in § 13-702(C), the Sixth Amendment guarantee of jury trial extends to the finding of these facts and requires proof beyond a reasonable doubt.

But, after making clear the applicability of Blakely to Arizona's basic sentencing structure, the Brown court stopped in its tracks:

The parties and their amici ... ask us to address myriad other questions that may arise either in the further prosecution of this case or in other cases potentially affected by the Apprendi and Blakely decisions. Given the procedural posture in which this case arrived in this Court, we decline to do so. While many of these additional issues deserve serious consideration, almost none have been directly addressed by the trial judge, and none were raised in or decided by the court of appeals. We are unwilling, even in this important area of the law, to consider these issues as an initial matter in the context of this special action. We recognize and appreciate the interest that both the State and the defense bar have in understanding the full implications of Apprendi and its progeny for the Arizona sentencing scheme. We believe, however, that the best approach is to resolve any such questions in this dynamic area of the law in the context of a case in which the relevant issue is squarely presented, properly briefed, and addressed by the courts below. We also are mindful that the legislature may choose to moot many such questions, as it did in the wake of Ring, by enacting new sentencing statutes. We therefore leave additional questions not addressed below to another day.

October 27, 2004 at 05:37 PM

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Arizona effort to keep Blakely in checkContinuing the trend of important state Blakely cases (see others here and here and here), an intermediate appellate court in Arizona issued an interesting ruling ysterday in State v. Miranda-Cabrera, 2004 WL 2359851 (Ariz.App. Div. 1, Oct. 21, 2004). The ruling in Miranda-Cabrera provides yet another example of a lower court finding various means and methods to keep the impact of Blakely somewhat controlled.The defendant in Miranda-Cabrera argued that "the trial court violated Blakely in two different respects. First, it violated his Blakely rights by subjecting him to the enhanced sentencing range required by the dangerous crimes against children act without specific jury findings justifying that exposure, and second in finding certain aggravating factors in sentencing him to a mitigated sentence within that enhanced range." In a thoughtful and thorough (and contestable) opinion, the Arizona court found neither of these claims availing.On the first issue, the court asserted that the facts admitted by the defendant in the course of his trial testimony "establish that Miranda-Cabrera's conduct was sufficiently directed at [the victim] to satisfy the 'targeting' requirement for this offense to constitute a dangerous crime against children." The court then explained that "[e]ven assuming that the facts admitted by the defendant in his testimony at trial are not sufficient to be facts 'admitted by the defendant' for sentencing purposes, it was harmless error in this circumstance for the judge to enhance Miranda-Cabrera's range of sentence without a separate and specific finding." On the second issue, the court concluded it need not remand for resentencing merely because Miranda-Cabrera's sentence might have shorter if the trial court had not found certain aggravating factors to set off against mitigating factors when imposing sentence. The court asserted that Blakely was not violated because "the court's consideration of the sentencing factors did not result in the imposition of a sentence above that which the judge was entitled to impose based on 'the facts reflected in the jury verdict or admitted by the defendant.'" The court stressed that Blakely indicates that "the Sixth Amendment does not remove all discretion from the judge in sentencing" and that "indeterminate sentencing does not infringe on the province of the jury" in order to conclude that "whether the sentencing scheme is determinate or indeterminate, once the jury has found the facts necessary to impose a sentence within a statutory range, a judge may consider any additional sentencing factors in imposing a lesser sentence than the statute authorizes." Consequently, the court affirmed the defendant's sentence:

Because Miranda-Cabrera received a sentence in this case that was less than the sentence the judge could have imposed based solely on the facts found by the jury and admitted by Miranda-Cabrera, the trial court did not violate Miranda-Cabrera's constitutional rights pursuant to Blakely by finding additional aggravating factors in imposing a mitigated sentence.

October 22, 2004 at 10:25 AM

Covering Blakely in the statesAs suggested here, the number of state rulings on Blakely continues to grow. In just two days this week, there has already been nearly a dozen Blakely decisions, and the pace of the rulings now entails that I cannot hope to provide comprehensive coverage of all the state court action.

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(Amazingly, the First District Appellate Project seems to be keeping up with all the Blakely court action in California here.) I will try to continue to spotlight state cases of particular importance or interest, and I encourage readers to help me find this cases. I have recently found two such noteworthy state cases decided late last week: State ex rel. Smith v. Conn, 2004 Ariz. App. LEXIS 149 (Ariz. App. Oct. 14, 2004) and State v. White, 2004 Tenn. Crim. App. LEXIS 901 (Tenn. Crim. App. Oct. 15, 2004).In Conn, the state prevailed on a challenge to a trial court's order denying the state's motion to add an allegation of aggravating factors to the indictment and request for jury trial. The court explained:

We disagree with the trial court's conclusion that A.R.S. § 13-702(B) is invalid after Blakely. That A.R.S. § 13-702(B) requires a trial judge to find aggravating factors does not mean that, post-Blakely, juries cannot do so without a legislative change to the statute. There is nothing in the plain language of A.R.S. § 13-702(B) that prohibits a trial court from submitting aggravating factors to the jury. Moreover, nothing in A.R.S. § 13-702(B) prevents a jury from finding aggravating factors. Once a jury finds an aggravating factor, Blakely is satisfied, and A.R.S. § 13-702(B) allows a trial judge to impose an aggravated sentence after consideration of the factors enumerated in A.R.S. § 13-702.

In White, the court addressed a range of Blakely issues under Tennessee law (which itself triggered a partial dissent). But most intriguing were these comments about Blakely and restitution:

Our final inquiry is whether any order of restitution in this case is subject to the dictates of the recent United States Supreme Court's decision in Blakely .... The Blakely Court did not speak in narrow terms that targeted merely the length of an accused's sentence; rather, the Court spoke in broader terms of the power to punish.... Existing Tennessee case law expressly recognizes, "The purpose of restitution is not only to compensate the victim but also to punish and rehabilitate the guilty." Restitution has also been described as "an important tool in the punishment of criminals. " More particularly, restitution has been regarded as "a part of the sentencing scheme and in the nature of a penalty for crime," which is not affected by the victim releasing the offender from civil liability.Tennessee's view of restitution ostensibly conflicts with the prevailing view in two federal circuits, ... but it is consistent with the approach taken in two other federal circuits.... Regardless whether restitution qualifies as punishment, however, we believe that a judicial finding of an amount of restitution does not run afoul of the Due Process or Sixth Amendment guarantees as interpreted in Blakely. Blakely and its progenitor, Apprendi v. New Jersey, 530 U.S. 466 (2000), specifically targeted increased penalties for crimes beyond the prescribed statutory maximum without submission to a jury or admission by a defendant. Neither Code section 40-20-116 nor section 40-35-304 embraces a "statutory maximum" that could be increased by a given finding; that is to say, neither statute specifies a maximum amount of restitution that may be ordered. Accordingly, nothing in Blakely appears to reach our restitution scheme or the particular restitution order entered in this case.

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October 20, 2004 at 02:23 AM

Still more interesting state decisionsThough the federal courts have, perhaps quite justifiably, issued relatively few Blakely decisions as the Booker and Fanfan arguments approach, the state courts have to keep sorting out Blakely without any reassurance that helpful guidance will be coming from the Supreme Court anytime soon. (Indeed, as I suggested here, the rulings in Booker and Fanfan could actually make life harder, not easier, for the states). And the state courts continue to issue interesting Blakely decisions. For example, in State v. Fell, 2004 Ariz. App. LEXIS 137 (Ariz. App. Sept. 23, 2004), the court considered whether a trial court could impose a natural life prison term on a first-degree murder charge without the state having to prove to a jury beyond a reasonable doubt the aggravating circumstances the state previously had alleged when seeking the death penalty. The court ultimately concluded that Blakely did not require "a jury to find beyond a reasonable doubt that certain aggravating circumstances exist before a trial judge in Arizona may sentence a defendant convicted of first-degree murder to a natural life prison term rather than life with the possibility of parole."In Commonwealth v. Junta, 2004 Mass. App. LEXIS 1080 (Mass. App. Sept. 23, 2004), the court dropped a footnote to explain: "The recent United States Supreme Court decision in Blakely has no application here, as the Massachusetts sentencing scheme provides for indeterminate sentences."Meanwhile, in Blakely bellweather Ohio, the court in State v. Eckstein, 2004 Ohio App. LEXIS 4594 (Ohio App. 1st Dist. Sept. 24, 2004), the court avoids Blakely by asserting that statutory "findings that must be specified prior to a departure from the minimum prison term are discretionary factors to be used by the trial court in determining what sentence to impose within the authorized range."September 25, 2004 at 05:30 PM

More interesting state developments nationwideThough we all have lots of federal briefs to read, the state courts continue to work through an array of Blakely issues in an array of legal settings. For example, from Arizona yesterday we get an interesting decision in Aragon v.Wilkinson, 2004 WL 2093357 (Ariz. App. Sept. 21, 2004), which involved a "special action petition arguing that the trial court abused its discretion by granting the State's motion to withdraw from a plea agreement that the court had previously accepted." The State sought to withdraw the plea agreement because of concerns that Blakely would preclude the imposition of an enhanced sentence, and the trial court allowed the plea agreement to be withdrawn. But the Arizona appellate court decided it should:

grant relief by vacating the trial court's order, which permitted the State to withdraw from a plea agreement entered with Aragon and previously accepted by the court. In light of

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Blakely, the maximum sentence the court may impose absent jury findings must be based only on the facts admitted by Aragon. However, the court may convene a jury to find any facts supporting imposition of an aggravated sentence.

From Minnesota, we get another Blakely remand of an upward departure, see State v. Behr, 2004 WL 2093999 (Minn. App. Sept 21, 2004), as well as two cases which essentially avoid the issue of Blakely's retroactivity, see Davis v. State, 2004 WL 2093964 (Minn. App. Sept. 21, 2004); Morris v. State, 2004 WL 2094675 (Minn. App. Sept. 21, 2004). From Tennessee, in State v. Cooper, 2004 WL 2093262 (Tenn. Crim. App. Sept. 20, 2004), we get a Blakely remand in a DUI context.In California, we get another (unpublished) decision indicating that Blakely impacts the imposition of an upper-term sentence. See People v. Sidic, 2004 WL 2095547 (Cal. App. 2 Dist. Sept. 21, 2004). And in People v. Lemus, 2004 WL 2093427 (Cal. App. 4 Dist. Sept. 20, 2004), there is a bit of sparring over Blakely's applicability in California: the majority concludes that defendant Lemus' sentence is problematic after Blakely because "the trial court's decision to impose the upper term sentences was based on fact finding on matters not contained within the jury verdicts." But Judge Benke dissented on this point, contending that "California's sentencing scheme is entirely consistent with the principles discussed in Apprendi v. New Jersey and its progeny, Blakely."September 22, 2004 at 08:03 AM

Blakely and victims’ rightsA fascinating new Blakely issue emerged in a decision from the Arizona state courts yesterday. In State ex rel. Romley v. Dairman, 2004 WL 1774619 (Ariz. App. Aug. 10, 2004), the court was considering the impact of the Victims' Bill of Rights in Arizona's constitution on a sentencing proceeding in a child molestation case. In the course of its analysis, the court had interesting things to say about the impact of Blakely on these sorts of issues:

We must address the impact of the United States Supreme Court's recent decision in Blakely v. Washington, No. 02-1632 (U .S. June 24, 2004) as it relates to the victims' rights issue before us.... Blakely obviously affects whether a trial judge, without a waiver from the parties, can aggravate a sentence based on the statutory aggravating factor of "physical, emotional and financial harm caused to the victim." A.R.S. § 13-702(C)(9). We do not rule on the constitutionality of Arizona's sentencing scheme because that issue has neither been presented nor briefed. We refer to Blakely for two reasons only: (1) it is clear to us that the trial court will need to consider Blakely when providing for the particular type of sentencing proceeding (judge or jury) at which the victim has rights, and (2) regardless of the type of sentencing proceeding that Blakely constitutionally requires, the trial judge has a statutory and Arizona constitutional mandate to allow for the presentation of permissible evidence by a victim at a sentencing proceeding whether that proceeding is before the trial judge, the jury, or a combination of the two. See Ariz. Const. art. 2, § 2.1(A)(4) (victims have the right to "be heard at any proceeding involving a post-arrest release decision, a negotiated plea and sentencing ") (emphasis added); A.R.S. § 13-4410 (requiring that a victim be notified of her rights, including the right "to

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make a victim impact statement" and "to be present and heard at any presentence or sentencing proceeding") (emphasis added). Victims' rights are not restricted to sentencing proceedings conducted by the court. They must also be provided for in sentencing proceedings that are constitutionally required to be undertaken by a jury.

August 11, 2004 at 01:39 PM

Blakely developments in ArizonaA few recent news articles suggest that Arizona will be an interesting state to watch for Blakely developments. First, this article highlights that in Arizona, defense attorneys "find themselves in rare agreement with prosecutors on one issue: there's no need for the Legislature to rush to change state law in response to a U.S. Supreme Court ruling that may affect the way Arizona sentences criminals." I highly recommend reading this entire article, which is rich with information about coping efforts and plans for Arizona state sentencing. Among the interesting tidbits:

Maricopa County Public Defender James Haas said the criminal justice system's response to the ruling so far varies, with some counties using plea agreements that have defendants waive the need for jury findings, some reluctance by judges to impose sentences beyond the presumptive terms and one judge reportedly declaring that the ruling doesn't apply to Arizona.

Also, there is apparently a healthy collaborative spirit as the system is thinking about long-term fixes:

[D]efense attorneys are reaching out to prosecutors, scheduling informal meetings in coming weeks. "We may not agree on what we're going to do but at least we ought to talk together."... However, it's likely that numerous sentencing issues stemming from the ruling will still have to be fought out in court - no matter what the Legislature does in response, Haas said. "Every time you talk to people you come up with new issues."

And to provide a ground level view of post-Blakely life in Arizona, here is an article describing Blakely's impact on a manslaughter prosecution of Lee Parulski. Here's an interesting snipit:

During Thursday's hearing, Jim Coil, the prosecutor, said that he offered three options to Mike Rollins, Parulski's attorney, after the Blakely ruling. Coil said Parulski could waive his Blakely rights; a new plea agreement in which Parulski would plead guilty to second-degree murder could be signed; or a jury could be called. Rollins said he rejected the waiver or a new plea agreement. He said calling a jury would be acceptable. However, there is no procedural mechanism under Arizona law to call a jury in a case involving a plea agrement.

July 17, 2004 at 01:46 PM

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More state wisdomAs stressed before, federal actors and institutions would do well to listen and learn from the states as they contemplate the post-Blakely world. This article from Arizona provides another example of state wisdom when it reports:

Prosecutors won't ask the Legislature to quickly meet in special session to change the state's criminal sentencing laws in reaction to a U.S. Supreme Court decision, officials said Friday. The Arizona Prosecuting Attorneys Advisory Council, a group of state, county and city prosecutors, has agreed that while legislative action will be needed, a go-slow approach is prudent, officials said. "We basically want to assure that a legislative fix arises from a thoughtful discussion and a reasoned discussion," said Ed Cook, the council's executive director.

Congress, DOJ, are you listening? July 4, 2004 at 05:02 PM

California

State Blakely cases ring in the new yearI joked here that I was waiting to see which court would be the first to issue a noteworthy Blakely ruling in 2005. Perhaps fittingly, the honor goes to the Washington state courts, which already has two new year Blakely rulings on-line: State v. Fero, 2005 WL 15171 (Wash. App. Div. 2, Jan. 04, 2005) and State v. Cartwright, 2005 WL 12021 (Wash. App. Div. 1, Jan 03, 2005). And, for those scoring at home, we also have on-line Blakely decisions from California and New Jersey this new year. See People v. Standifer, 2005 WL 15449 (Cal. App. 2 Dist. Jan. 04, 2005); State v. Vasquez, 2005 N.J. Super. LEXIS 4 (NJ App. Div. Jan. 4, 2005).The Fero case is the most notable of the bunch because it (1) reverses a sentence based on Blakely, (2) concludes that "the plain line of Apprendi, Neder, and Blakely, [establish that a Blakely violation] is a structural error and harmless error cannot apply," but (3) decides that the trial court may on remand "empanel a jury to consider aggravating factors without violating double jeopardy or the separation of powers." On the second point, one judge weighs in with a thoughtful "dissent from that portion of the opinion holding that Blakely violations are structural errors requiring automatic reversal." Significantly, as detailed here, an Illinois appellate court has also concluded that a Blakely error ought now to be viewed as structural error and not allow for harmless error analysis, although that court felt bound to conduct harmless error analysis because of rulings of its state Supreme Court. It is thus increasingly evident that the nature of Blakely error is another tough doctrinal issue that SCOTUS might need to resolve in the near future.January 4, 2005 at 11:27 PM

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More holiday season state Blakely rulingsAs noted before, with all the major Blakely rulings early this month (some details here), I thought the holiday weeks might be quiet on the Blakely front. But, as detailed here and here, just the first few days last week brought more than a dozen state and federal appellate cases dealing with Blakely issues. In addition to the previously noted rulings here, a few more state Blakely decisions from last week recently came on-line with Patrick v. State, 2004 WL 2965848 (Ind. App. Dec. 23, 2004) (which is discussed at length here by Michael Ausbrook at INCourts) and also State v. Whatley, 2004 WL 2964710 (Tenn. Crim. App. Dec. 22, 2004). And today from the west coast today came State v. Clarke, 2004 WL 2980283 (Wash. App. Div. 1, Dec. 27, 2004) and People v. Brooks, 2004 WL 2980298 (Cal. App. 2 Dist., Dec. 27, 2004)December 27, 2004 at 10:31 PM

State Blakely stories in the newspapersThough, as detailed here and here, I have given up tracking comprehensively Blakely decisions coming from lower state courts, the newspapers help spotlighting interesting state Blakely developments:

This article from Metropolitan News-Enterprise discusses a noteworthy recent Blakely ruling, People v. Vu, from California's Fourth District Court of Appeal. Though I am not sure Vu breaks new ground, the article details how "messy" Blakely issues are in California (a point also highlighted in the California-centric Blakely coverage by the FDAP and ADI).

This article from the Yuma Sun discusses at length an Arizona case in which the litigants and courts are dickering over the status of a plea deal in the wake of Blakely. According to the article, in a case involving a Marine accused in the stabbing death of an elderly man, the "Arizona Court of Appeals ruled that the Yuma County Attorney's Office may not withdraw from a plea agreement in it previously made." The article also reports that the court held that "the Blakely decision required a jury to determine aggravating factors, and that the [sentencing] judge could empanel a jury for that limited purpose."December 11, 2004 at 06:46 AM

So many more state Blakely rulingsThe noteworthy Blakely rulings from state courts continue to come in at a fast and furious pace (see here for more recent evidence). Already this week alone, we have more consequential rulings from Indiana, Ohio, New Jersey and Washington (and, of course, the obligatory weekly collection from California). Also, just on line is an important Delaware ruling from last week. Though all of these decisions deserve fuller discussion, today the best I can reasonably do is provide summary highlights. I encourage readers to use the comments to note any exceptional features of these cases that merit spotlighting:

In Benge v. State, 2004 Del. LEXIS 506 (Del. Nov. 12, 2004), the Delaware Supreme Court declared "Blakely does not impact Delaware's sentencing scheme because the SENTAC guidelines are voluntary and non-binding."

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In Lampitok v. State, 2004 WL 2590817 (Ind. App. Nov. 16, 2004), the court drops a footnote to give the "prior conviction" exception a broad application (INCourts provides more details here);

In State v. Berry, 2004 WL 2580555, 2004-Ohio-6027 (Ohio App. 12 Dist. Nov. 15, 2004), the court articulates two bases on which the court claims Ohio's sentencing system completely escapes the application of Blakely;

In State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004), the court concluded New Jersey's presumptive sentencing scheme is generally impacted by Blakely (and, again, INCourts covers the highlights here);

In State v. Alkire, 2004 WL 2580772 (Wash. App. Div. 1, Nov 15, 2004), the court upholds a sentence based on the "prior conviction" exception (and does despite the fact the defendant's "invites this court to abandon the 'crumbling foundation' of Almendarez-Torres and the prior conviction exception").

And, for continuing coverage of the continuing stream of California cases, remember that the First District Appellate Project is here keeping up with recent major rulings, and Jonathan Soglin here notes a California published opinion that apparently breaks a little new ground.November 18, 2004 at 09:25 AM

Nationwide Blakely developments in the statesThough today's non-arrival of Booker and Fanfan keeps the federal Blakely story on hold, the state Blakely stories continue to develop at a fast and furious pace:

Michael Ausbrook has a long and thoughtful post here on recent decisions from Indiana which may presage what the Indiana Supreme Court might do with the Blakely cases it is considering tomorrow. And, in the Indiana intermediate appellate courts, a decision today, Teeters v. State, 2004 WL 2521386 (Ind. App. Nov. 09, 2004), relies on the "prior conviction" exception and other means to affirm a sentence over Blakely objections.

The Minnesota Sentencing Guidelines Commission details here its plans for a meeting next month "to consider proposed modifications to the sentencing guidelines and commentary resulting from the recent U.S. Supreme Court decision Blakely v. Washington." The proposed modifications include "changes to the procedures for imposing aggravated departures, modifications to the consecutive sentencing provisions, modification to the sentencing grid and proposed ranking of unranked offenses."

The Delaware Sentencing Accountability Commission has here (scroll down) a brief discussion of the Delaware Supreme Court's decision in Fuller v. State, No. 38 (Del. Oct. 29, 2004), which seems to indirectly suggest that Blakely may not be applicable to Delaware's voluntary sentencing guidelines.

And, of course, California's appellate courts keep hashing out Blakely with now 137 Blakely-related opinions on-line. (Many of the most significant rulings are summarized here by the First Disrict Appellate Project in California.)

November 9, 2004 at 10:15 PM

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The power of positive thinking?Especially with a decision in Booker and Fanfan perhaps only hours away, now is a good time to recall earlier positive and negative posts about Blakely and expected reactions thereto. Glass-half-full types in the mood to think positive should go here and here, glass-half-empty types in the mood to think negative should go here and here.And for those interested in more optimism, this article from corrections.com entitled "Sentencing: Legal Efforts Hint of Change" puts a very positive spin on Blakely and also on the defeat of Proposition 66, the effort to amend California's Three Strikes Law. Though this article may actually be too upbeat even for an eternal optimist like me, the piece gives a long and effective account of reasons why the "era of locking up non-violent criminals for lengthy sentences seems to be coming to a close."November 9, 2004 at 06:42 AM

Three Strikes meets Blakely/ApprendiAs followers of the blog know from many prior posts (including here and here and here), today is a big day for the future of Three Strikes in California because of voter consideration of Proposition 66, which would narrow the reach of the most expansive and consequential Three Strikes law in the nation. Lots of interesting stories of criminal justice law and policy could be told depending upon the outcome of Proposition 66.And speaking of interesting, just appearing on Lexis is an interesting Ninth Circuit habeas ruling from last week which explores the possible intersection of Three Strikes and Blakely/Apprendi. In Stevenson v. Lewis, 2004 U.S. App. LEXIS 22511 (9th Cir. Oct. 28, 2004), the defendant claimed Apprendi was transgressed when the state sentencing court denied a motion to strike his prior convictions based on "consideration of facts not proven to a jury beyond a reasonable doubt, such as evidence suggesting that he possessed cocaine for sale and a gun." Though a clever argument, the Ninth Circuit detailed in Stevenson the reasons why it could not prevail under current law:

Apprendi, however, does not apply to the trial court's discretionary decision ... to strike a prior conviction.... Apprendi carved out a "narrow exception" for sentence enhancements based on "the fact of a prior conviction." The Almendarez-Torres exception was not altered by Blakely.... Because the sentence enhancement was based on Stevenson's four prior convictions, the calculation of his sentence falls within the Almendarez-Torres exception to Apprendi. Furthermore, because the trial judge's consideration of evidence not proved to the jury constituted a discretionary decision not to decrease Stevenson's sentence, Apprendi is inapposite. Finding a defendant to be outside the "spirit" of the Three Strikes law is a mitigating factor in sentencing, rather than a prerequisite to imposing an enhanced sentence. Thus, the trial judge's consideration of facts not proved to a jury did not offend Stevenson's constitutional rights under Apprendi, and habeas relief is unavailable. Accordingly, the district court did not err in dismissing Stevenson's Apprendi claim.

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UPDATE: Proving how interestingly diverse these sentencing stories can be from state to state, I also just discovered on Lexis a ruling from Pennsylvania which suggests its Three Strikes law may have Blakely problems. In Commonwealth v. Guilford, 2004 Pa. Super. LEXIS 3920 (Pa. Super. Nov. 1, 2004), a Pennsylvania intermediate appellate court gives us this noteworthy dicta in a footnote:

We note that in light of the decision of the United States Supreme Court in Blakely v. Washington, 124 S. Ct. 2531 (2004), the provision of section 9714(a)(2) of the "three strikes" law, allowing imposition of a life sentence without parole where the sentencing court determines that "25 years of total confinement is insufficient to protect the public safety," is called into serious question.

November 2, 2004 at 12:49 PM

California hits triple digits!As of this evening, there are 103(!) California intermediate appellate cases on Westlaw discussing Blakely . I have not been able to keep up with all of these California decisions, and I am wondering if anyone is trying to track and assess all the California action. Also, I wonder if readers know when the two Blakely cases that were accepted for review by the California Supreme Court, Towne and Black, are scheduled to be argued.October 28, 2004 at 12:51 AM

California's messy Blakely landslidePerhaps it should come as no surprise that, in the wake of the Blakely earthquake, a landslide of opinions are flowing from the California appellate courts. I noted here last month how fast and furious the action is in California, and now there are on-line nearly 100 appellate court cases from California that discuss Blakely.And, as if the post-Blakely world in California was not messy enough, a reader highlighted today that Blakely has led to some noteworthy in-fighting among one appellate division. In People v. Eugene, D044043 (Cal. App. Ct. Oct. 25, 2004), and People v. Wagener, D042896 (Cal. App. Oct. 22, 2004), different panels of the same court split in very vocal ways over whether California's sentencing scheme is constitutional after Blakely.As detailed here, briefing is far along in the two cases, People v. Towne and People v. Black, that the California Supreme Court is using to examine Blakely issues. Obviously, to bring greater order to California sentencing, decisions in these cases cannot come soon enough.October 26, 2004 at 12:55 AM

Close enough for government workState appellate courts have, perhaps unsurprisingly, endeavored to minimize the impact of Blakely by finding clever ways to affirm previously-imposed sentences even when Blakely issues are implicated. Many of these affirmances are coming from California, though other states are following suit.

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For example, in People v. Vaughn, 2004 WL 2223299 (Cal. App. 2 Dist. Oct. 05, 2004), the court affirmed an enhanced sentence by concluding that the judicial findings to support the enhancement were "inherent in the jury's verdict, and required no separate findings by the trial court." Meanwhile, in People v. Washington, 2004 WL 2202033 (Cal. App. 2 Dist. Oct. 01, 2004), the court affirmed an enhanced sentence because "three of the five factors in aggravation found by the trial court are not affected by Blakely and support selection of the upper term [and] there is no reasonable possibility that upon remand the trial court would exercise its discretion other than to again select the upper term." Similarly, in People v. Sylve, 2004 WL 2189339 (Cal. App. 2 Dist. Sept. 30, 2004), the court concluded that even giving "defendant the benefit of the argument as to whether Blakely prohibits several of the factors, this leaves us with two legitimate aggravating factors and no mitigation [and thus the] trial court was justified in imposing the upper term on the burglary count."And, showing that such affirmances are not only a California phenomenon, in State v. Shaw, 2004 Tenn. Crim. App. LEXIS 826 (Tenn. App. Sept. 28, 2004), the court in a similar way concludes that Blakely problems are of no ultimate consequence:

In sum, we conclude that enhancement factors (2) and (10) were appropriately applied under Blakely, but that the trial court erred in applying enhancement factors (9) and (11). We further conclude that the strong weight to which the trial court assigned the applicable enhancement factors more than justifies the enhanced sentence imposed. Accordingly, we affirm the twenty-four-year sentence.

October 6, 2004 at 11:39 PM

Now, the more intersting story...Though I still have pages and pages of undeveloped notes from yesterday's Booker and Fanfan argument, I have already worn myself out with the half-dozen posts about the event to be found below. Moreover, when all is said and done, I think the story of Blakely in the states is even more interesting (and often less discouraging) that the federal Blakely story. And, as is now true nearly every day, there are new state Blakely developments to report.Specifically, from North Carolina, today we get a Blakely reversal in State v. Harris, 2004 WL 2215184 (N.C. App. Oct. 05, 2004), in a case involving the imposition of an aggravted term based on a judicial finding that the defendant's offense was "especially heinous, atrocious, or cruel." From Minnesota, we get remands in two cases involving upward departures so that sentencing courts can consider the impact of Blakely. See Santiago v. Minnesota, 2004 WL 2221929, (Minn. App. Oct. 05, 2004); Minnesota v. Seelye, 2004 WL 2219663 (Minn. App. Oct. 05, 2004). And, of course, no week would be complete without a California Blakely cases from the state's intermediate court, and in People v. Gaitan, 2004 WL 2212089 (Cal. App. 1 Dist. Oct. 04, 2004) we get a thoughtful remand for resentencing on Blakely grounds.But the big state news today comes from Blakely's home state, Washington: an intermediate appellate court decision in State v. Van Buren, 2004 WL 2222263 (Wash. App. Div. 2 Oct. 05, 2004), makes an array of (interesting and debatable) rulings about what sorts of findings a judge can and cannot make under Blakely and Washington law. I hope to discuss the Van Buren case at some length later tonight.October 5, 2004 at 06:19 PM

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Still more from CaliforniaAs I highlighted before here, from California it is one Eureka moment after another on Blakely.

Already this weak there have been two more interesting and important cases from the biggest state (which has this interesting state seal).

In the unpublished People v. Herod, 2004 WL 2163532 (Cal. App. 2 Dist. Sept. 28, 2004), the court finds that Blakely applies to California determinate sentencing law, and then concludes that "facts relied on by the court to impose the upper term, while proper bases for an upper term, were not found true by the jury, nor were they admitted by appellant. Under Blakely, use of these facts to impose the upper term does not comply with the Sixth Amendment, resulting in an invalid sentence." But thereafter the court goes on to explain:

We reach a different conclusion as to the imposition of consecutive rather than concurrent sentences for the robbery counts, which involved separate crimes on separate occasions against separate victims.... The decision to impose a consecutive rather than concurrent sentence involves the cumulation of penalties for multiple crimes. The trial court is not required to make factual findings to support a decision to impose consecutive terms.

In the published People v. Butler, 2004 WL 2153559 (Cal. App. 1st Dist. Sept. 27, 2004), the court makes a finding of no waiver and then says the sentencing court "violated Blakely because four of the aggravating factors that it articulated ... did not relate to a prior conviction and ... were additional findings made by the court rather than by a jury." But then the court concludes that reversal was not required because appellant did not challenge the one prior-conviction-based aggravating factor and thus the same sentence was likely to be imposed. And in so doing, the Butler court also said: "We recognize that, in some cases, extrinsic facts relating to a recidivist aggravating circumstance may implicate Apprendi."

Helpfully, the fine folks at the First District Appellate Project have this terrific page which is tracking all the California happenings quite effectively.

UPDATE: Before the "ink" was even dry on this post, out comes People v. Armstrong, 2004 WL 2180926 (Cal. App. 2 Dist. Sept. 29, 2004), which concludes "Blakely requires reversal of defendants' upper term sentences and resentencing on those counts" and People v. Magdaleno, 2004 WL 2181412 (Cal. App. 2 Dist. Sept. 29, 2004), which holds that "neither Blakely nor Apprendi create the right to a jury trial on the determination as to whether to impose consecutive sentences."September 29, 2004 at 05:35 PM

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More California aftershocksI noted here that every time I log on there is another batch of noteworthy decisions from the California intermediate appellate courts. Proving my point, I return from my Toledo trip to find People v. Mallory, 2004 WL 2110084 (Cal. App. 2 Dist. Sept. 23, 2004), and People v. Barnes, 2004 WL 2137361 (Cal. App. 6 Dist. Sept. 24, 2004). Mallory, which is "nonpublished," reaches this brief but consequential conclusion: "pursuant to Blakely, consideration of the fact that the victim suffered great bodily injury and the fact that appellant's prior convictions were of increasing seriousness to enhance the sentence violates appellant's Sixth Amendment rights, and as a result the sentence is invalid." In contrast, Barnes is a (partially) published ruling which provides an extended examination of Apprendi and Blakely and waiver issues. Barnes is also especially noteworthy for the clever (and I think proper) way it reaches its conclusion "that defendant's sentence complied with Blakely as it was within the statutory maximum authorized by the jury's verdict and facts admitted by defendant." Though cross-case comparisons are not easy, the final analysis in Barnes seems similar to the analysis employed by US District Judge Connor in US v. Johns (discussed here).September 25, 2004 at 09:53 AM

So many California cases, so little timeCalifornia has definitely become the pace-setter for states dealing with Blakely issues. As noted here, California's Supreme Court even beat SCOTUS to the punch in granting review of a major Blakely issue (and the folks at the First Division Appellate Project now have this very helpful page collecting materials on both Blakely cases to be reviewed by the California Supreme Court). Moreover, it seems every time I log on to Westlaw or Lexis there is another batch of decisions of note from the California intemediate appellate courts. Just yesterday, three more interesting California decision were handed down, two of which found Blakely inapplicable to consecutive sentencing, see People v. White, 2004 WL 2106207 (Cal. App. 2 Dist. Sept. 22, 2004); People v. Park, 2004 WL 2106211 (Cal. App. 2 Dist. Sept. 22, 2004), and one of which summarily reversed a sentence as violative of Blakely, see People v. Butler, 2004 WL 2106213 (Cal. App. 2 Dist. Sept. 22, 2004).A Westlaw search reveals that there are already nearly 50 California cases on-line addressing Blakely claims or issues (though a number of these decision are technically "nonpublished"). And, as detailed here by Jonathan Soglin "splits of authority are developing in California on various Blakely-related questions, including which aggravating factors does Alamendarez-Torres control, and how waiver and prejudice work in the Blakely context."September 23, 2004 at 12:35 PM

More interesting state developments nationwideThough we all have lots of federal briefs to read, the state courts continue to work through an array of Blakely issues in an array of legal settings. For example, from Arizona yesterday we get an interesting decision in Aragon v.Wilkinson, 2004 WL 2093357 (Ariz. App. Sept. 21, 2004), which involved a "special action petition arguing that

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the trial court abused its discretion by granting the State's motion to withdraw from a plea agreement that the court had previously accepted." The State sought to withdraw the plea agreement because of concerns that Blakely would preclude the imposition of an enhanced sentence, and the trial court allowed the plea agreement to be withdrawn. But the Arizona appellate court decided it should:

grant relief by vacating the trial court's order, which permitted the State to withdraw from a plea agreement entered with Aragon and previously accepted by the court. In light of Blakely, the maximum sentence the court may impose absent jury findings must be based only on the facts admitted by Aragon. However, the court may convene a jury to find any facts supporting imposition of an aggravated sentence.

From Minnesota, we get another Blakely remand of an upward departure, see State v. Behr, 2004 WL 2093999 (Minn. App. Sept 21, 2004), as well as two cases which essentially avoid the issue of Blakely's retroactivity, see Davis v. State, 2004 WL 2093964 (Minn. App. Sept. 21, 2004); Morris v. State, 2004 WL 2094675 (Minn. App. Sept. 21, 2004). From Tennessee, in State v. Cooper, 2004 WL 2093262 (Tenn. Crim. App. Sept. 20, 2004), we get a Blakely remand in a DUI context.In California, we get another (unpublished) decision indicating that Blakely impacts the imposition of an upper-term sentence. See People v. Sidic, 2004 WL 2095547 (Cal. App. 2 Dist. Sept. 21, 2004). And in People v. Lemus, 2004 WL 2093427 (Cal. App. 4 Dist. Sept. 20, 2004), there is a bit of sparring over Blakely's applicability in California: the majority concludes that defendant Lemus' sentence is problematic after Blakely because "the trial court's decision to impose the upper term sentences was based on fact finding on matters not contained within the jury verdicts." But Judge Benke dissented on this point, contending that "California's sentencing scheme is entirely consistent with the principles discussed in Apprendi v. New Jersey and its progeny, Blakely."September 22, 2004 at 08:03 AM

Big Blakely rulings from the statesFederal courts have been relatively quiet on the Blakely front this week (perhaps because, as suggested here, federal judges are so busy sorting through piles of clerkship applications). But the state courts have been keeping Blakely busy; at least three consequential ruling from courts in California, Minnesota and Tennessee appeared on-line today: From California, the court in People v. George, 2004 WL 2051167 (Cal. App. 4 Dist. Sept. 15, 2004), held that Blakely precluded the imposition of an upper term sentence, and rejected the government's claims that the defendant has waived the issue and that any Blakely error was harmless. Here's some key language:

[B]ecause Blakely was decided after George's sentencing, George cannot be said to have knowingly and intelligently waived his right to a jury trial.... Under California's determinate sentencing law, where a penal statute provides for three possible prison terms for a particular offense, the court is required to impose the middle term unless it finds, by a preponderance of the evidence, that the circumstances in aggravation outweigh the circumstances in mitigation. The Attorney General argues that

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the imposition of an upper term sentence under the California determinate sentencing scheme is not the same as the imposition of a penalty beyond the standard range and thus does not implicate Blakely. The attempted distinction, however, is one without a difference. Although an upper term is a "statutory maximum" penalty in the sense that it is the highest sentence a court can impose for a particular crime, it is not necessarily the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," which is the relevant standard for purposes of applying Blakely....Here, the trial court relied on five aggravating factors as the basis for its decision to impose the upper term, to wit, that (1) the crime was serious and involved threats of great bodily injury to the victims; (2) the crime involved planning, sophistication and professionalism; (3) the current offense was more serious than the offense underlying George's prior conviction, which was itself serious; (4) at the time George committed the current offenses, he was on felony probation; and (5) George's prior performance on probation was poor.... [W]e conclude that the trial court was constitutionally entitled to rely only on the fact that George was on probation at the time of the charged offense as a basis for imposing an upper term sentence. Because this fact arises out of the fact of a prior conviction and is so essentially analogous to the fact of a prior conviction, we conclude that constitutional considerations do not require that matter to be tried to a jury and found beyond a reasonable doubt.... Thus, in accordance with the analysis of Blakely, the trial court was not required to afford George the right to a jury trial before relying on his status as a probationer at the time of the current offense as an aggravating factor supporting the imposition of the upper term.The Attorney General suggests that the propriety of this single factor as a basis for imposing an upper term sentence is sufficient to withstand George's constitutional challenge to the sentence.... [But] we cannot conclude that the elimination of four of the cited factors would not have made a difference in the court's sentencing decision here.... The matter is remanded for resentencing.

From Minnesota, the court in Minnesota v. Ingalls, 2004 WL 2050533 (Minn. App. Sept. 14, 2004), reserves the imposition of a "double-upward departure imposed by the district court." The court's ruling gets right to the point: "Like the sentencing departure in Blakely, the upward departure in this case is not based solely on facts reflected in a jury verdict or admitted by appellant; it is based on the district court's determination that aggravating factors were proved. Because the district court could not have considered whether basing appellant's sentence on these factors is permissible under Blakely, we remand for reconsideration of appellant's sentence in light of Blakely."From Tennessee, the court in State v. Syler, 2004 WL 2039809 (Tenn. Crim. App. Sept. 13, 2004), explains that, though Blakely was "not raised by either party, we are constrained to address the Defendant's sentence in light of Blakely." And the impact is consequential:

The Blakely decision calls into question the validity of Tennessee's sentencing scheme, insofar as that scheme permits trial courts to increase a defendant's presumptive sentence based upon enhancement factors found by the trial judge.... The presumptive sentence for a standard offender convicted of a Class A felony is twenty years.... Here, the Defendant was sentenced to twenty-one years for each of his Class A felonies, one year above the

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presumptive sentence, based upon several enhancement and mitigating factors found by the trial court at the sentencing hearing.... The trial court enhanced the Defendant's sentences for the Class A felonies on the bases that the victim was "particularly vulnerable because of age or physical or mental disability," and the Defendant "abused a position of public or private trust." Tenn. Code Ann. § 40-35-114(5), (16). Neither of these enhancement factors is reflected in the jury's verdict, nor was either factor admitted by the Defendant. Pursuant to Blakely, the trial court's enhancement of the Defendant's sentences on these bases was therefore erroneous. See State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL 1607002, at *10 (Tenn.Crim.App., Knoxville, July 19, 2004) (holding that the rule in Blakely precludes application of enhancement factors (5) and (16) where they have not been submitted to the jury and have not been admitted by the defendant).Pursuant to Blakely, the Defendant's sentences for his Class A felonies should not have been increased above the statutory presumptive sentence based upon statutory enhancement factors (5) and (16). Accordingly, we reduce the Defendant's sentences for his two Class A felonies from twenty-one years to twenty years.

September 15, 2004 at 10:06 PM

Limiting the impact of Blakely in CaliforniaJust as most of the federal circuit courts seem to be doing their best to limit the Blakely fallout in the federal system (at least until Booker and Fanfan are decided), the California intermediate appellate courts are working hard to keep Blakely from disrupting too many California sentences. The latest case in point is People v. Sample, 2004 WL 2027285 (Cal. App. 3 Dist. Sept. 13, 2004), in which the court asserts on every possible ground that the defendant's Blakely claim is unavailing:

Defendant did not raise an Apprendi objection in the trial court, and factors used in imposing the upper term and consecutive sentencing were uncontested at trial and supported by overwhelming evidence. Hence, defendant is barred from raising the claim of Apprendi/Blakely error. In any event, the rule of Apprendi and Blakely does not apply to California's consecutive sentencing scheme, and imposition of the upper term here was harmless beyond a reasonable doubt.

Similarly, in two unpublished opinions last week, two different California intermediate appellate courts gave the "prior conviction" exception a broad reading and application to affirm sentences that are arguably Blakely problematic. See People v. Bushnell, 2004 WL 2011414 (Cal. App. 2 Dist. Sept. 10, 2004); People v. Som, 2004 WL 1966058 (Cal. App. 3 Dist. Sept. 07, 2004). Among other realities, these decisions highlight the mess that Blakely has created for state sentencing systems. They also spotlight the question of whether state courts will be able to effectively clean up state Blakely messes on their own, or will need the Supreme Court to soon

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address issues like the "prior conviction" exception and the applicability of Blakely to consecutive sentencing in order to bring order and normalcy back to state sentencing.September 14, 2004 at 08:17 AM

More thoughtful California analysisWith great thanks to Jonathan Soglin at Criminal Appeal who first reported the news here, yesterday there was another important Blakely decision from a California intermediate appellate court in People v. Ochoa, no. D042215 (Cal. App. (4th Dist.), Sept. 2, 2004). In Ochoa, the court spoke thoughtful to the question of waiver and also concerning the applicability of Blakely to fact-finding by judges to support the imposition of imposing consecutive sentences.On the waiver issue, the Ochoa court sensibly concluded that "because Blakely was decided after Ochoa's sentencing hearing, Ochoa cannot be said to have knowingly and intelligently waived any right to a jury trial relating to the imposition of a consecutive sentence by failing to raise such an objection at the hearing." On the judge's imposition of consecutive sentence, the Ochoa court emphasized the discretionary nature of the decision to impose consecutive sentence under California law:

[A]lthough there certainly is broad language in Blakely that could be interpreted to support the existence of a jury trial right in the face of any factual finding that affects the length of the sentence imposed, neither Blakely nor the cases that preceded it establish the right to a jury trial in connection with the imposition of consecutive sentences and in fact those cases suggest that a contrary conclusion applies in that context. The United States Supreme Court has repeatedly recognized that a court may constitutionally exercise discretion in imposing sentence, and in doing so may consider various factors relating to the offense and the offender, provided that the sentence is "within the range provided by statute" for the charged offense....This analysis applies here. Under California law, when a person is convicted of two or more crimes, the trial court has the discretion to impose the sentence on the subordinate counts consecutively or concurrently.... In light of the jury's finding (or the defendant's admission) of guilt on the charged offenses, the imposition of consecutive sentences does not exceed the statutory maximum penalty for those offenses and thus does not contravene the holding in Blakely.

September 3, 2004 at 06:49 AM

First official Blakely reversal in CaliforniaAs Jonathan Soglin reports here over at Criminal Appeal, the first "official" California Blakely reversal happened yesterday in People v. Perry, No. A104398 (Cal. Ct. App. Aug. 31, 2004). The case involved the imposition of a four year upper-term sentence after defendant's guilty plea to "infliction of corporal injury to a cohabitant resulting in a traumatic condition." The court explained:

In this case, the trial court imposed the aggravated term based on the following factors: (1) "the defendant was armed with or used a weapon at the time of the commission of the

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offense;" (2) "the defendant has engaged in violent conduct which indicates he’s a danger to society;" (3) "his prior convictions as an adult are numerous and of increasing seriousness;" (4) "he was on a grant of summary probation at the time this crime was committed;" (5) "the defendant’s prior performance on summary probation has been unsatisfactory." Because under Blakely, at least four of these five factors must be determined by a jury, we conclude the trial court erred.

In expanding upon this conclusion, the court interestingly speculated on the scope of the "prior convictions" exceptions for purposes of applying factor (3) above. But then the court, after explaining its review standards, held that reversal was still required:

We need not decide whether the trial court (rather than the jury) may, after Blakely, find that defendant's crimes were of increasing seriousness, because we cannot determine, from this record, whether the four improper factors were "determinative" for the trial court. To put it another way, we cannot determine whether the trial court would have imposed the upper term based solely on defendant's increasing criminality.

Jonathan Soglin, who surely knows California law much better than I do, comments that if the California Supreme Court "follows this approach, and it should, reversals are likely in many other cases." September 1, 2004 at 09:36 AM

Consecutive questions about consecutive sentencingAs I have suggested before here and here, the "prior conviction" exception should be — and perhaps through Shepard v. US will be — the next major Blakely issue for the Supreme Court to address after they resolve in Booker and Fanfan the applicability of Blakely to the federal guidelines. But two cases from the California state courts yesterday highlight that the issue of Blakely's applicability to judicial imposition of consecutive sentences will need to be directly addressed soon, too.In People v. Vue, 2004 WL 1922504 (Cal. App. 3d Dist. Aug. 30, 2004), and People v. Lopez, 2004 WL 1922844 (Cal. App. 6 Dist. Aug 30, 2004), two different intermediate California appellate courts amended opinions to reject Blakely-based attacks on the imposition of consecutive sentences. Interestingly, in both cases the court said that, even if Blakely applies to factors used to impose consecutive sentences, the defendants' claims would be unavailing because of facts established at trial or admitted in a plea. Whatever one thinks of the specifics of these interesting rulings, they are a reminder of another important "Blakely front." (Recall that the California Supreme Court has agreed to consider this specific question in People v. Black, discussed here, though I suspect rulings in various states that will struggle with this question may not all end up consistent in their interpretations of Blakely and the Sixth Amendment.)August 31, 2004 at 10:08 AM

Blakely news from CaliforniaOne of my exciting Blakely questions for week (details here) was whether there would be any big Blakely news from the states. Though I am not sure the California intermediate appellate court

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decision in People v. Vonner, 2004 WL 1813998 (Cal.App. 2 Dist. Aug. 16, 2004), qualifies as big news, it is worth noting. Consider the opinion's first paragraph:

Contrary to the numerous contentions in the deluge of supplemental briefs now being filed in the California Appellate Courts, it is not at all clear that the United States Supreme Court opinion in Blakely v. Washington has sounded the death knell for California sentencing laws. It remains to be seen whether the Determinate Sentencing Law has been bruised, battered, or born into a better world. Here we only conclude that Blakely does not impact a sentencing court's imposition of a full consecutive sentence for an enumerated violent sex offense. (Pen.Code, § 667.6. subd. (c).)

Here's how the court in Vonner explains the defendant's Blakely/Apprendi argument and the court's rejection of that argument:

Citing Blakely, appellant contends that the trial court erred in imposing a full consecutive six year term on count 2 (forcible lewd conduct) after selecting the midterm six year sentence for lewd act on a child committed several weeks before count 2. Appellant asserts that a consecutive sentence is tantamount to an Apprendi "enhancement." We disagree. [We have] explained that section 667.6 is an alternate sentencing scheme, not an enhancement. It does not increase the penalty beyond the prescribed statutory maximum. "Apprendi is relevant only where a judge-made factual determination increases the maximum statutory penalty for the particular crime...." (People v. Cleveland (2001) 87 Cal.App.4th 263, 271.) That did not happen here.Here the guilty verdicts subjected appellant to consecutive sentencing which the trial court was authorized to impose. The sentence was not based on any "fact" that the trial court found. The decision was based on the guilty verdicts and the statutory discretion given to the trial court by the Legislature. Appellant received less than the prescribed statutory maximum. He could have received a 16 year sentence.Assuming, arguendo, that Blakely has some application in this context, any assumed error is harmless beyond a reasonable doubt. The jury found appellant guilty of forcible lewd conduct and lewd conduct. Although not required, it is undisputed that the offenses were committed weeks apart. Partial reversal for some type of new trial on the question of consecutive sentences would not be authorized by law and would be an exaltation of form over substance. Moreover, we ask, what fact would the jury be instructed to find which could serve as a predicate to the imposition of consecutive sentences?

August 17, 2004 at 11:59 AM

Second Thoughts in California’s Fifth DistrictAs discussed in this effective law.com article, California's Fifth Appellate District Court of Appeal yesterday substantially modified the standing order it entered last week (background here), which stated that the court would "no longer compensate appointed counsel for research or briefing directed to any issue presented by Blakely v. Washington." The Fifth District's modified order, which has somewhat mollified defense counsel concerned about safeguarding their client's rights and can be accessed here, states:

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Pending opinions by the California Supreme Court in People v. Towne (review granted Jul. 14, 2004, S125677), and People v. Black (review granted Jul. 28, 2004, S126182), if appellate counsel wishes to raise any issue presented by Blakely v. Washington (2004), he or she may file a letter consistent in form with the attached “Supplemental Argument Pursuant to Standing Order No. 04-1,” thereby preserving the issues for further state and federal review. Counsel need not file an application for leave to file the supplemental statement.... The purpose of this order is to ensure that the subject issues will be raised and preserved for review in an efficient manner.

August 12, 2004 at 09:40 PM

Blakely-coping, California styleAs if the day was not already mind-boggling enough, a reader from California was kind enough to send along news of this startling Standing Order that was recently entered by the Fifth District California Court of Appeal. The Order clearly is an effort to cope with (or perhaps just duck) Blakely issues until the California Supreme Court addresses Blakely's California meaning in two cases already slated for review. (Those two California cases are People v. Towne (background here), and People v. Black (background here). Here's the full text of the Standing Order:

Effective August 3, 2004, this court will no longer compensate appointed counsel for research or briefing directed to any issue presented by Blakely v. Washington (2004), pending opinions by the California Supreme Court in People v. Towne (review granted Jul. 14, 2004, S125677), and People v. Black (review granted Jul. 28, 2004, S126182). However, if counsel or appellant wishes to raise a Blakely issue in any case pending before this court, he or she may file a letter stating with precision the Blakely issue[s] he or she wishes to raise on the appellant’s behalf and this court will deem such issue[s] raised, thereby preserving the appellant’s ability to seek review of the issue[s] in the California Supreme Court. The failure to identify an issue by a letter will operate as a waiver. The People, through the Attorney General, need not file any response to such a letter statement and the court will deem the stated issue[s] to be opposed by the People.The Court may request further briefing in any case and will reevaluate this order after the California Supreme Court rules in Towne and Black. This order does not apply to any pending appeal in which this court has ordered or authorized, on or before August 2, 2004, specific briefing on a Blakely issue. The purpose of this order is to ensure that the subject issues will be raised and preserved for review in an efficient manner.Dated: August 2, 2004 DIBIASO, ACTING P.J.

I am not sure whether to decry this order as unconstitutional or praise it as brilliant. It does reinforce for me the enormous challenges courts face trying to sort compelling Blakely claims from frivolous ones. I am not sure this Standing Order — with its slightly hidden "waiver" threat — is a sound (or even legally permissible) sorting mechanism. But I am not surprised to see a court looking for life preservers in the face of a tidal wave of Blakely claims.

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August 5, 2004 at 08:33 PM

Another fascinating Blakely frontPart of what makes Blakely such a big deal is that there seems to be no limit to the arenas and settings in which Blakely issues might arise. We get more evidence of this fact from California today, where in People v. Sykes, a California Court of Appeal had to confront a defendant's claim that, under Blakely, "he was entitled to a jury trial as to those factors which determine whether consecutive sentences may be imposed [because an applicable statute] grants trial courts the authority to impose consecutive sentences" in certain situations. In other words, the defendant in Sykes argued under California law "that the United States Supreme Court’s holding in Blakely requires that a jury, not a judge, find whether the factors which warrant consecutive sentencing are present."The Court of Appeal ultimately rejects the defendant's claim, saying:

Neither Blakely nor Apprendi purport to create a jury trial right to the determination as to whether to impose consecutive sentences. Both Blakely and Apprendi involve a conviction for a single count. The historical and jurisprudential basis for the Blakely and Apprendi holdings did not involve consecutive sentencing.... [T]he consecutive sentencing decision can only be made once the accused has been found beyond a reasonable doubt to have committed two or more offenses—this fully complies with the Sixth Amendment jury trial and Fourteenth Amendment due process clause rights. Those facts which affect the appropriate sentence within the range of potential terms of incarceration for each offense are subject to Blakely and Apprendi; this constitutional principle does not extend to whether the sentences for charges which have been found to be true beyond a reasonable doubt shall be served consecutively.

Though I am not an expert on California law, these conclusions certainly seem debatable. And, notably, we now have word that these conclusions will be debated by the California Supreme Court, which today granted review of just this issue. Specifically, in People v. Black, the California Supreme Court has now asked the parties to brief the following questions:

(1) What effect does Blakely v. Washington (2004) 124 S.Ct. 2531 have on the validity of defendant's upper term sentence? (2) What effect does Blakely have on the trial court's imposition of consecutive sentences?

July 28, 2004 at 06:05 PM

More Blakely insights for CaliforniansNow available on the Blakely page assembled by the Appellate Defenders, Inc. is this helpful memo, entitled "The Application of Blakely v. Washington to California Courts" and prepared by Superior Court Judges J. Richards Couzens and Tricia A. Bigelow.The memo advises California's courts of potential sentencing issues raised by Blakely, and suggests a reasonable course of action to address the potential effect of the decision pending further analysis by California's appellate courts.

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July 28, 2004 at 02:07 PM

California dreaming…I am planning on getting a good night of sleep tonight, and perhaps I'll be dreaming about the California Supreme Court's ability to get right to work on the Blakely issue. Here's my prior post discussing People v. Towne, the first case in which Blakely issues will be examined by the California Supreme Court. At first, based on a read of the lower court opinion, it was hard to figure out whether Towne was going to present the Blakely issue cleanly. Helpfully, additional information --- particularly this supplemental letter containing points and authorities in support of the defendant's argument for a reversal of his sentence to the upper term --- suggests that Towne should be a very interesting and effective case for state consideration of Blakely. Also helpful and interesting is this article giving background on the case.Finally, it is worth highlighting that the fine folks at the First District Appellate Project now have a host of additional California-specific briefs/petitions on their fine FDAP Blakely Page.July 16, 2004 at 06:35 PM

Action by the Supreme Court (of California)Showing how fast it can move, the Supreme Court of California today granted a petition for review in People v. Towne, as noted here, and in so doing stated:

In addition to the issue raised in the petition for review, the parties shall address the following issues: (1) Does Blakely v. Washington (June 24, 2004) __ U.S. __ [2004 WL 1402697] preclude a trial court from making the required findings on aggravating factors for an upper term sentence? (2) If so, what standard of review applies, and was the error in this case prejudicial?

My instinct is to praise the Supreme Court of California for taking on Blakely so quickly. However, it might be argued that the Supreme Court of California ought to let lower court hash through some of these issues a bit first. Moreover, as Jonathan Soglin over at Criminal Appeal discusses briefly, the factual setting and legal issues raised in People v. Towne make the case pretty complicated. The unpublished court of appeals decision below is primarily focused on whether the trial court "abused its discretion by imposing the upper term and doubling it after refusing to" strike a prior conviction (a discretion that the California Supreme Court found provided in state law in People v. Superior Court (Romero), 13 Cal.4th 497 (1996). However, in the decision's final paragraph, the lower court stated:

Additionally, the trial court did not abuse its discretion by imposing the upper term. Contrary to appellant’s claim, the jury’s necessary findings on the acquitted counts did not conflict with the court’s findings. The court was well aware of the jury’s findings, acknowledged the victim lied and observed that the jury had been able to weigh the evidence and make credibility findings in reaching its verdicts. Moreover, even if there

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had been error, it would have been harmless. “A single factor in aggravation will support imposition of an upper term. [Citation.] ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’ [Citation.]” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) [Footnote 3: Further, the trial court could have used as reasons that appellant had served prior prison terms, his prior performance on probation or parole was unsatisfactory and that he was on parole at the time of the current offense. (See People v. Steele (2000) 83 Cal.App.4th 212, 227.)]

I believe that it is this portion of the opinion that is prompting the Supreme Court of California Blakely question, but it would seem that there are a number of interwined issues concerning the operation of discretion and the impact of prior convictions in the decision to impose an "upper term sentence." Perhaps Californians (or others) can use the comments to discuss whether Towne can or likely will be a good case for the Californias courts to start clearing up emerging Blakely issues in California law. July 14, 2004 at 09:46 PM

More Blakely resources for Californians and othersThe folks at The First District Appellate Project (FDAP), a non-profit law office located in San Francisco, deserve much credit for already providing the most detailed and effective resources on the potential impact of Blakely. Though the two great memos they have already posted here are only focused on what Blakely means for California state cases, their analysis and their plans to provide sample brief should be of great help to folks trying to deal with Blakely issues throughout the country. Keep up the good work, FDAP.July 1, 2004 at 08:53 AM

Colorado

Another notable Blakely case in ColoradoI am just back from talking about Blakely in Dayton, and later tonight I hope to share a number of the interesting points raised by the federal criminal justice practitioners at this event. But in the meantime, thanks to Howard Bashman at How Appealing, I see there is another notable state Blakely ruling from Colorado. Today, in Colorado v. Barton, 03CA0793 (Colo. App. Ct. Dec. 16, 2004), the Colorado Court of Appeals on Blakely grounds reversed the twelve-year state prison sentence handed down to Terry Lynn Barton, who pled guilty to starting what is reported to be "the largest wildfire in Colorado history." This Denver Post article provides some of the details and the notable context.For prior Colorado Blakely developments, see:

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Mile High Blakely More big Blakely news from Colorado More Blakely news from Colorado

December 16, 2004 at 01:08 PM

More noteworthy state Blakely developmentsIt now seems that not a day goes by without a noteworthy state Blakely ruling coming on-line. This afternoon, I found at least three such cases in Strong v. State, 2004 WL 2481190 (Ind. App. Nov. 5, 2004), and People v. Fogle, 2004 Colo. App. LEXIS 2004 (Colo. App. Nov. 4, 2004), and People v. Hogan, 2004 Colo. App. LEXIS 2001 (Colo. App. Nov. 4, 2004). (There are also, no doubt, a number of recent additional noteworthy California cases, but I have given up trying to keep up with doings there now that over 125 on-line Blakely cases come from that state alone!)As seems often to be the case with state Blakely decisions, Strong and Fogle and Hogan all reach noteworthy legal conclusions while being rich with too many details and dicta to effectively summarize (especially on a Friday afternoon at the end of a tiring week). I hope it suffices to note that Strong reverses a sentence on Blakely grounds and you can read more details at INCourts here. Meanwhile, Fogle and Hogan affirm sentences over Blakely objections: Fogle is based on a seemingly shaky conclusion the court could "properly treat counsel's statements as an admission by defendant" to hold that "defendant admitted the fact on which his enhanced sentence was based;" Hogan seems grounded more solidly on the conclusion that enhancement of the defendant's sentence did "not require proof of any fact other than the elements of kidnapping-robbery and aggravated robbery, which were necessarily proved beyond a reasonable doubt, as [was] apparent from the jury's verdict."November 5, 2004 at 05:11 PM

More Blakely news from ColoradoAs detailed here and here, Colorado has been struggling with Blakely, and the Colorado Supreme Court already has plans to examine whether Colorado's sentencing scheme can survive Blakely in the case of Lopez v. Colorado, No. 04SC150. Adding to the story today is a decision by the Colorado Court of Appeals in Colorado v. Moon, 03CA1107 (Colo. App. Oct. 21, 2004).Moon includes a thoughtful exploration of similarities and differences between the Washington sentence scheme at issue in Blakely and Colorado's sentencing structures. And the analysis culminates with the conclusion that Blakely impacts at least portions of Colorado's sentencing system:

[W]e conclude that the statutory maximum for purposes of applying Apprendi and Blakely is the maximum in the presumptive range. We further conclude that a sentence in the aggravated range under § 181.3401(6) violates the Sixth Amendment right to trial by jury, unless the facts found by the trial court to support the sentence, including the ultimate finding that these facts are extraordinary: (1) are reflected in the jury’s verdict; (2) were admitted by the defendant for purposes of sentencing; or (3) involve prior criminality, to the extent permitted by Apprendi.

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October 21, 2004 at 01:12 PM

More big Blakely news from Colorado

As noted here, the Colorado Supreme Court earlier this week announced its intention to examine whether Colorado's sentencing scheme can survive Blakely. As that court gears up for this issue, a Colorado intermediate appellate court in People v. Solis-Martinez, 2004 WL 2002525 (Colo. App. Sept. 09, 2004), has now officially identified Blakely problems in the operation of Colorado's sentencing provisions.The court in Solis-Martinez, after providing a brief account of Colorado's sentencing statutes, explains how the case facts raise a Blakely problem and how waiver claims cannot remedy that problem:

Here, in imposing the sixteen-year sentence [following the defendant's guilty plea to criminally negligent child abuse], the trial court relied on its findings that the child was in extreme pain for a long time, that defendant waited so long to take the child to the doctor, that she punished the child because of her circumstances, and that she had continually lied about the events leading to the child's injuries. The court further recorded its findings supporting the aggravated range sentence in a written supplement to its sentencing order that reflected in more detail the information that appeared in the presentence investigation report. However, under Apprendi and Blakely, a sentence beyond the relevant statutory maximum may be imposed only if a jury has determined the aggravating factors or the defendant has admitted them. In so concluding, we disagree with the People's contention that defendant waived the right to a jury determination of the aggravating factors by pleading guilty to the charged offense. No aggravating factors were charged in the information, and defendant did not stipulate to any. She was not advised that she had a right to have a jury determine any aggravating factors. Therefore, her guilty plea cannot be interpreted as a waiver of her right to have a jury determine factors exposing her to greater punishment than otherwise authorized by the sentencing statute.

September 10, 2004 at 01:16 AM

Mile High BlakelyThough I have note yet seen a lower court opinion from Colorado grappling with Blakely's meaning for that state, this Denver Post article long ago blared in its headline that the Blakely "Ruling Could Nullify Sentences in Colorado." And now a thoughtful reader reports that the Colorado Supreme Court today announced its intention to examine whether Colorado's sentencing scheme can survive Blakely in the case of Lopez v. Colorado, No. 04SC150. According to the e-mail I received:

This case on which it granted certiorari deals with the mandatory aggravating factors of the defendant's being on parole, in prison, or an escapee from prison at the time of the crime. (In Colorado, the law sets a "presumptive sentencing range." The trial court may

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sentence the defendant to twice the maximum of this range if the court finds mandatory aggravating facts listed in the statute, or the court, in its discretion, finds other "extraordinary aggravating circumstances" that are not listed in the statute.)

While I ponder whether it is funny to describe the Colorado Supreme Court as the (Mile) High Court, you can read below the text of the court's order:

Whether Blakely v. Washington, 541 U.S. __, 124 S. Ct. 2531 (June 24, 2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000) prohibit the aggravation of petitioner's sentence because the statutory enhancement factors, defined in section 18-1-105(9)(a)(II) and section 18-1-105(9)(a)(V), were never charged in an information nor pled to by petitioner.

September 7, 2004 at 07:34 PM

Delaware

So many more state Blakely rulingsThe noteworthy Blakely rulings from state courts continue to come in at a fast and furious pace (see here for more recent evidence). Already this week alone, we have more consequential rulings from Indiana, Ohio, New Jersey and Washington (and, of course, the obligatory weekly collection from California). Also, just on line is an important Delaware ruling from last week. Though all of these decisions deserve fuller discussion, today the best I can reasonably do is provide summary highlights. I encourage readers to use the comments to note any exceptional features of these cases that merit spotlighting:

In Benge v. State, 2004 Del. LEXIS 506 (Del. Nov. 12, 2004), the Delaware Supreme Court declared "Blakely does not impact Delaware's sentencing scheme because the SENTAC guidelines are voluntary and non-binding."

In Lampitok v. State, 2004 WL 2590817 (Ind. App. Nov. 16, 2004), the court drops a footnote to give the "prior conviction" exception a broad application (INCourts provides more details here);

In State v. Berry, 2004 WL 2580555, 2004-Ohio-6027 (Ohio App. 12 Dist. Nov. 15, 2004), the court articulates two bases on which the court claims Ohio's sentencing system completely escapes the application of Blakely;

In State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004), the court concluded New Jersey's presumptive sentencing scheme is generally impacted by Blakely (and, again, INCourts covers the highlights here);

In State v. Alkire, 2004 WL 2580772 (Wash. App. Div. 1, Nov 15, 2004), the court upholds a sentence based on the "prior conviction" exception (and does despite the fact the defendant's "invites this court to abandon the 'crumbling foundation' of Almendarez-Torres and the prior conviction exception").

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And, for continuing coverage of the continuing stream of California cases, remember that the First District Appellate Project is here keeping up with recent major rulings, and Jonathan Soglin here notes a California published opinion that apparently breaks a little new ground.November 18, 2004 at 09:25 AM

Nationwide Blakely developments in the statesThough today's non-arrival of Booker and Fanfan keeps the federal Blakely story on hold, the state Blakely stories continue to develop at a fast and furious pace:

Michael Ausbrook has a long and thoughtful post here on recent decisions from Indiana which may presage what the Indiana Supreme Court might do with the Blakely cases it is considering tomorrow. And, in the Indiana intermediate appellate courts, a decision today, Teeters v. State, 2004 WL 2521386 (Ind. App. Nov. 09, 2004), relies on the "prior conviction" exception and other means to affirm a sentence over Blakely objections.

The Minnesota Sentencing Guidelines Commission details here its plans for a meeting next month "to consider proposed modifications to the sentencing guidelines and commentary resulting from the recent U.S. Supreme Court decision Blakely v. Washington." The proposed modifications include "changes to the procedures for imposing aggravated departures, modifications to the consecutive sentencing provisions, modification to the sentencing grid and proposed ranking of unranked offenses."

The Delaware Sentencing Accountability Commission has here (scroll down) a brief discussion of the Delaware Supreme Court's decision in Fuller v. State, No. 38 (Del. Oct. 29, 2004), which seems to indirectly suggest that Blakely may not be applicable to Delaware's voluntary sentencing guidelines.

And, of course, California's appellate courts keep hashing out Blakely with now 137 Blakely-related opinions on-line. (Many of the most significant rulings are summarized here by the First Disrict Appellate Project in California.)

November 9, 2004 at 10:15 PM

Florida

Big Blakely news from sunny statesBig news from two newspaper reports of noteworthy Blakely rulings in sunny locales. First, this news story from Florida reports on a resentencing decision in which the judge concluded that Blakely precluded him from adding eight years to a sentence for attempted murder and aggravated child abuse. This is the first report I have seen of Blakely impacting sentencing in FloridaSecond, this news story from Hawaii indicates that a federal district judge granted a state defendant habeas relief last week on an Apprendi/Blakely claim. I will quote at length from the story, because this seems like an important ruling, but I cannot find the decision on-line:

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U.S. District Judge Susan Oki Mollway ruled last week that Wayman Kaua should receive a 20-year term after he was convicted of attempted manslaughter following the standoff, in which he fired more than 17 shots and left thousands of Pearl City residents stranded for about 22 hours....Mollway said the life term violated Kaua's federal constitutional rights because a state judge, not the jury, enhanced his sentence, from a maximum of 20 years he was facing for the conviction on attempted manslaughter and related counts, to life in prison....The jury rejected the attempted-murder verdict and convicted Kaua on lesser offenses of attempted manslaughter and other charges that ordinarily carry a maximum 20-year term. But at sentencing, Honolulu Prosecutor Peter Carlisle asked that Kaua's sentence be extended to the life term because he committed multiple offenses and the sentence would be "necessary for the protection of the public." Huddy granted the extended term. He said Kaua abused drugs and could not control his behavior when under the influence of drugs or under extreme stress. The state high court twice affirmed the sentence, the latest ruling coming in 2003. "The Hawai'i Supreme Court's conclusion that Kaua's extended sentence did not violate (the 2000 U.S. Supreme Court decision, Apprendi v. New Jersey) was contrary to, and involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court," Mollway wrote.

December 17, 2004 at 10:20 AM

Coast to Coast Blakely developments in the statesIn addition to the decision by the California Supreme Court to tackle Blakely in a pending appeal, Blakely issues are start to crop up in other state appellate decisions around the country. Here are two interesting examples.Florida: In the (hard to follow) case of Sigler v. Florida, 2004 Fla. App. LEXIS 10485 (4th Dist. July 14, 2004), a Florida intermediate appellate court explained that, before Apprendi and Blakely, the "Florida Supreme Court [had] construed [Florida code] section 924.34 to authorize appellate judges to make a finding of guilt as to each element of permissive lesser included offenses in place of a jury determination. See I.T. v. State, 694 So. 2d 720 (Fla. 1997)." The Sigler court then explains its view that:

[T]hese later decisions [of Apprendi and Blakely] make it clear beyond any doubt that section 924.34 as interpreted in I.T. is contrary to the Sixth Amendment when the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element of the permissive lesser included offense. That means that as for this circumstance we are expressly holding the statute invalid under the United States Constitution.

In other words, the Sigler court is finding a Sixth Amendment limit on appellate judge fact-finding as well as sentencing judge fact-finding.

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Tennessee: Meanwhile, in Tennessee v. Fuller, 2004 Tenn. Crim. App. LEXIS 626 (July 13, 2004), the court frankly asserts that the "United States Supreme Court's recent opinion in Blakely v. Washington, 2004 U.S. LEXIS 4573 (2004), calls into question the continuing validity of our current sentencing scheme." Though the Fuller court then avoids finding a Blakely problem in the case at hand, it still seems noteworthy that the Tennessee courts already see problems with its sentencing schemes in light of Blakely.July 15, 2004 at 12:39 AM

Hawaii

Blakely's Hawaiian punchAs noted here yesterday, this week has been surprisingly full of noteworthy Blakely rulings. And perhaps the most significant Blakely decision comes from the 50th state, Hawaii, through the state Supreme Court's ruling in State v. Rivera, 2004 WL 2955940 (Hawai'i Dec. 22, 2004).http://sentencing.typepad.com/.shared/image.html?/photos/uncategorized/0haf.gif http:// sentencing.typepad.com/.shared/image.html?/photos/uncategorized/0haf.gifAs the Rivera decision details, Hawaii's history with sentencing reform is lengthy and intricate, stretching back to the mid-1960s. And, interestingly, well before the entire Blakely line of cases, the state had developed its own elaborate jurisprudence for determining which sentence-impacting facts must be alleged in an indictment and found by a jury. (This jurisprudence disinguishes between "intrinsic" and "extrinsic" facts and seems similar to the offense/offender distinction I propose in my "Conceptualizing Blakely" article.)After the US Supreme Court handed down Apprendi, the Hawaii Supreme Court decided in Hawaii v. Kaua, 72 P.3d 473 (Haw. 2003), that the state's extended term sentencing scheme, in which judges can enhance sentences based on findings about the need for "protection of the public," was still constitutional. However, as noted last week here, US District Judge Susan Oki Mollway earlier this month in Kaua v. Frank, Civ. No. 03-00432 (D. Haw. Dec. 9, 2004), held in a habeas action that defendant Kaua's extended sentence clearly violates Apprendi, and that the Hawaii Supreme Court decision in Kaua was "an unreasonable application of Apprendi." Despite the federal district court ruling, the Hawaii Supreme Court in Rivera has now again held, by a 3-2 vote, that the state's extended term sentencing scheme is constitutional. Though the majority's ruling, available here, is lengthy and complicated, the court seems to hold that Apprendi/Blakely is inapplicable both because Hawaii has an indeterminate sentencing system AND that because findings about "protection of the public" can fit within the "prior conviction" exception. Writing in dissent, which is available here, Justice Acoba asserts that Blakely requires reconsideration of the court's Kaua ruling and that Blakely now means that the Sixth Amendment is violated when a sentencing judge in Hawaii imposes an extended term based on solely the judge's findings.December 23, 2004 at 07:55 PM

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Big Blakely news from sunny statesBig news from two newspaper reports of noteworthy Blakely rulings in sunny locales. First, this news story from Florida reports on a resentencing decision in which the judge concluded that Blakely precluded him from adding eight years to a sentence for attempted murder and aggravated child abuse. This is the first report I have seen of Blakely impacting sentencing in FloridaSecond, this news story from Hawaii indicates that a federal district judge granted a state defendant habeas relief last week on an Apprendi/Blakely claim. I will quote at length from the story, because this seems like an important ruling, but I cannot find the decision on-line:

U.S. District Judge Susan Oki Mollway ruled last week that Wayman Kaua should receive a 20-year term after he was convicted of attempted manslaughter following the standoff, in which he fired more than 17 shots and left thousands of Pearl City residents stranded for about 22 hours....Mollway said the life term violated Kaua's federal constitutional rights because a state judge, not the jury, enhanced his sentence, from a maximum of 20 years he was facing for the conviction on attempted manslaughter and related counts, to life in prison....The jury rejected the attempted-murder verdict and convicted Kaua on lesser offenses of attempted manslaughter and other charges that ordinarily carry a maximum 20-year term. But at sentencing, Honolulu Prosecutor Peter Carlisle asked that Kaua's sentence be extended to the life term because he committed multiple offenses and the sentence would be "necessary for the protection of the public." Huddy granted the extended term. He said Kaua abused drugs and could not control his behavior when under the influence of drugs or under extreme stress. The state high court twice affirmed the sentence, the latest ruling coming in 2003. "The Hawai'i Supreme Court's conclusion that Kaua's extended sentence did not violate (the 2000 U.S. Supreme Court decision, Apprendi v. New Jersey) was contrary to, and involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court," Mollway wrote.

December 17, 2004 at 10:20 AM

Idaho

Blakely not a problem in IdahoThanks to a tip from a FOB ("friend of blog"), I can report on the first Blakely case that I know about from Idaho. Today, in Idaho v. Stover, No. 30313 (Idaho Jan. 6, 2005), the Idaho Supreme Court ruled that Blakely does not effect Idaho's "indeterminate sentencing system." Here's some key language from the opinion:

Idaho's sentencing scheme requires no findings of fact under I.C. § 19-2521... [and] the wording of the statute and Statement of Purpose plainly show these are true guidelines that merely suggest sentencing criteria for exercising the court’s discretion....

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Idaho’s review of sentences is under an abuse of discretion standard and is not dependent upon specific fact finding enforced statute. Additionally, Idaho has specified sentences that may be enhanced, i.e., I.C. § 19-2520, extended sentences for use of a firearm or deadly weapon. All of these enhanced sentence schemes for firearm, drug amounts or prior convictions are submitted to the jury as part of the crime and proven beyond a reasonable doubt.Throughout I.C. § 19-2521, there are references to the full discretion of the sentencing judge. Idaho Code § 19-2521(1) in dealing with aggravating sentencing issues leaves to the "opinion" of the district court as to whether imprisonment is appropriate. The legislative history and statutory language are clear in stipulating that the district court’s decision-making process should include a review of I.C. § 19-2521 criteria but the district court’s own discretion or opinion is the final authority. When looking at the mitigating factors of I.C. § 19-2521(2) the statute states the “grounds, while not controlling the discretion of the court, shall be accorded weight.”...Idaho’s sentencing scheme is unaffected by the holding in Blakely.

January 6, 2005 at 02:56 PM

Illinois

State Blakely cases ring in the new yearI joked here that I was waiting to see which court would be the first to issue a noteworthy Blakely ruling in 2005. Perhaps fittingly, the honor goes to the Washington state courts, which already has two new year Blakely rulings on-line: State v. Fero, 2005 WL 15171 (Wash. App. Div. 2, Jan. 04, 2005) and State v. Cartwright, 2005 WL 12021 (Wash. App. Div. 1, Jan 03, 2005). And, for those scoring at home, we also have on-line Blakely decisions from California and New Jersey this new year. See People v. Standifer, 2005 WL 15449 (Cal. App. 2 Dist. Jan. 04, 2005); State v. Vasquez, 2005 N.J. Super. LEXIS 4 (NJ App. Div. Jan. 4, 2005).The Fero case is the most notable of the bunch because it (1) reverses a sentence based on Blakely, (2) concludes that "the plain line of Apprendi, Neder, and Blakely, [establish that a Blakely violation] is a structural error and harmless error cannot apply," but (3) decides that the trial court may on remand "empanel a jury to consider aggravating factors without violating double jeopardy or the separation of powers." On the second point, one judge weighs in with a thoughtful "dissent from that portion of the opinion holding that Blakely violations are structural errors requiring automatic reversal." Significantly, as detailed here, an Illinois appellate court has also concluded that a Blakely error ought now to be viewed as structural error and not allow for harmless error analysis, although that court felt bound to conduct harmless error analysis because of rulings of its state Supreme Court. It is thus increasingly evident that the nature of Blakely error is another tough doctrinal issue that SCOTUS might need to resolve in the near future.January 4, 2005 at 11:27 PM

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Exploring the nature of Blakely error in IllinoisThis special thanks to the reader for sending the decision along, available for downloading below is what may be the first major Illinois Blakely decision, People v. Nitz, No. 5-98-0657 (Ill. App. Nov. 10, 2004). This case has a long, winding procedural history and involves Apprendi as much as Blakely. The decision gets interesting when the court explains its view that, after Blakely, the denial of Sixth Amendment rights ought now to be viewed as structural error and not allow for harmless error analysis. The court goes on to explain, however, that it feels it must nevertheless follow extant Supreme Court and Illinois precedent to the contrary:

Although we firmly believe that a majority of the justices on today's United States Supreme Court would never allow the harmless error analysis that we are about to engage in, that majority has remained silent about Neder v. United States, the case upon which People v. Thurow rests. The Illinois Supreme Court has declared that it is bound by the Neder decision in the absence of a United States Supreme Court opinion expressly overruling it. Given the position taken by our betters, we cannot forego a harmless error analysis. People v. Thurow says what it says, and absent an Illinois Supreme Court holding to the contrary or a United States Supreme Court decision that expressly overturns Neder v. United States, we are bound to follow People v. Thurow.

Download people_v. Nitz.doc November 16, 2004 at 12:22 AM

Indiana

Big reports from Indiana and MinnesotaI was planning to blog a bit less while at this conference, but there is just too much exciting stuff going on for me to stay away from the computer. Most notably today, I have received word of two (huge) reports on state sentencing from Indiana and Minnesota:

From Indiana, Marcia Oddi of Indiana Law Blog spotlight the state's recent "Final Report of the Sentencing Policy Study Committee" (which can be accessed here). The report runs a total of 142 pages(!), but has a helpful executive summary and seems packed with interesting information on a broad range of sentencing issues. And Marcia Oddi spotlights the Blakely parts in this helpful post, which details that the Committee is recommending statutory changes to "Blakely-ize" Indiana's sentencing system.

From Minnesota, we get the state's Sentencing Guidelines Commission's "2005 Report to the Legislature" (which can be accessed here). It is (only!) 80+ pages long, but has a helpful executive summary which reviews Blakely issues and the sex offender developments recently noted here. The report also covers, with both data and notable graphics, other state sentencing developments.

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January 6, 2005 at 09:13 PM

The state of Blakely in various statesThis morning's WSJ article (detailed here) provides a great review of the state of Blakely in the federal system, but I find the state of Blakely in the states an even more interesting and dynamic story. Indeed, as detailed in some of my recent posts on the topic, the state Blakely story is too fast-moving and dynamic for me to track comprehensively. (More background here and here and here.)Fortunately, there other folks covering the Blakely story in particular states, and I can just report and link to their efforts. Today I have helpful reports on Indiana, North Carolina and Texas.INDIANA: As noted before here, Indiana's Blakely story is being well-covered by state lawyers there, and now I see that Michael Ausbrook at INCourts has this post which reviews all the Indiana cases that mention Blakely and their current status.NORTH CAROLINA: This newpaper article provides a very effective review of the story of Blakely in North Carolina. The article also details that the a subcommittee of the NC Sentencing and Policy Advisory Commission "has recommended that aggravating factors and some issues related to prior records be submitted to a jury to determine if they exist."TEXAS: With great thanks to Scott Henson at Grits for Breakfast, I can provide a link to this terrific research brief from the Texas Senate Research Center reviewing the story of Blakely in Texas. Here is the astute conclusion of this effective report:

Because Texas does not have the sort of determinate sentencing guidelines used by the State of Washington or the federal government, Blakely will not significantly impact Texas law. However, there are specific statutes in the Code of Criminal Procedure that authorize a judge to make an affirmative finding of fact that may be used to increase the defendant’s punishment, but the statutes are not clear whether this affirmative finding must be based on facts proved beyond a reasonable doubt to the trier of fact. These and any similar statutes could be subject to challenge under Blakely.

December 28, 2004 at 11:07 AM

More holiday season state Blakely rulingsAs noted before, with all the major Blakely rulings early this month (some details here), I thought the holiday weeks might be quiet on the Blakely front. But, as detailed here and here, just the first few days last week brought more than a dozen state and federal appellate cases dealing with Blakely issues. In addition to the previously noted rulings here, a few more state Blakely decisions from last week recently came on-line with Patrick v. State, 2004 WL 2965848 (Ind. App. Dec. 23, 2004) (which is discussed at length here by Michael Ausbrook at INCourts) and also State v. Whatley, 2004 WL 2964710 (Tenn. Crim. App. Dec. 22, 2004). And today from the west coast today came State v. Clarke, 2004 WL 2980283 (Wash. App. Div. 1, Dec. 27, 2004) and People v. Brooks, 2004 WL 2980298 (Cal. App. 2 Dist., Dec. 27, 2004)December 27, 2004 at 10:31 PM

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Everything you wanted to know about Blakely in IndianaThough, as detailed here and here, I have given up tracking all state Blakely decisions, two Michaels continue to do great work tracking the story of Blakely in Indiana. As I have noted before, Michael Ausbrook over at INCourts covers the ins and outs of many Indiana Blakely rulings. And today I received from Michael Limrick (a former clerk to Justice Theodore Boehm of the Indiana Supreme Court) a copy of a draft article that will appear in the Jan./Feb. Indiana bar association magazine, Res Gestae. Michael calls the article, which can be downloaded below, "basically an update on what the Indiana Court of Appeals has done so far."Download limrick_on_blakely_in_indiana.doc December 21, 2004 at 05:21 PM

Fascinating "prior conviction" case from IndianaThough, as detailed here and here, I have given up trying to track comprehensively Blakely decisions coming from lower state courts, I still hope to spotlight state Blakely rulings that are particularly noteworthy or interesting. Today's decision from Indiana in Ryle v. State, 2004 WL 2857496 (Ind. App. Dec. 14, 2004), qualifies because of its thorough discussion of the scope of Blakely's "prior conviction" exception.I have done a lot of previous coverage of the "prior conviction" exception (examples here and here and here and here), and also more recently addressed generally criminal history issues. (These issues also intersect with the offense/offender distinction I champion in my Conceptualizing Blakely article.) Ryle incorporates all the issues of these prior posts in one ruling: the court affirms an enhanced Indiana sentence over Blakely objections based "Ryle's criminal history, which included two adult criminal convictions and four juvenile adjudications, and the fact that he was on probation at the time he committed the instant offense." The court, after a thorough review of recent case law (and noting some divisions of authority), concludes that "Ryle's enhanced sentence of forty-five years does not violate his Sixth Amendment rights:"

[T]he two aggravators identified by the trial court, namely, Ryle's criminal history, which includes juvenile adjudications, and the fact that he was on probation at the time he committed the instant offense are both proper under Blakely [because] those aggravators do not trigger the Blakely analysis.

As suggested in my prior posts, the Ryle court's conclusions are quite debatable. (Indeed, as noted here, appellate courts in Oregon last week came to a directly contrary conclusion concerning the scope of the "prior conviction" exception). Perhaps even more disconcerting, it seems somewhat unlikely the Supreme Court will resolve (or even speak to) this important issue concerning the scope of Blakely's "prior conviction" exception in Booker and Fanfan. Thus, we may have a very long wait for a definitive resolution of an issue that is of critical importance to the operation of most sentencing guidelines systems.December 14, 2004 at 05:25 PM

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More interesting state appellate Blakely decisions The Blakely work being done in the state appellate courts continues to be quite important and intriguing. Indeed, recent posts here and here and here and here highlight the breath and scope of all the recent state Blakely rulings. And more notable decisions this week come from Indiana and Tennessee intermediate appellate courts.

From Indiana, we get Trusley v. State, 2004 WL 2676537 (Ind. Ct. App. Nov. 24, 2004), which reaches various important conclusions (both directly and indirectly) in the course of remanding for resentencing because the defendant's "sentence was enhanced because of aggravating factors other than criminal history, which aggravating factors were not found by a jury or admitted by [the defendant]." As he does so well, Michael Ausbrook at INCourts here discusses this Indiana ruling in detail.

From Tennessee, we get State v. Wallace, 2004 WL 2671619 (Tenn. Crim. App. Nov. 23, 2004), which addresses at length and thoughtfully whether Blakely applies to a judicial decision to impose consecutive sentences. The court initially notes that "it may be logically argued that a consecutive sentence is a greater punishment than a concurrent sentence. If so, Blakely may require a jury's finding of facts, other than prior convictions, as a state law predicate for the imposition of consecutive sentencing." But the court goes on to read the Blakely line of precedents to indicate "that the due process and jury trial guarantees have no application to a judge's consecutive sentencing determination." Consequently, the Wallace court holds "once convictions and the lengths of individual sentences are determined, the judge is the arbiter of whether the sentences shall run concurrently or consecutively."

November 26, 2004 at 11:01 AM

So many more state Blakely rulingsThe noteworthy Blakely rulings from state courts continue to come in at a fast and furious pace (see here for more recent evidence). Already this week alone, we have more consequential rulings from Indiana, Ohio, New Jersey and Washington (and, of course, the obligatory weekly collection from California). Also, just on line is an important Delaware ruling from last week. Though all of these decisions deserve fuller discussion, today the best I can reasonably do is provide summary highlights. I encourage readers to use the comments to note any exceptional features of these cases that merit spotlighting:

In Benge v. State, 2004 Del. LEXIS 506 (Del. Nov. 12, 2004), the Delaware Supreme Court declared "Blakely does not impact Delaware's sentencing scheme because the SENTAC guidelines are voluntary and non-binding."

In Lampitok v. State, 2004 WL 2590817 (Ind. App. Nov. 16, 2004), the court drops a footnote to give the "prior conviction" exception a broad application (INCourts provides more details here);

In State v. Berry, 2004 WL 2580555, 2004-Ohio-6027 (Ohio App. 12 Dist. Nov. 15, 2004), the court articulates two bases on which the court claims Ohio's sentencing system completely escapes the application of Blakely;

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In State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004), the court concluded New Jersey's presumptive sentencing scheme is generally impacted by Blakely (and, again, INCourts covers the highlights here);

In State v. Alkire, 2004 WL 2580772 (Wash. App. Div. 1, Nov 15, 2004), the court upholds a sentence based on the "prior conviction" exception (and does despite the fact the defendant's "invites this court to abandon the 'crumbling foundation' of Almendarez-Torres and the prior conviction exception").

And, for continuing coverage of the continuing stream of California cases, remember that the First District Appellate Project is here keeping up with recent major rulings, and Jonathan Soglin here notes a California published opinion that apparently breaks a little new ground.November 18, 2004 at 09:25 AM

Still more state Blakely rulings of noteWith Booker and Fanfan apparently still weeks away, we fortunately have more than enough significant state developments to keep Blakely fans busy. Last week, for example, major Blakely decisions came from intermediate appellate courts in Arizona, Indiana, Oregon, and Tennesse (and, of course, California also contributed yet another dozen or so appellate court rulings involving Blakely issues).Because I am busy trying to write my testimony for the US Sentencing Commission's hearings this week, I can only provided a cursory overview of these state developments:

In Arizona v. Resendis-Felix, 2004 Ariz. App. LEXIS 165 (Ariz. Ct. App. Nov. 10, 2004), the court reverses and remands on Blakely grounds, and there is a very interesting dispute between the majority opinion and a concurrence concerning the nature and review of a Blakely error.

In Traylor v. State, 2004 Ind. App. LEXIS 2229 (Ind. Ct. App. Nov. 10, 2004), the court reverses an aggravated sentence on Blakely grounds; the highlights are here courtesy of INCourts.

In State v. Fuerte-Coria, 2004 Ore. App. LEXIS 1462 (Ore. Ct. App. Nov. 10, 2004), the court refuses to find (an unpreserved) Blakely error because it is not clear Blakely extends to the imposition of consecutive sentences on the basis of judicial findings.

In State v. Pierce, 2004 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Nov. 2004), the court reduced one part of the defendant's sentence on Blakely grounds, but upheld the imposition of consecutive sentences over a Blakely objection.

November 14, 2004 at 10:11 PM

Noteworthy news from the midwestI am having a grand time participating in this University of Chicago Legal Forum event. Introducing me before my keynote address, brilliant Chicago Dean Saul Levmore, speaking with enormous wit and wisdom, gently teased me for being too complementary and generous in my blog commentary. Meanwhile, as I am enjoying Chicago hospitality, others in the midwest are making Blakely news. The Seventh Circuit yesterday decided two Blakely cases: US v. Pittman, 2004 WL

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2567901 (7th Cir. Nov 12, 2004) (affirming career offender sentence based on prior conviction exception); US v. McKee, 2004 WL 2567902 (7th Cir. Nov. 12, 2004) (remanding for resentencing, though staying mandate). In addition, Michael Ausbrook over at INCourts continues his comprehensive coverage of Blakely in Indiana through a series of important posts.November 13, 2004 at 08:32 AM

Discussing Blakely in IndianaMichael Ausbook at INCourts continues his comprehensive coverage of Blakely in Indiana with this extended post which notes a new Blakely reversal and also reports at length about the oral arguments in the two Blakely-related cases heard this morning by the Indiana Supreme Court. (Preparing for the argument, Michael also put together this thoughtful post about Blakely waiver issues yesterday.)As detailed here, a group of prosecutors filed an amicus brief in which my forthcoming article "Conceptualizing Blakely" and its discussion of an offense/offender distinction plays a prominent role. Michael reports that at oral argument in the Indiana Supreme Court, the state's lawyer "spent some time on offense facts and offender characteristics." I am now especially looking forward to watching the webcast of the oral argument as soon as its gets archived here.UPDATE: The oral argument in Heath and Smylie is now available here, and it is very much worth watching. I have only had a chance to listen to the first portion before heading off to teach class, but I already got a chuckle when the very first comment from the bench was "Gosh there are so many questions to ask, it is hard to know where to start." It is remarkable to watch the Justices of the Indiana Supreme Court try to make sense of Blakely in light of Indiana's existing sentencing laws and precedents.November 10, 2004 at 11:53 AM

Nationwide Blakely developments in the statesThough today's non-arrival of Booker and Fanfan keeps the federal Blakely story on hold, the state Blakely stories continue to develop at a fast and furious pace:

Michael Ausbrook has a long and thoughtful post here on recent decisions from Indiana which may presage what the Indiana Supreme Court might do with the Blakely cases it is considering tomorrow. And, in the Indiana intermediate appellate courts, a decision today, Teeters v. State, 2004 WL 2521386 (Ind. App. Nov. 09, 2004), relies on the "prior conviction" exception and other means to affirm a sentence over Blakely objections.

The Minnesota Sentencing Guidelines Commission details here its plans for a meeting next month "to consider proposed modifications to the sentencing guidelines and commentary resulting from the recent U.S. Supreme Court decision Blakely v. Washington." The proposed modifications include "changes to the procedures for imposing aggravated departures, modifications to the consecutive sentencing provisions, modification to the sentencing grid and proposed ranking of unranked offenses."

The Delaware Sentencing Accountability Commission has here (scroll down) a brief discussion of the Delaware Supreme Court's decision in Fuller v. State, No. 38 (Del. Oct.

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29, 2004), which seems to indirectly suggest that Blakely may not be applicable to Delaware's voluntary sentencing guidelines.

And, of course, California's appellate courts keep hashing out Blakely with now 137 Blakely-related opinions on-line. (Many of the most significant rulings are summarized here by the First Disrict Appellate Project in California.)

November 9, 2004 at 10:15 PM

Friends in high placesWith many thanks to Michael Ausbrook of INCourts for the head's up, I was extremely pleased to discover that I apparently have readers and fans in the Indiana Prosecuting Attorneys Council (IPAC). Yesterday, two days before the Indiana Supreme Court hears its Blakely cases of Heath and Smylie (background here and here), IPAC filed an amicus brief in which my forthcoming article "Conceptualizing Blakely" and its discussion of an offense/offender distinction play a prominent role. (Over at INCourts you can get more background here and here on the Indiana brief and the Heath and Smylie arguments.)The full IPAC brief, which you can access here, is an interesting read not only for the offense/offender discussion, but also for its views on consecutive sentencing after Blakely and its assertion that Indiana "courts need not await action by the legislature to establish remedial procedures to insure compliance with Blakely." But, of course, ever the egoist and egotist, my favorite parts of the brief are those where my "Conceptualizing Blakely" article (available at this post) gets heavy play. And I especially liked the brief's conclusion, which states: "If Blakely is held to govern Indiana sentencing statutes making a distinction between offense facts and offender characteristics is essential to conducting a rational sentencing system."November 9, 2004 at 07:15 AM

More noteworthy state Blakely developmentsIt now seems that not a day goes by without a noteworthy state Blakely ruling coming on-line. This afternoon, I found at least three such cases in Strong v. State, 2004 WL 2481190 (Ind. App. Nov. 5, 2004), and People v. Fogle, 2004 Colo. App. LEXIS 2004 (Colo. App. Nov. 4, 2004), and People v. Hogan, 2004 Colo. App. LEXIS 2001 (Colo. App. Nov. 4, 2004). (There are also, no doubt, a number of recent additional noteworthy California cases, but I have given up trying to keep up with doings there now that over 125 on-line Blakely cases come from that state alone!)As seems often to be the case with state Blakely decisions, Strong and Fogle and Hogan all reach noteworthy legal conclusions while being rich with too many details and dicta to effectively summarize (especially on a Friday afternoon at the end of a tiring week). I hope it suffices to note that Strong reverses a sentence on Blakely grounds and you can read more details at INCourts here. Meanwhile, Fogle and Hogan affirm sentences over Blakely objections: Fogle is based on a seemingly shaky conclusion the court could "properly treat counsel's statements as an admission by defendant" to hold that "defendant admitted the fact on which his enhanced sentence was based;" Hogan seems grounded more solidly on the conclusion that enhancement of the defendant's sentence did "not require proof of any fact other than the elements of

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kidnapping-robbery and aggravated robbery, which were necessarily proved beyond a reasonable doubt, as [was] apparent from the jury's verdict."November 5, 2004 at 05:11 PM

Further narrowing of Blakely's reach in the statesWe have seen state courts find all sorts of ways to limit the reach of Blakely, and noteworthy recent cases from Arizona and Indiana continue the trend. In State v. Arciniega Martinez, 2004 WL 2474976 (Ariz. App. Div. 1, Nov. 04, 2004), and Wickliff v. State, 2004 WL 2453041 (Ind. App. Nov. 03, 2004), state intermediate courts find clever and questionable ways to keep Blakely from disrupting a sentence on review.In Arciniega Martinez, the Arizona court explains that "a jury need not find every aggravator upon which a sentencing judge relies [and] Blakely error is subject to harmless error or fundamental error analysis and may or may not require reversal based on the facts of a particular case." There are many interesting features of the Arciniega Martinez court's holding and analysis, and perhaps the most noteworthy passage explains:

Because the jury found at least one aggravating factor, defendant was eligible to receive an aggravated sentence, and the trial court's weighing of additional aggravating and mitigating circumstances to determine the appropriate sentence within the aggravated range was permissible. Put another way, the jury having found the existence of one aggravating factor, its verdict expanded the sentencing range and the scope of the trial court's sentencing discretion. When one aggravating factor is authorized by the jury, Blakely is satisfied.

A similar approach and logic is applied in Wickliff, where the court details that various criminal history issues and facts admitted by the defendant supported an enhacned sentence and then explains:

Whether or not Indiana's sentencing scheme runs afoul of the Sixth Amendment, Wickliff's sentence would not be affected because even a single valid aggravating circumstance is sufficient to justify enhancement of a sentence Here, there were two valid aggravating circumstances identified by the court justifying enhancement of Wickliff's sentence.

UPDATE: A reader has provided a direct link here to the Arizona appellate court's decision in Arciniega Martinez.November 5, 2004 at 06:49 AM

For still more on BlakelyEspecially with Jason Hernandez of the Blakely blog on temporary hiatus, everyone with a Blakely addiction should be sure to make Michael Ausbrook's blog INCourts a regular destination. Though described as a "blog for discussion of the Indiana courts," INCourts has been providing heavy-duty and wide-ranging Blakely coverage to the exclusion of most everything else lately. Michael does provide especially thorough coverage of Blakely in Indiana's courts (examples here

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and here and here), but he also is effectively covering the development of proposals for legislative revisions to Indiana's sentencing laws (examples here and here and here), and also some Blakely development outside Indiana (examples d HYPERLINK "http://incourts.blogspot.com/2004/10/more-on-arizonas-state-v-brown.html" here and here and here).October 31, 2004 at 03:14 AM

Still more Blakely news from IndianaMarcia J. Oddi of the The Indiana Law Blog reports that a state decision today, Krebs v. Indiana, No. 49A04-0310-CR-549 (Ind. Ct. App. Oct. 20, 2004), provides "the clearest statement to date" of Blakely's impact on Indiana sentencing law. Marcia provides the details in this post (scroll down to the third case), and she also reminded me that in three weeks the Indiana Supreme Court will be hearing its Blakely cases (as detailed here).October 20, 2004 at 06:50 PM

More on Blakely in IndianaI previously noted here that oral arguments on a set of Blakely cases are already scheduled in the Washington Supreme Court for November 9th and 10th. I have now learned from a great friend of the blog that the Indiana Supreme Court is also scheduled on the morning of November 10th to have combined oral argument in two Blakely cases, Heath v. State and Smylie v. State. Helpfully, interested persons can listen to these arguments live via webcast or through the Indiana Supreme Court's online archive here. (I find it fascinating (and sad) that a state supreme court webcasts its arguments live, while a week later we still await just a written transcript from the Booker and Fanfan arguments to appear here.)For background on the Smylie case, I would highly recommend the exegesis provided here by attorney Michael Ausbrook. More generally, Michael's relatively new blog INCOURTS is providing a lot of effective Indiana-specific Blakely coverage. And for some general background on Indiana's "presumptive" sentencing scheme, Michael Ausbrook recommends this article by Mike Limrick in a periodical put out by the Indiana State Bar Association (which comes courtesy of Marcia Oddi's great Indiana Law Blog).October 11, 2004 at 04:52 PM

Hoosier handling of Blakely issuesA few Hoosier FOBs ("friends of blog") sent me news of interesting developments from Indiana which reveal ways in which state courts are adapting procedurally and substantively to the "Blakely earthquake."One Hoosier reported that the Indiana "state judges had a recent conference during which Blakely was discussed [and a] 'Blakely Procedure' memo is apparently the result in Howard County." That memo, which can be downloaded below, seems to provide for jury trials to have a "second sentencing phase" and also says a "court shall not accept a plea of guilty without first determining that the defendant has been informed that by pleading guilty, the defendant waives

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the right to have a jury determine the aggravating circumstances."Download indiana_blakely_procedure.pdfIn addition, yesterday the Indiana Court of Appeals handed down Bledsoe v. State, No. 49A05-0311-CR-586 (Ind. App. Ct. Sept. 28, 2004) (available here). In Bledsoe, the court gives the "prior conviction" exception a broad reading to avoid having to reverse an "enhanced sentence:"

Bledsoe asks this court to find — pursuant to Blakely — that his sentence violated his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury.... In this instance, Bledsoe acknowledges that the trial court sentenced him to twelve years — two years beyond the presumptive — for committing the offense of burglary as a class B felony. In so doing, the trial court relied upon Bledsoe's prior criminal history, noted that his rehabilitation could only occur in a penal institution, that he was on probation at the time of the offense, and that the trial court believed that Bledsoe would continue to engage in criminal activities. [P]rior convictions shown by a defendant's criminal history are exempt from the Apprendi rule as clarified by Blakely [and] the remaining aggravating circumstances in Bledsoe's case merely derive from his criminal history. Thus, the Blakely analysis is not implicated. Finally, there is no indication that Bledsoe objected to the contents of the pre-sentence investigation report. In any event, it has been determined that a single aggravating circumstance will justify a sentence enhancement. That said, even if our supreme court were to find that Indiana's sentencing scheme runs afoul of the Sixth Amendment for the reasons that were articulated in Blakely, such a determination would have no effect on Bledsoe's sentence.

September 29, 2004 at 12:35 PM

Re-stating the state of the statesAs we continue to gear up for all the federal fun in Booker and Fanfan, the states keep chugging along with Blakely. For example, Marcia Oddi at the Indiana Law Blog reported here yesterday that the Indiana Supreme Court has now docketed two Blakely cases and provided for consolidated oral argument on November 10th. The two cases are Heath v. State and Smylie v. State; a great Indiana correspondent reports that "Heath is pretty run-of-the-mill, to the extent that anything can be in current situation. Smylie will raise the issue of Blakely and consecutive sentences." Meanwhile, my wonderful research assistant — who previously created here downloadable copies of all the text of this blog (through Sept. 15) — has now produced a distinct document which assembles just the posts I have done on Blakely's impact and application in the states. Of great help, the Word document includes imbedded links and a Table of Contents to make it easier to see which states have been most Blakely active:Download blog_posts_on_blakely_in_the_states.docSeptember 28, 2004 at 10:15 AM

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Federal and state news in IndianaMarcia Oddi over at the Indiana Law Blog has this interesting post about Blakely rulings and Blakely influenced outcomes in the Indiana federal courts. And some of my other Hoosier friends have sent me today an interesting decision from a state court of appeals, Carson v. State, No. 49A04-0310-CR-494 (Ind. Ct. App. June 11, 2004), coming from a petition for rehearing. Here are the highlights from a short opinion which can be downloaded below:

Now Carson asks this Court to find—pursuant to the recently-decided Blakely v. Washington, 124 S. Ct. 2531 (2004)—that his sentence violates his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury. Given that Carson did not challenge his sentence on direct appeal, he has technically waived review of this issue, and the appropriate procedure would have been to challenge his sentence through post-conviction relief. Waiver notwithstanding, after considering the merits of Carson’s challenge, we find that Blakely has no effect on his enhanced sentence.... Indiana courts have not yet considered what effect, if any, the Blakely opinion may have on Indiana’s sentencing scheme. Carson urges us to find that his enhanced sentence is improper because the trial court "made factual findings and entered an enhanced sentence upon those findings" without requiring that a jury make those findings beyond a reasonable doubt. Those factual findings—or aggravating circumstances—consisted of the following: a history of criminal and delinquent activity, which includes multiple convictions; a need for corrective or rehabilitative treatment that can best be provided by incarceration in a penal institution or in a work release facility; and the strong likelihood that, based upon his criminal history, he will commit battery again. As to the first aggravator, the multiple convictions that the extensive criminal history comprises have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely. The other two aggravating circumstances are simply derivative of that extensive history of convictions and thus would seem also not to implicate the Blakely analysis. In any event, a single aggravating circumstance is adequate to justify a sentence enhancement. Therefore, even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, this finding would have no effect on Carson’s sentence.

Download carson_v. State.docAugust 20, 2004 at 06:43 PM

More state Blakely news in Minnesota and elsewhereAfter Wednesday was a huge Blakely day in the federal system, it looks like today might be dominated by state news (and particularly by northern states starting with an M). As first reported here, the Minnesota Court of Appeals issued the state's first major Blakely ruling ealier this week in the course of overturning a sex offender's 40-year prison sentence. To quote Paul Harvey, here's "the rest of the story":

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In State v. Whitley, the Minnesota Court of Appeals holds that the findings of fact under Minnesota's pattern sex-offender statute need now be proved to a jury beyond a reasonable doubt. As noted in the very helpful e-mail report to me about the case:

Interestingly, the Court indicates that Apprendi and a Minnesota Supreme Court case called Grossman, and not just Blakely, dictate this result. The remand instruction is cryptic, as Minnesota has no system of sentencing juries or anything of the sort (at least not yet).

In news from states not starting with an M, this well-done article from the Knoxville News-Sentinel reports on a Tennessee decision from an intermediate appellate court which reduce a defendant's sentencing by a year in a child abuse case following Blakely.And, Marcia Oddi over at the Indiana Law Blog has noteworthy posts here and here about the likely impact of Blakely on Indiana state sentencing.July 22, 2004 at 02:15 PM

Kansas

A range of sentencing storiesThough all is calm and all is bright this holiday morning, the newspapers still have an array of sentencing stories that merit a quick post. (I also need a break from toy assembly.) So here is some sentencing news of note:

This story from Arizona reports on a state trial in a rape case which was bifurcated so that, a month after rendering a guilty verdict, a jury could consider Blakely aggravating factors.

This story from Kansas details why the state's coming legislative debate over capital punishment — which is necessary because of the Kansas Supreme Court's Marsh decision (discussed here, commentary here and here) — probably won't be limited to just fixing the procedural flaw that led the Court to strike down the state's death penalty law. The report notes that the incoming state Senate leader "expects an attempt from opponents of capital punishment to scuttle the law, though such an effort is not expected to succeed."

Finally, returning to the pardons story (covered here and here), the papers report that Governors in South Dakota and Vermont made this year an especially Merry Christmas for a few offenders.December 25, 2004 at 12:19 PM

Spanning the StatesThough there has not been huge Blakely news from the states recently, many small state stories continue to gurgle. Ron Wright, who has my great thanks for a wonderful job of guest-blogging last week, has relayed to me some of these stories upon his return from the National Association of Sentencing Commission's national meeting. I'll share Ron's many insights in a series of posts, through first let me note(small) news from the state courts.

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In Minnesota this week there has been a spate of remands from the courts of appeals with instructions to the district court "to consider the application of Blakely." State v. Carlson, 2004 WL 1826141 (Minn. App. Aug. 17, 2004); see also State v. Rivera, 2004 WL 1826586 (Minn. App. Aug. 17, 2004); State v. Henderson, 2004 WL 1833936 (Minn. App. Aug. 17, 2004). Similarly, a recent Indiana court of appeals' decision, Wilkie v. State, 2004 WL 1843005 (Ind. App. Aug 18, 2004), dodges direct consideration of Blakely in a footnote which states that the court is "mindful" of Blakely, but "leave[s] for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B)."This thoughtful news story effectively canvasses state sentencing developments, and explains why state Blakely stories have been slower to develop:

Blakely may have a somewhat more limited impact on the functioning of state sentencing systems because judicial fact-finding is used to determine sentences in only a small fraction of state-level cases. Plus, the nature of state sentencing systems makes it easier for state courts to sidestep the ruling until more permanent statutory solutions are enacted.

The article goes on to note, however, that we might just be noticing a period of calm before a major legislative storm:

Blakely could have considerable state-level repercussions, especially in states with sentencing structures similar to Washington's.... Daniel Wilhelm, director of state sentencing and corrections programs at the Vera Institute of Justice ... said he "absolutely" expects statehouses to be flooded with legislation aimed at tailoring state sentencing guidelines to bring them into compliance with Blakely, when legislatures reconvene next year. "People seem to be waiting to act until the legislatures reconvene in the new year," Wilhelm said.

Finally, this article notes that Kansas might serve "as a model for other states now looking to reform their systems of presumptive sentencing guidelines" because it "adopted a bifurcated system after the state supreme court in 2001 invalidated its system of presumptive sentencing guidelines." Interestingly, Ron had this report about views expressed at the NASC meeting concerning the "Kansas solution": From Ron about the Kansas system:Various academics, judges, prosecutors, sentencing commissioners, and defense attorneys [at the NASC meeting] related some of the events in Kansas. Kansas holds special interest for Blakely purposes, because a 2001 Kansas Supreme Court case, State v. Gould, anticipated the outcome in Blakely and struck down the use of judicial factual findings to authorize an aggravated sentence. The Kansas legislature responded by passing a statute that provides for bifurcated jury proceedings to find facts that could authorize an aggravated range sentence. As a result, Kansas now has a two-year head start in the use of bifurcated jury proceedings. There have been very few bifurcated jury proceedings held in the Kansas courts. In most counties, there have been none at all; statewide, there may have been less than a half dozen. When these proceedings do occur, attorneys and judges estimated that they only added one to three hours to the jury trial.

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Why so few bifurcated jury proceedings in Kansas? One explanation could be the fear of the unknowns and the hassle that could accompany the new extended jury proceedings. Another is the power of parties to negotiate an aggravated sentence: defendants might happily accept an aggravated range sentence in exchange for a reduction in the charges filed. But judges and attorneys from Kansas relied on several features of Kansas law for more specific explanations. They noted that consecutive sentences now take the place of aggravated sentences. Under Kansas law, the judge can impose consecutive sentences up to double the length of the most serious charge if there is a conviction for a second count. Prosecutors have begun more actively to charge additional counts, making possible these consecutive terms. For example, drug deals can also be charged as conspiracies and/or violations of the drug tax law. Judges and lawyers in Kansas also point out that the sentences for the most serious offenses are already pretty high in the presumptive range. Thus, for the most important cases, aggravated sentences may not appear to be that attractive to prosecutors. August 19, 2004 at 12:44 AM

Can the Kansas system work for the feds?Because it's late, readers will have to make up their own Wizard of Oz jokes as we consider the virtues of following the yellow brick road of sentencing reform to Kansas. The New York Times today has an article suggesting "Justices' Sentencing Ruling May Have Model in Kansas." In a similar vein, The National Association of Criminal Defense Lawyers' (NACDL) has sent a letter to Senators Hatch and Leahy (available here thanks to our friends at TalkLeft), in which it is suggested that the Kansas approach of having a bifurcated trial to allow jury consideration of sentencing enhancements is the best way to give meaning to the constitutional rights announced in Blakely. I'll be interested to hear if the Kansas approach gets discussed at any length during the Senate Judiciary Committee hearing later today.July 13, 2004 at 02:59 AM

Reports about Blakely from the fieldI am pleased that various folks in various settings are starting to e-mail me with formal and informal reports about efforts and plans to deal with Blakely. Keep those cards and letter coming (and let me know if I am have your permission to post your reports). You can find here a post reporting the Blakely "word on the street" in one jurisdiction . In addition, I received an important and helpful e-mail from Jeffrey L. Fisher, the lawyer from Davis Wright Tremaine LLP, who won Blakely's case in the Supreme Court. Here's what he has to say:

One thing I think it's important for people to know is that, at least as far as the states are concerned, we're not in uncharted waters. Kansas has already been here, and it provides a useful source from both a legislative and a judicial point of view. Following the Kansas SCt's decision in State v. Gould, 23 P.3d 801 (Kan. 2001), holding that Apprendi applied to facts supporting upward departures under its state guidelines, the Kansas legislature amended the guidelines to comply with Apprendi. See Kan. Stat. Ann. 21-4716, 4718. (In fact, Justice Scalia cited this legislative response in the Blakely opinion.) These

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amendments may provide a helpful template for legislatures and commissions in guideline states; the word from Kansas is that they work just fine. In addition, and perhaps even more helpful to lawyers out there, the Kansas courts following Gould have developed a rich body of law concerning how to deal with defendants who received upward departures before Gould came down. There are cases dealing with defendants who pleaded guilty without challenging the aggravator, e.g, State v. Pruitt, 60 P.3d 931 (Kan. 2003); defendants who stipulated to the aggravator, State v. Cody, 35 P.3d 800 (Kan. 2001); defendants who agreed to the upward departure, e.g. State v. Cullen, 60 P.3d 933 (Kan. 2003); State v. Johnson, 55 P.3d 927 (Kan. App. 2002), and many more permutations. There also are cases addressing how courts should proceed until there is a new legislative procedure for finding aggravating facts that complies with Apprendi. See, e.g., State v. Kessler, 73 P.3d 761, 771-72 (Kan. 2003); State v. Santos-Garza, 72 P.3d 560 (Kan. 2003).

Maine

Interesting state Blakely newsThough the federal sentencing story will take center stage later today when the respondents and amici file briefs in Booker and Fanfan, today's papers have more interesting news on Blakely in the states. From Maine, this article details that the Maine Supreme Court later this week will hear additional argument in two pending cases in order to examine the impact of Blakely.From Tennessee, this article reports on the interesting and challenging work of the Governor's Task Force (previously discussed here and here) which was assigned the task of devising an effective response to Blakely for Tennessee. In addition, this editorial urges a set of responses to Blakely for Tennessee and federal sentencing.September 21, 2004 at 07:37 AM

Massachusetts

Still more interesting state decisionsThough the federal courts have, perhaps quite justifiably, issued relatively few Blakely decisions as the Booker and Fanfan arguments approach, the state courts have to keep sorting out Blakely without any reassurance that helpful guidance will be coming from the Supreme Court anytime soon. (Indeed, as I suggested here, the rulings in Booker and Fanfan could actually make life harder, not easier, for the states). And the state courts continue to issue interesting Blakely decisions. For example, in State v. Fell, 2004 Ariz. App. LEXIS 137 (Ariz. App. Sept. 23, 2004), the court considered whether a trial court could impose a natural life prison term on a first-degree murder

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charge without the state having to prove to a jury beyond a reasonable doubt the aggravating circumstances the state previously had alleged when seeking the death penalty. The court ultimately concluded that Blakely did not require "a jury to find beyond a reasonable doubt that certain aggravating circumstances exist before a trial judge in Arizona may sentence a defendant convicted of first-degree murder to a natural life prison term rather than life with the possibility of parole."In Commonwealth v. Junta, 2004 Mass. App. LEXIS 1080 (Mass. App. Sept. 23, 2004), the court dropped a footnote to explain: "The recent United States Supreme Court decision in Blakely has no application here, as the Massachusetts sentencing scheme provides for indeterminate sentences."Meanwhile, in Blakely bellweather Ohio, the court in State v. Eckstein, 2004 Ohio App. LEXIS 4594 (Ohio App. 1st Dist. Sept. 24, 2004), the court avoids Blakely by asserting that statutory "findings that must be specified prior to a departure from the minimum prison term are discretionary factors to be used by the trial court in determining what sentence to impose within the authorized range."September 25, 2004 at 05:30 PM

Michigan

Dissention in the Michigan ranks?Reaching out to address the Blakely issue quickly, the Michigan Supreme Court in July in People v. Claypool (detailed here) dropped a footnote asserting that Michigan's guideline scheme operates in a manner that avoids Blakely problems. That decision was thought questionable at the time, and earlier this week in People v. Holtschlag, 2004 Mich. App. LEXIS 2751 (Mich. App. Oct. 19, 2004), a Michigan intermediate appellate court dropped its own interesting footnote questioning the conclusion of the Claypool court:

We note that MCL 777.36(2)(a) appears on its face to be in opposition to the recent United States Supreme Court decision of Blakely v Washington, 124 S. Ct. 2531 (2004), as the statute explicitly allows a sentencing court to consider factors not before the jury. However, a majority of the Michigan Supreme Court recently decided that Blakely does not apply to Michigan's indeterminate sentencing guidelines in which the maximum sentence is set by law. People v Claypool, 470 Mich. 715, 730 n 14; 684 N.W.2d 278 (2004) (Justices Cavanagh, Weaver and Young concurred with Justices Taylor and Markman, writing for the Court, that Blakely is inapplicable in Michigan).

October 21, 2004 at 10:17 AM

Blakely back in the newsThe coming week should have plenty of Blakely news with the Solicitor General's office and the US Sentencing Commission both due to submit briefs in the Booker and Fanfan cases on

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Wednesday. In the meantime, the newspapers are again finding other noteworthy Blakely stories.From Tennessee articles here and here report on the recommendation made by the Task Force appointed by Governor Phil Bredesen that a special session of the Tennessee General Assembly is not needed to deal with Blakely. Background on the Tennessee Task Force can be found here and here, and this recent news article thoughtfully explains why the "Task force on sentencing has its work cut out for it." This article also details the variations in Tennessee sentencing practices in the wake of Blakely:

[Cleveland attorney James F.] Logan said some judges are ignoring Blakely. Others, he said, insist it mandates only minimum sentences, ignoring even prior convictions that the nation's high court clearly said could be used to boost sentences. At least two judges are now holding separate sentencing hearings, allowing juries to decide which factors a judge can use, if any, to ratchet up a criminal's sentence. They are doing so even though there is no law on the books that allows that process, known as a bifurcated hearing, in any case other than those in which the death penalty or life without parole is sought as punishment.

In other state news, this article discusses a peculiar ruling from a Michigan state judge who apparently declared Michigan's state sentencing guidelines unconstitutional in order to be able to sentence a child molester to a much longer prison sentence than the guidelines provided. From the federal desk come two Blakely stories out of the Eighth Circuit. This article discusses a factually and legally interesting case involving a former Kansas City pharmacist who received a 30-year prison term for diluting chemotherapy drugs. And this article discusses a North Dakota perjury case in which all parties agreed to put sentencing on hold until November 10 with the hope that federal sentencing law will be clearer at that time.August 28, 2004 at 09:20 AM

The Michigan Supreme Court speaks!!We now have what I believe is the first state Supreme Court decision to expressly consider Blakely. Today in Michigan v. Claypool, the Michigan Supreme Court articulated the view (in footnote 14) that Michigan's guideline scheme operates in a manner that avoids Blakely problems:

Michigan ... has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is not determined by the trial judge but is set by law. MCL 769.8. The minimum is based on guidelines ranges.... The trial judge sets the minimum but can never exceed the maximum (other than in the case of a habitual offender, which we need not consider because Blakely specifically excludes the fact of a previous conviction from its holding). Accordingly, the Michigan system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher sentence based on facts not found by the jury in violation of the Sixth Amendment.

In a separate opinion concurring in part and dissenting in part, Chief Judge Corrigan suggests that Blakely matters in Michigan may not be so simple:

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I agree with the majority that the recent United States Supreme Court decision in Blakely v Washington, does not invalidate Michigan’s indeterminate sentencing scheme as a whole. Nonetheless, the majority’s sweeping language regarding judicial powers to effect departures (not limited to downward departures) will invite challenges to Michigan’s scheme; it appears to conflict with principles set out in Blakely.

Here's the full opinion for your reading pleasure:Download michigan_claypool_decision.pdf There are additional opinions and issues of note in Claypool, which looks like a very interesting state guideline case wholly apart from its encounters with Blakely. Because I am not well versed on Michigan state law —indeed, there may be a clause in my Ohio State contract which legally forbids me from thinking too much about anything Michigan — perhaps readers more familiar with Michigan's sentencing scheme can provide some immediate commentary on this decision. UPDATE: In this article discussing the Claypool decision, Jim Neuward, director of the State Appellate Defender Office, says "It's nowhere near as simple as the court thinks." said July 22, 2004 at 01:00 PM

Minnesota

Blakely in the states keeps chugging alongEven though the Supreme Court keeps keeping us waiting for Booker and Fanfan, the state courts continue to churn out Blakely decisions. Amazingly, only roughly a week into the new year, California already has 30 on-line decisions noting or discussing Blakely. I continue to wonder when the California Supreme Court will hear argument in the two Blakely cases on which it granted review nearly six months ago. I have to surmise that Court is, like the rest of us, waiting for Booker and Fanfan. And other intermediate state appellate courts are keeping busy this week, too. From Washington, yesterday brought State v. Ermels, 2005 WL 39762, (Wash. App. Div. 1, Jan. 10, 2005), in which the court affirmed a sentence over a Blakely objection based on the defendant's waive of his rights to appeal in his plea agreement. And today brought State v. Windrow, 2005 Wash. App. LEXIS 55 (Wash. App. Div. 2, Jan. 11, 2005), in which the state conceded Blakely error in the imposition of an exceptional sentence.In addition, today Minnesota released three notable Blakely decisions: State v. Minick, 2005 WL 43769 (Minn. App. Jan. 11, 2005) (reversing upward departure sentence based on Blakely); Vogt v. State, 2005 WL 43952 (Minn. App. Jan. 11, 2005) (holding that Blakely has no retroactive application); State v. Hajrusi, 2005 WL 44020 (Minn. App. Jan. 11, 2005) (same).January 12, 2005 at 01:29 AM

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Big reports from Indiana and MinnesotaI was planning to blog a bit less while at this conference, but there is just too much exciting stuff going on for me to stay away from the computer. Most notably today, I have received word of two (huge) reports on state sentencing from Indiana and Minnesota:

From Indiana, Marcia Oddi of Indiana Law Blog spotlight the state's recent "Final Report of the Sentencing Policy Study Committee" (which can be accessed here). The report runs a total of 142 pages(!), but has a helpful executive summary and seems packed with interesting information on a broad range of sentencing issues. And Marcia Oddi spotlights the Blakely parts in this helpful post, which details that the Committee is recommending statutory changes to "Blakely-ize" Indiana's sentencing system.

From Minnesota, we get the state's Sentencing Guidelines Commission's "2005 Report to the Legislature" (which can be accessed here). It is (only!) 80+ pages long, but has a helpful executive summary which reviews Blakely issues and the sex offender developments recently noted here. The report also covers, with both data and notable graphics, other state sentencing developments.

January 6, 2005 at 09:13 PM

More Blakely state reportsWith many thanks to the many FOBs ("friends of blog") sending in reports, I can follow up this morning's state Blakely round-up with some additional interesting state reporting. The states of note this afternoon are Minnesota, Ohio and Washington.MINNESOTA: The news from comes in the form of two decisions from Minnesota Court of Appeals. In State v. Hagen, C0-02-1318 (Minn. App. Dec. 28, 2004), the court clarifies that an "upward durational departure under the Minnesota Sentencing Guidelines may not be based on an "admission" by the defendant, under Blakely v. Washington, 124 S. Ct. 2531 (2004), unless the "admission" to an aggravating factor is accompanied by the defendant's waiver of his or her right to a jury trial on the aggravating factor." In State v. Brooks, A03-2050 (Minn. App. Dec. 28, 2004), the court concluded that Blakely did "does not require that a jury find, or a defendant admit, the existence of a custody status point" because (according to the court) assignment of those points are like a prior conviction. OHIO: The report here is a third-hand account from an Ohio lawyer "that Ohio Supreme Court Chief Justice Moyer, at a training for new judges, said that the Ohio Supreme Court was taking Blakely 'VERY seriously.'" This is great news because, as noted in a number of previous posts (examples here and here and here and here), the story of Blakely in Ohio is very serious.WASHINGTON: The report from Blakely's home state is that a group a committee of prosecutors and criminal defense lawyers have a proposal in the works for the Washington legislature when it reconvenes next month which would involve the "Blakely-ization" of Washington's guideline scheme by providing for aggravating facts, other than the fact of a prior conviction, to be placed before the jury.December 28, 2004 at 06:42 PM

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Blakely cases keep rolling alongWith all the major Blakely rulings last week (some details here), I thought this pre-holiday week might be quiet on the Blakely front. But there are on-line already more than a dozen state and federal appellate cases dealing with Blakely issues from Monday and Tuesday of this week alone. Here are a few of the rulings that seem most noteworthy:FEDERAL CASES In US v. Taveras, 2004 U.S. App. LEXIS 26540 (1st Cir. Dec. 21, 2004), the First Circuit in a per curiam opinion upholds a trial judge's consequental drug-quantity findings, which were based on seemingly suspect accomplice testimony. Of course, this finding raises Blakely issues, but the Taveras court continues the First Circuit's approach (noted here and here) of using plain error analysis to rebuke Blakely claims.In US v. Vaughan, 2004 U.S. App. LEXIS 26545 (10th Cir. Dec. 21, 2004), the Tenth Circuit similarly uses plain error analysis to rebuke Blakely claims in a major fraud case. Here, the court notes the defendant "admitted in the plea agreement to all five of these [Blakely-significant] facts [and thus] has failed to show that any sentencing error under an extension of Blakely would seriously affect the fairness, integrity, or public reputation of the judicial proceedings in this case."In US v. Mellen, 2004 U.S. App. LEXIS 26513 (D.C. Cir. Dec. 21, 2004), the D.C. Circuit, in a split 2-1 decision, overturns the trial court's calculation of the amount of loss in a fraud case. In so doing, the court avoided having to address Blakely, but it explained: "We issue our judgment today without awaiting guidance from the Supreme Court on this question because it appears, quite apart from any constitutional concerns, that [the defendant] may be eligible for immediate release upon resentencing. To the extent necessary, the district court may apply the Supreme Court's upcoming decisions in Booker and Fanfan in the first instance at resentencing."STATE CASES In State v. Gomez, 2004 WL 2937808 (Ariz. App. Div. 1, Dec. 21, 2004), the court examines the rules for applying Arizona's Proposition 200, which was "a voter initiative also known as the Drug Medicalization, Prevention, and Control Act of 1996 [which seeks] to treat initial convictions for personal possession and use of a controlled substance as a medical and social problem." Significantly, the court finds the provision which "disqualifies an otherwise eligible defendant from mandatory probation for a drug offense based solely on a finding that the defendant has been 'indicted for a violent crime' to be unconstitutional." In State v. Brown, 2004 WL 2938643 (Minn. App. Dec. 21, 2004), the court sustains a Blakely objection to the application of Minnesota's career offender sentencing statute. Here's how the Brown court explains why the defendant's sentence was Blakely problematic: "Although the existence of prior convictions falls under an exception to the Blakely requirement of jury findings, an upward departure under the statute requires an admission or a jury verdict on the added finding that the convictions formed a pattern of criminal conduct."December 22, 2004 at 01:46 PM

Interesting state Blakely reportsTwo interesting newspapers stories this morning on the Blakely beat:

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This article from Oregon discusses the state's continuing efforts to deal with the fallout from Blakely. This article discusses the Oregon Supreme Court's ruling last week in Dilts (detailed here), and notes that lawyers now "disagree about what happens next in Oregon." The article also indicates that these matters are "under review by a task force appointed by Gov. Ted Kulongoski and headed by [state Attorney General] Myers and by a joint legislative committee."

This article from Missouri mixes Blakely with sports, as it reports that Leonard Little, a member of the St. Louis Rams, is invoking Blakely to try to get his pending felony drunken driving charge dismissed. As the article explains, Little's lawyers have argued in papers "filed with the Missouri Supreme Court that by Missouri law, a judge, not a jury, has decided that Little is a persistent offender, and the statute that makes his pending case a felony therefore fails to pass muster."I recall that this mysterious blogger encouraged me to watch a lot of football to take my mind of of Blakely and Booker/Fanfan. But apparently even football players have Blakely claims to make.UPDATE: And here's an article from Minnesota detailing that a former state judge is invoking Blakely in an effort to reduce his prison sentence for stealing money from a mentally disabled woman.December 21, 2004 at 09:56 AM

Minnesota Supreme Court orders Blakely briefingTaking a slightly different approach to sorting out the impact of the Blakely earthquake than Oregon's Supreme Court (detailed here), the Minnesota Supreme Court has ordered additional briefing on remedy issues while contemplating the fate of its state sentencing system. In the order in Minnesota v. Shattuck, C6-03-362 (Minn. Dec. 16, 2004), which can be downloaded below, the Minnesota Supreme Court first holds that upward departures under existing law are unconstitutional:

It is the determination of this court that, in accordance with the rule of Blakely v. Washington, 124 S. Ct. 2531 (2004), the district court’s imposition of an upward durational departure under Minn. Stat. § 609.109, subd. 4 (2002), from the Minnesota Sentencing Guidelines’ presumptive sentence violated appellant’s Sixth Amendment right to trial by jury. We note that because imposition of the presumptive sentence is mandatory absent additional judicial findings under the legislatively-created Guidelines regime, the presumptive sentence is the maximum penalty authorized solely by the jury’s verdict for the purposes of Apprendi v. New Jersey, 530 U.S. 466 (2000). The test of Apprendi is one of functional effect rather than form. Because the Guidelines regime permits the district court to durationally depart upward from a presumptive sentence after finding aggravating factors not considered by the jury, it unconstitutionally usurps the role and undermines the function of the jury. A full opinion will follow.

The Court then ordered the parties, within 30 days of the order, to "file and serve supplemental briefs on the issue of remedy." Here are the questions for the supplemental briefs:

(1) Whether the portions of the Sentencing Guidelines that unconstitutionally allow the district court to impose an upward durational departure based on facts not reflected in the jury’s verdict or admitted by the defendant are severable from the remainder of the Guidelines. See Minn. Stat. § 645.20 (2002); City of Duluth v. Sarette, 283 N.W.2d 533, 537 (Minn. 1979).

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(2) If the unconstitutional portions of the Guidelines properly may be severed, whether this court has the inherent authority to authorize the use of sentencing juries and a bifurcated trial process. (3) Whether a sentencing jury or a bifurcated trial process implicates double jeopardy concerns. (4) In the present case, what specific remedy is appropriate? In particular, does the fact that the district court denied appellant’s request to place before the jury aggravating factors that would, if found, justify sentencing enhancement, affect the disposition of this matter?

The order also includes a dissent by Justice Page who says "Because the judicial findings made here were void ab initio and of no legal effect, I would remand to the district court for imposition of the presumptive sentence. Any responsibility for fixing the “Blakely problem” lies with the legislature and not this court."Download minn_shattuck_order.doc December 17, 2004 at 04:53 PM

Thoughtful coverage of major sentencing issuesI have praised the press's recent potent coverage of a range of sentencing law and policy issues (some examples here and here and here), and this morning there are more fine articles on all the most important sentencing issues of the day:

This article from the St. Cloud Times provides a complete and insightful review of the impact of Blakely on Minnesota state sentencing. (Other weekend articles on Blakely's impact in other states are here.) The article includes the important news that the "fear of numerous two-part trials hasn't materialized" after Blakely apparently because many courts are using "special verdict forms that ask jurors whether they believe the aggravating factors exist" at the main trial of guilt.

This article in the Milwaukee Journal Sentinel, written by state Judge Michael Brennan, serves as a fitting follow-up to the paper's terrific series of sentencing articles entitled "Locked In: The Price Of Truth In Sentencing" (detailed here and here and here). Judge Brennan in his article reviews, with many national insights, the state of sentencing in Wisconsin.

This article in The Oregonian thoroughly reviews a challenge to the state's death penalty laws which could "threaten the death sentences of all 29 men on Oregon's Death Row." The article provides even more fuel for my recent speculation here that the punishment of death may itself be dying a slow death.December 12, 2004 at 09:04 AM

Still more on Blakely in MinnesotaPrompted by my post here earlier today about recent doings in the Minnesota intermediate appellate courts, a very helpful reader sent along a wealth of information about noteworthy Blakely developments in the Minnesota Supreme Court. Here's the report:1)

The Minnesota Supreme Court had issued an opinion in a case called Powers v. State, a collateral attack on a conviction following a direct appeal (basically a state habeas) in which they dropped a footnote stating that Blakely "applies Apprendi" and thus Mr. Powers, who hadn't raised an Apprendi issue on his direct appeal, couldn't raise an

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Apprendi or a Blakely issue. Powers petitioned for rehearing, arguing that the footnote was improper because the Blakely issue hadn't been briefed or argued. The Minnesota Supremes granted the request and deleted the footnote from the opinion in this order.

2)The Minnesota Supreme Court hears its first Blakely case on Nov. 30 — the issue is whether Blakely applies to upward durational departures (State v. Shattuck). Later in December, the court hears State v. Leake, which will decide whether it's unconstitutional to increase a defendant's sentence from life with the possibility of parole to life without the possibility of parole based upon judicial factfinding. The Court's argument calendar for December is here.

3)The Supreme Court has granted review of three other issues in two cases (as far as I know as of 11/24): State v. Allen — Does Blakely apply to dispositional departures? Does Blakely apply to custody status points (what the guidelines commission called the ticking time bomb)? State v. Henderson — Does Blakely apply to findings required under Minn.'s "career offender" statute, MInn. Stat. sec. 609.1095, subd. 4, which requires five prior felony convictions and a finding that the current crime was committed as part of a pattern of criminal conduct?

November 24, 2004 at 05:11 PM

Lots of Blakely doings in Minnesota Blakely decisions seem to come from Minnesota in groups, and yesterday three Blakely rulings of note were handed down by the Minnesota appellate courts. Two addressed Blakely's applicability to departures, and one concerned Blakely retroactivity.

In the area of departures, neither State v. Johnson, 2004 WL 2659955 (Minn. App. Nov. 23, 2004), nor State v. Berry, 2004 WL 2663239 (Minn. App. Nov. 23, 2004), appears to break any major new ground. However, Johnson seems important for clarifying that Blakely "applies to durational sentencing departures imposed in the context of a [unique form of Minnesota] stipulated-facts trial." And Berry seems important for reiterating a previous state ruling in Hanf (discussed here) that "Blakely does not apply to dispositional departures in Minnesota, but [does apply to] durational departures." (Recall that I am a fan of Hanf, because the decision robustly embraces the sort of offense/offender distinction I discuss in this forthcoming article to support a distinction between dispositional and durational departures.)Addressing retroactivity, State v. Petschl, 2004 WL 2663594 (Minn. App. Nov. 23, 2004), thoroughly and thoughtfully explains its conclusion that "Blakely established a new constitutional rule that does not fall within either of the Teague exceptions," and thus "Blakely does not apply retroactively to collateral review of appellant's 1998 conviction." November 24, 2004 at 08:44 AM

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Nationwide Blakely developments in the statesThough today's non-arrival of Booker and Fanfan keeps the federal Blakely story on hold, the state Blakely stories continue to develop at a fast and furious pace:

Michael Ausbrook has a long and thoughtful post here on recent decisions from Indiana which may presage what the Indiana Supreme Court might do with the Blakely cases it is considering tomorrow. And, in the Indiana intermediate appellate courts, a decision today, Teeters v. State, 2004 WL 2521386 (Ind. App. Nov. 09, 2004), relies on the "prior conviction" exception and other means to affirm a sentence over Blakely objections.

The Minnesota Sentencing Guidelines Commission details here its plans for a meeting next month "to consider proposed modifications to the sentencing guidelines and commentary resulting from the recent U.S. Supreme Court decision Blakely v. Washington." The proposed modifications include "changes to the procedures for imposing aggravated departures, modifications to the consecutive sentencing provisions, modification to the sentencing grid and proposed ranking of unranked offenses."

The Delaware Sentencing Accountability Commission has here (scroll down) a brief discussion of the Delaware Supreme Court's decision in Fuller v. State, No. 38 (Del. Oct. 29, 2004), which seems to indirectly suggest that Blakely may not be applicable to Delaware's voluntary sentencing guidelines.

And, of course, California's appellate courts keep hashing out Blakely with now 137 Blakely-related opinions on-line. (Many of the most significant rulings are summarized here by the First Disrict Appellate Project in California.)

November 9, 2004 at 10:15 PM

More notable Blakely cases from MinnesotaWith thanks to a correspondent from the field, I can report on two more noteworthy Blakely cases from Minnesota's courts of appeals. (Some of the previous reports on Minnesota Blakely caselaw developments can be found here and here.)In State v. Fairbanks , A04-983 (Minn. Ct. App. Nov. 2, 2004), the court reversed an upward departure sentence over a series of arguments by the government that Blakely should not benefit defendant Fairbanks. The state argued "that Blakely does not apply to Fairbanks’s sentence because (1) the Washington guidelines, unlike Minnesota’s, are legislatively rather than administratively determined; (2) Fairbanks waived his right to be sentenced by a jury when he submitted his case on stipulated evidence; and (3) Fairbanks is not entitled to the benefit of the Blakely holding." The court directly rejected each of these contentions:

The district court violated appellant’s Sixth Amendment right to a jury trial by imposing an upward departure on his kidnapping sentence based on judicially found facts. Fairbanks did not knowingly waive his right to have a jury determine those facts, and he is entitled to relief even though he did not object in the district court on constitutional grounds. Accordingly, we vacate Fairbanks’s sentence and remand for resentencing consistent with this opinion.

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In State v. Saue , A04-983 (Minn. Ct. App. Nov. 2, 2004), the court likewise reversed a sentence on Blakely grounds, this time upsetting an "executed sentence of 60 months, which represented an upward dispositional departure and a quintuple upward durational departure from the presumptive stayed sentence of a year and a day." In a lengthy and thoughtful opinion, the Saue court rejects a series of arguments by the state to avoid applying Blakely to Minnesota's guidelines system and concludes that " the imposition of an upward durational departure based on judicial findings here violated appellant’s Sixth Amendment right to a jury trial."However, in Saue, the court goes on to conclude that "Blakely does not apply to dispositional departures imposed under the Minnesota Sentencing Guidelines" because this determination involves "an open-ended examination of individual offender characteristics ... [that are] based on facts far removed from the offense elements reflected in that verdict." Thus, in sum, the Saue court is holding that the "imposition of an upward durational departure based on judicial findings violated appellant’s Sixth Amendment right to trial by jury [but the] upward dispositional departure did not violate appellant’s jury-trial right."November 2, 2004 at 05:24 PM

Minnesota working on offense/offender ideaAs noted here, I have been starting to conceptualize Blakely in terms of an offense/offender distinction (and I hope to be able to share a draft of an article to this effect in this space real soon). And, interestingly, we have seen (conflicting) intermediate appellate court decisions from New Jersey and Oregon discussing the idea that Blakely may only apply to "offense" facts and not to "offender" facts.In a fascinating decision today, State v. Hanf, 2004 WL 2340246 (Minn. App. Oct. 19, 2004), a Minnesota intermediate appellate court hangs its hat on an offense/offender distinction, though does so through a heavy reliance on the continued validity of Williams v. New York. Here are some very lengthy highlights (citations omitted):

The Minnesota Sentencing Guidelines specify sentences that are presumptive with respect to both disposition and duration.... But caselaw has developed an essentially separate category of reasons for dispositional departures. Those reasons relate to the individual characteristics of the offender, and may not be used to support a durational departure, although some offense-related factors may be used to support dispositional departures.... In interpreting the Minnesota guidelines, our supreme court never attempted to limit dispositional departures to the largely offense-related departure factors listed in the guidelines. In the pre-guidelines indeterminate sentencing scheme, parole release decisions had come to be governed by a matrix system in which a risk of failure level was assigned to each inmate. This level was determined based on identified factors disclosed in "background information."...Dispositional departures based on individual offender characteristics under the guidelines are like the traditional sentencing judgments made by judges in indeterminate sentencing schemes. The validity of those judicial judgments is conceded in Blakely....Appellant would argue that he has a "right" to a stayed sentence because that is the presumptive disposition under the guidelines. But that argument is unconvincing. First,

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the presumptive disposition is determined in large degree by the defendant's criminal history score. As discussed above, that score is not in any way determined by the jury's verdict, despite the apparent assumption to the contrary in Blakely. Second, the "right" referred to in Blakely must arise from the jury's verdict, and that verdict historically has never determined sentence dispositions, at least since courts acquired the authority to stay sentences. Third, while the elements of the offense found by the jury help determine what is a "typical" offense warranting the presumptive duration, Minnesota courts have not attempted to define what is a "typical" offender to serve as a baseline for the proper disposition of any type of offense. In practice, because the dispositional decision is largely predictive, Minnesota defendants must convince the court that ... they can succeed on probation, whether or not that is the presumptive disposition. At least, defendants must convince the court they are not particularly unamenable to treatment in a probationary setting to avoid an upward dispositional departure. The traditional role of the jury has never extended to determining which offenders go to prison and which do not. Traditionally, courts and parole officials made "their respective sentencing and release decisions upon their own assessments of the offender's amenability to rehabilitation." Mistretta v. United States, 488 U.S. 361, 363 (1989). The court's power to impose probation, in particular, resulted in an increase in judicial discretion channeled by "careful study of the lives and personalities of convicted offenders," particularly in the form of reports by probation officers. Williams v. New York, 337 U.S. 241, 249 (1949).The point is not, as the state argues, that these offender characteristics could not be assessed by juries. If the Sixth Amendment required juries to determine "amenability to probation," that function would have to be assigned to them. But because such decisions are, in essence and in Minnesota practice, the equivalent of indeterminate sentencing, which Blakely approves, the Sixth Amendment does not require it....This tradition establishes that an offender's amenability or unamenability to probation is not a "fact," within the meaning of Apprendi, that increases the offender's penalty. A dispositional departure requiring an offender to go to prison is undoubtedly a greater penalty than probation. But an offender's unamenability to probation is a judgment reached after consideration of a series of facts. It is not a "fact necessary to constitute the crime," Apprendi, 530 U.S. at 500, but rather a strictly offender-related conclusion....It could be argued that the requirement of departure reasons sufficiently distinguishes dispositional departures under the guidelines from indeterminate sentencing. But, although Blakely refers to the "facts supporting [the] finding" of deliberate cruelty that authorized the greater sentence in that case, 124 S.Ct. at 2537, it did not compare the degree of formality of fact-finding under the Washington Sentencing Guidelines with the fact-finding traditionally involved in indeterminate sentencing schemes that Blakely approved. We conclude that the determination of amenability or unamenability to probation is not the determinate, structured fact-finding that Blakely holds the jury must perform.The Supreme Court has made a similar distinction with respect to the offender's criminal history, or recidivism, which it has termed "a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Almendarez-Torres v. United

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States, 523 U.S. 224, 243 (1998). The Court stated that, "to hold that the Constitution requires that recidivism be deemed an 'element' of petitioner's offense would mark an abrupt departure from a longstanding tradition" in which recidivism went to the punishment only. Id. at 244. The same could be said with even greater force concerning the offender characteristics that govern dispositional departures, which extend beyond the offender's criminal history score. To hold that the Sixth Amendment requires those personal characteristics to be found by a jury would be an even further departure from tradition than to treat recidivism as an "element." We do not believe that Blakely requires this result.

October 19, 2004 at 05:29 PM

The Minnesota courts officially address BlakelyIt is a big Blakely day in the states. Following the important decisions out of New Jersey (noted here), we also today get noteworthy rulings from Minnesota. For quite some time, the Minnesota Courts of Appeals have been just remanding cases raising Blakely issues, as noted here (and see also today's State v. Conley, 2004 WL 2283421, (Minn. App. Oct. 12, 2004). Of course, these decision have been against the backdrop of the reports by the Minnesota Sentencing Guidelines Commission (available here and here) which concede that there are Blakely-problematic elements of state law. Today, officially, the Minnesota Court of Appeals holds, in two published decisions, that Blakely invalidates upward departures and sentences under Minnesota's "career offender" statute. The decisions in Minnesota v. Conger, A03-1771 (Minn. App. Oct. 12, 2004), and Minnesota v. Mitchell, A03-110 (Minn. App. Oct. 12, 2004), are both quite interesting reads, especially because the state apparently has been arguing that Blakely is inapplicable in Minnesota because the "Minnesota sentencing guidelines are not mandatory but merely 'advisory to the district court.'" In Conger, the court reject this claim in the following passage:

[E]ven though the sentencing guidelines are advisory to the district court, and a person convicted of a felony does not have a right to receive the presumptive, fixed sentence established by the Sentencing Guidelines Commission for that person's offense, a district court that does not impose the presumptive, fixed sentence is required to make findings of fact that support the court's reasons for departing from the presumptive sentence. This means that under the Minnesota sentencing procedures, the applicable presumptive, fixed sentence established by the Sentencing Guidelines Commission is the maximum sentence that a judge may impose without finding facts that support a departure, and a judge who imposes an upward durational departure must do so in a manner that complies with the Sixth Amendment to the United States Constitution as explained in Blakely.

October 12, 2004 at 05:35 PM

Now, the more intersting story...Though I still have pages and pages of undeveloped notes from yesterday's Booker and Fanfan argument, I have already worn myself out with the half-dozen posts about the event to be found below. Moreover, when all is said and done, I think the story of Blakely in the states is even more

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interesting (and often less discouraging) that the federal Blakely story. And, as is now true nearly every day, there are new state Blakely developments to report.Specifically, from North Carolina, today we get a Blakely reversal in State v. Harris, 2004 WL 2215184 (N.C. App. Oct. 05, 2004), in a case involving the imposition of an aggravted term based on a judicial finding that the defendant's offense was "especially heinous, atrocious, or cruel." From Minnesota, we get remands in two cases involving upward departures so that sentencing courts can consider the impact of Blakely. See Santiago v. Minnesota, 2004 WL 2221929, (Minn. App. Oct. 05, 2004); Minnesota v. Seelye, 2004 WL 2219663 (Minn. App. Oct. 05, 2004). And, of course, no week would be complete without a California Blakely cases from the state's intermediate court, and in People v. Gaitan, 2004 WL 2212089 (Cal. App. 1 Dist. Oct. 04, 2004) we get a thoughtful remand for resentencing on Blakely grounds.But the big state news today comes from Blakely's home state, Washington: an intermediate appellate court decision in State v. Van Buren, 2004 WL 2222263 (Wash. App. Div. 2 Oct. 05, 2004), makes an array of (interesting and debatable) rulings about what sorts of findings a judge can and cannot make under Blakely and Washington law. I hope to discuss the Van Buren case at some length later tonight.October 5, 2004 at 06:19 PM

So nice to have dataThe Minnesota Sentencing Guidelines Commission's report on long-term Blakely recommendations for Minnesota (available here) is a wonderfully rich and insightful document. Though there are many interesting facets of the report, I found most exciting the presence of hard data on the number of Minnesota cases really and clearly impacted by Blakely. As a result, the report confirmed for me the enormous disservice that flows from the US Sentencing Commission's failure to make publically available the data analysis that it has done about Blakely's impact on the federal system (lamented here).In the Minnesota report, we learn that only roughly 7% of all cases annually in Minnesota involve "aggravated departures" that depend on judicial fact-finding and we also learn that the facts underlying such departures have been contested in only about 1/3 of all departure cases. Put another way, the Minnesota report astutely highlight that significantly lower than the number of cases with Blakely factors in Minnesota is the number of cases with contested Blakely factors. Consequently, the report notes, less that 2.5% of all Minnesota sentencing cases would seem to be directly impacted by Blakely (and, explains the MSGC, even these cases "can be addressed with modifications to [the existing sentencing] procedures"). Without any information coming from the US Sentencing Commission, we can only hazard a guess as to whether the data from the federal system might be in any way comparable. Of course, because judicial fact-finding is essential to upward departures and upward adjustments in the federal system, there is no doubt that a much larger percentage of federal cases involve Blakely factors (although, as noted here, that number has been estimated at the wildly different levels of roughly 20%, 45% and 65%). But again, as the MSGC report highlights, the key issue may not be the total number of cases with Blakely factors, but rather the total number of cases with contested Blakely factors.

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As the Solicitor General has stressed, the US Sentencing Commission is supposed to be an independent agency in the Judicial Branch. In service to that role, I sincerely hope the USSC will share the data it does have at least directly with the Supreme Court and with all the parties to the Booker and Fanfan litigation. (I have been wondering lately about the propriety of the USSC, as a Judicial Branch actor, apparently sharing its data ex parte with just one of the litigants in Booker and Fanfan.) Moreover, as the USSC knows, the whole criminal justice world is watching how the federal system is dealing with Blakely; the USSC should be championing the values and importance of transparency and even-handedness in the development and dissemination of sentencing data. Put simply, the work of Minnesota Sentencing Guidelines Commission has provided an exemplary model of what sentencing commissions can do to help everyone through the Blakely turmoil. I hope other commissions will follow its sterling example, and soon.October 1, 2004 at 09:38 AM

More interesting state developments nationwideThough we all have lots of federal briefs to read, the state courts continue to work through an array of Blakely issues in an array of legal settings. For example, from Arizona yesterday we get an interesting decision in Aragon v.Wilkinson, 2004 WL 2093357 (Ariz. App. Sept. 21, 2004), which involved a "special action petition arguing that the trial court abused its discretion by granting the State's motion to withdraw from a plea agreement that the court had previously accepted." The State sought to withdraw the plea agreement because of concerns that Blakely would preclude the imposition of an enhanced sentence, and the trial court allowed the plea agreement to be withdrawn. But the Arizona appellate court decided it should:

grant relief by vacating the trial court's order, which permitted the State to withdraw from a plea agreement entered with Aragon and previously accepted by the court. In light of Blakely, the maximum sentence the court may impose absent jury findings must be based only on the facts admitted by Aragon. However, the court may convene a jury to find any facts supporting imposition of an aggravated sentence.

From Minnesota, we get another Blakely remand of an upward departure, see State v. Behr, 2004 WL 2093999 (Minn. App. Sept 21, 2004), as well as two cases which essentially avoid the issue of Blakely's retroactivity, see Davis v. State, 2004 WL 2093964 (Minn. App. Sept. 21, 2004); Morris v. State, 2004 WL 2094675 (Minn. App. Sept. 21, 2004). From Tennessee, in State v. Cooper, 2004 WL 2093262 (Tenn. Crim. App. Sept. 20, 2004), we get a Blakely remand in a DUI context.In California, we get another (unpublished) decision indicating that Blakely impacts the imposition of an upper-term sentence. See People v. Sidic, 2004 WL 2095547 (Cal. App. 2 Dist. Sept. 21, 2004). And in People v. Lemus, 2004 WL 2093427 (Cal. App. 4 Dist. Sept. 20, 2004), there is a bit of sparring over Blakely's applicability in California: the majority concludes that defendant Lemus' sentence is problematic after Blakely because "the trial court's decision to impose the upper term sentences was based on fact finding on matters not contained within the jury verdicts." But Judge Benke dissented on this point, contending that "California's sentencing

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scheme is entirely consistent with the principles discussed in Apprendi v. New Jersey and its progeny, Blakely."September 22, 2004 at 08:03 AM

Big Blakely rulings from the statesFederal courts have been relatively quiet on the Blakely front this week (perhaps because, as suggested here, federal judges are so busy sorting through piles of clerkship applications). But the state courts have been keeping Blakely busy; at least three consequential ruling from courts in California, Minnesota and Tennessee appeared on-line today: From California, the court in People v. George, 2004 WL 2051167 (Cal. App. 4 Dist. Sept. 15, 2004), held that Blakely precluded the imposition of an upper term sentence, and rejected the government's claims that the defendant has waived the issue and that any Blakely error was harmless. Here's some key language:

[B]ecause Blakely was decided after George's sentencing, George cannot be said to have knowingly and intelligently waived his right to a jury trial.... Under California's determinate sentencing law, where a penal statute provides for three possible prison terms for a particular offense, the court is required to impose the middle term unless it finds, by a preponderance of the evidence, that the circumstances in aggravation outweigh the circumstances in mitigation. The Attorney General argues that the imposition of an upper term sentence under the California determinate sentencing scheme is not the same as the imposition of a penalty beyond the standard range and thus does not implicate Blakely. The attempted distinction, however, is one without a difference. Although an upper term is a "statutory maximum" penalty in the sense that it is the highest sentence a court can impose for a particular crime, it is not necessarily the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," which is the relevant standard for purposes of applying Blakely....Here, the trial court relied on five aggravating factors as the basis for its decision to impose the upper term, to wit, that (1) the crime was serious and involved threats of great bodily injury to the victims; (2) the crime involved planning, sophistication and professionalism; (3) the current offense was more serious than the offense underlying George's prior conviction, which was itself serious; (4) at the time George committed the current offenses, he was on felony probation; and (5) George's prior performance on probation was poor.... [W]e conclude that the trial court was constitutionally entitled to rely only on the fact that George was on probation at the time of the charged offense as a basis for imposing an upper term sentence. Because this fact arises out of the fact of a prior conviction and is so essentially analogous to the fact of a prior conviction, we conclude that constitutional considerations do not require that matter to be tried to a jury and found beyond a reasonable doubt.... Thus, in accordance with the analysis of Blakely, the trial court was not required to afford George the right to a jury trial before relying on his status as a probationer at the time of the current offense as an aggravating factor supporting the imposition of the upper term.

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The Attorney General suggests that the propriety of this single factor as a basis for imposing an upper term sentence is sufficient to withstand George's constitutional challenge to the sentence.... [But] we cannot conclude that the elimination of four of the cited factors would not have made a difference in the court's sentencing decision here.... The matter is remanded for resentencing.

From Minnesota, the court in Minnesota v. Ingalls, 2004 WL 2050533 (Minn. App. Sept. 14, 2004), reserves the imposition of a "double-upward departure imposed by the district court." The court's ruling gets right to the point: "Like the sentencing departure in Blakely, the upward departure in this case is not based solely on facts reflected in a jury verdict or admitted by appellant; it is based on the district court's determination that aggravating factors were proved. Because the district court could not have considered whether basing appellant's sentence on these factors is permissible under Blakely, we remand for reconsideration of appellant's sentence in light of Blakely."From Tennessee, the court in State v. Syler, 2004 WL 2039809 (Tenn. Crim. App. Sept. 13, 2004), explains that, though Blakely was "not raised by either party, we are constrained to address the Defendant's sentence in light of Blakely." And the impact is consequential:

The Blakely decision calls into question the validity of Tennessee's sentencing scheme, insofar as that scheme permits trial courts to increase a defendant's presumptive sentence based upon enhancement factors found by the trial judge.... The presumptive sentence for a standard offender convicted of a Class A felony is twenty years.... Here, the Defendant was sentenced to twenty-one years for each of his Class A felonies, one year above the presumptive sentence, based upon several enhancement and mitigating factors found by the trial court at the sentencing hearing.... The trial court enhanced the Defendant's sentences for the Class A felonies on the bases that the victim was "particularly vulnerable because of age or physical or mental disability," and the Defendant "abused a position of public or private trust." Tenn. Code Ann. § 40-35-114(5), (16). Neither of these enhancement factors is reflected in the jury's verdict, nor was either factor admitted by the Defendant. Pursuant to Blakely, the trial court's enhancement of the Defendant's sentences on these bases was therefore erroneous. See State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL 1607002, at *10 (Tenn.Crim.App., Knoxville, July 19, 2004) (holding that the rule in Blakely precludes application of enhancement factors (5) and (16) where they have not been submitted to the jury and have not been admitted by the defendant).Pursuant to Blakely, the Defendant's sentences for his Class A felonies should not have been increased above the statutory presumptive sentence based upon statutory enhancement factors (5) and (16). Accordingly, we reduce the Defendant's sentences for his two Class A felonies from twenty-one years to twenty years.

September 15, 2004 at 10:06 PM

More Minnesota remandsAs discussed here and here, the Minnesota Sentencing Guidelines Commission's "short-term report" about Blakely sought to downplay the overall impact of Blakely on Minnesota state

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sentencing. And though it may be true that neither Minnesota nor any other state will experience the dramatic disruptions occurring in the federal system, the now regular pattern of Blakely remands from the state intermediate courts in Minnesota reveals that even "small" Blakely disruptions are still disruptive to the regularized administration of justice.Thus, today we get standard remands in three Minnesota state cases. See State v. Lenear, 2004 WL 1878770 (Minn. App. Aug. 24, 2004); State v. Juenke, 2004 WL 1878797 (Minn. App. Aug. 24, 2004); State v. Krueger, 2004 WL 1878998 (Minn. App., Aug. 24, 2004). There is nothing uniquely consequential about any of these remands, though I could not help but notice that all three cases involved sex offenses and Lenear involved a "quadruple upward durational departure"!August 24, 2004 at 05:45 PM

Spanning the StatesThough there has not been huge Blakely news from the states recently, many small state stories continue to gurgle. Ron Wright, who has my great thanks for a wonderful job of guest-blogging last week, has relayed to me some of these stories upon his return from the National Association of Sentencing Commission's national meeting. I'll share Ron's many insights in a series of posts, through first let me note(small) news from the state courts. In Minnesota this week there has been a spate of remands from the courts of appeals with instructions to the district court "to consider the application of Blakely." State v. Carlson, 2004 WL 1826141 (Minn. App. Aug. 17, 2004); see also State v. Rivera, 2004 WL 1826586 (Minn. App. Aug. 17, 2004); State v. Henderson, 2004 WL 1833936 (Minn. App. Aug. 17, 2004). Similarly, a recent Indiana court of appeals' decision, Wilkie v. State, 2004 WL 1843005 (Ind. App. Aug 18, 2004), dodges direct consideration of Blakely in a footnote which states that the court is "mindful" of Blakely, but "leave[s] for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B)."This thoughtful news story effectively canvasses state sentencing developments, and explains why state Blakely stories have been slower to develop:

Blakely may have a somewhat more limited impact on the functioning of state sentencing systems because judicial fact-finding is used to determine sentences in only a small fraction of state-level cases. Plus, the nature of state sentencing systems makes it easier for state courts to sidestep the ruling until more permanent statutory solutions are enacted.

The article goes on to note, however, that we might just be noticing a period of calm before a major legislative storm:

Blakely could have considerable state-level repercussions, especially in states with sentencing structures similar to Washington's.... Daniel Wilhelm, director of state sentencing and corrections programs at the Vera Institute of Justice ... said he "absolutely" expects statehouses to be flooded with legislation aimed at tailoring state sentencing guidelines to bring them into compliance with Blakely, when legislatures

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reconvene next year. "People seem to be waiting to act until the legislatures reconvene in the new year," Wilhelm said.

Finally, this article notes that Kansas might serve "as a model for other states now looking to reform their systems of presumptive sentencing guidelines" because it "adopted a bifurcated system after the state supreme court in 2001 invalidated its system of presumptive sentencing guidelines." Interestingly, Ron had this report about views expressed at the NASC meeting concerning the "Kansas solution": From Ron about the Kansas system:Various academics, judges, prosecutors, sentencing commissioners, and defense attorneys [at the NASC meeting] related some of the events in Kansas. Kansas holds special interest for Blakely purposes, because a 2001 Kansas Supreme Court case, State v. Gould, anticipated the outcome in Blakely and struck down the use of judicial factual findings to authorize an aggravated sentence. The Kansas legislature responded by passing a statute that provides for bifurcated jury proceedings to find facts that could authorize an aggravated range sentence. As a result, Kansas now has a two-year head start in the use of bifurcated jury proceedings. There have been very few bifurcated jury proceedings held in the Kansas courts. In most counties, there have been none at all; statewide, there may have been less than a half dozen. When these proceedings do occur, attorneys and judges estimated that they only added one to three hours to the jury trial. Why so few bifurcated jury proceedings in Kansas? One explanation could be the fear of the unknowns and the hassle that could accompany the new extended jury proceedings. Another is the power of parties to negotiate an aggravated sentence: defendants might happily accept an aggravated range sentence in exchange for a reduction in the charges filed. But judges and attorneys from Kansas relied on several features of Kansas law for more specific explanations. They noted that consecutive sentences now take the place of aggravated sentences. Under Kansas law, the judge can impose consecutive sentences up to double the length of the most serious charge if there is a conviction for a second count. Prosecutors have begun more actively to charge additional counts, making possible these consecutive terms. For example, drug deals can also be charged as conspiracies and/or violations of the drug tax law. Judges and lawyers in Kansas also point out that the sentences for the most serious offenses are already pretty high in the presumptive range. Thus, for the most important cases, aggravated sentences may not appear to be that attractive to prosecutors. August 19, 2004 at 12:44 AM

Minnesota’s Commission SpeaksPost from Ron: This afternoon the Minnesota Sentencing Guidelines Commission conveyed its Blakely report to the Minnesota Governor. Here is a link to the report. And here is the money quote:

The recent Blakely v. Washington decision directly impacts neither the constitutionality nor the structure of the Minnesota Sentencing Guidelines. However, the decision does affect certain sentencing procedures pertaining to aggravated departures and specific sentence enhancements that will need to be modified to meet the constitutionality issues

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identified under Blakely. Those procedures can be corrected, as demonstrated by the state of Kansas, who addressed this very issue in 2001, with limited impact on the criminal justice system as a whole. The impact of Blakely on sentencing in Minnesota, while temporarily disruptive, is limited in scope and can be addressed within the current sentencing guidelines scheme.

I come to sentencing questions with a keen interest for state systems, since the state courts (collectively) process far more defendants than the federal courts and offer more interesting and hopeful variety in their solutions to problems of crime and justice. So you'll be hearing more from me about this Minnesota report after I've read it. In the meantime, you've now got your own copy to peruse. What do you think? August 6, 2004 at 01:58 PM

Will state sentencing commissions do better?Because no state sentencing system is (yet) experiencing the turmoil now transpiring in the federal sentencing system (details here), it is understandable (and even perhaps defensible) that state sentencing commissions have not yet been active participants in the discussion of sentencing reforms after Blakely. Nevertheless, I visited today the home pages of most of the state sentencing commissions and was a bit troubled to find no mention of Blakely on any of the websites except Pennsylvania's (and the brief Pennsylvania discussion of Blakely is now a month old).I was quite encouraged to see, however, on the website of the New Mexico Sentencing Commission that there are plans in place to discuss Blakely at the upcoming Conference of the National Association of Sentencing Commissions, which is taking place next month in Sante Fe. (For details, including information on how to get an affordable NASC T-shirt, click here.) I was also pleased to see that the "NASC is setting up an internet page through the US Sentencing Commission for individual states to submit information, documents, recommendations, proposed legislation or reports related to their state's response to Blakely." Here is a link to that page, which currently has only limited information from Kansas, Michigan and Pennsylvania, but valuably seeks "to have each state provide information so it can serve as a clearinghouse of information on the states' responses."Finally, according to my Blakely calender, at least one state sentencing commission is going to be speaking publicly soon: this Monday, I believe, marks the deadline that Minnesota Governor Tim Pawlenty set for a short-term report from the Minnesota Sentencing Guidelines Commissionon concerning his state's sentencing procedures in the wake of Blakely (background here). I am very eager to see what this well-regarded Commission is going to say (and perhaps not say) about Blakely.July 30, 2004 at 05:46 PM

More state Blakely news in Minnesota and elsewhereAfter Wednesday was a huge Blakely day in the federal system, it looks like today might be dominated by state news (and particularly by northern states starting with an M). As first reported here, the Minnesota Court of Appeals issued the state's first major Blakely ruling ealier

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this week in the course of overturning a sex offender's 40-year prison sentence. To quote Paul Harvey, here's "the rest of the story": In State v. Whitley, the Minnesota Court of Appeals holds that the findings of fact under Minnesota's pattern sex-offender statute need now be proved to a jury beyond a reasonable doubt. As noted in the very helpful e-mail report to me about the case:

Interestingly, the Court indicates that Apprendi and a Minnesota Supreme Court case called Grossman, and not just Blakely, dictate this result. The remand instruction is cryptic, as Minnesota has no system of sentencing juries or anything of the sort (at least not yet).

In news from states not starting with an M, this well-done article from the Knoxville News-Sentinel reports on a Tennessee decision from an intermediate appellate court which reduce a defendant's sentencing by a year in a child abuse case following Blakely.And, Marcia Oddi over at the Indiana Law Blog has noteworthy posts here and here about the likely impact of Blakely on Indiana state sentencing.July 22, 2004 at 02:15 PM

Tracking Blakely developments in the statesAccording to this story, the Blakely earthquake had its first aftershock in a Minnesota state court on Tuesday when the Minnesota Court of Appeals overturned a sex offender's 40-year prison sentence. Apparently, the state guidelines called for a sentence of 57 months, but the trial judge had imposed a 40-year sentence based on the conclusion that the defendant was a patterned sex offender.Helpfully, for those interested in tracking Blakely's impact and the developments in the state courts, the National Center for State Courts has already produced this very helpful report entited " Blakely v. Washington : Implications for State Courts" . This report not only is rich with analysis of what Blakely could mean for state sentencing systems and potential responses, but it also includes a terrific appendix detailing "Sentencing Practices and Other Relevant Policies in the States." Among the many interesting analytical points in the memo is the important observation that "probation and parole can be affected by Blakely under certain circumstances."In addition, there are a number of valuable state sentencing links within the NCSC report, including a link to this memo by Robert L. Farb of The Institute of Government at the University of North Carolina, entitled "Blakely v. Washington and Its Impact on North Carolina’s Sentencing Laws." July 21, 2004 at 02:28 AM

Minnesota’s a leader againNot long after I suggest that the feds learn from the states, I see this report of how Minnesota is sensibly handling Blakely:

Minnesota Gov. Tim Pawlenty ordered a review of the state's sentencing procedures so they'll comply with a recent U.S. Supreme Court ruling on Friday. He said the court

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decision "appears to have major ramifications" for Minnesota's criminal justice system and asked the Sentencing Guidelines Commission to make both short-term and long-term recommendations for changes. The short-term recommendations will be due in 30 days.

Minnesota is rightly praised for leading the states in the development of sound guideline sentencing reforms --- see, e.g., Richard Frase, Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective, 12 Federal Sentencing Reporter 69 (1999) --- and it is nice to see Minnesota taking the lead again. July 2, 2004 at 06:50 PM

Missouri

Interesting state Blakely reportsTwo interesting newspapers stories this morning on the Blakely beat:

This article from Oregon discusses the state's continuing efforts to deal with the fallout from Blakely. This article discusses the Oregon Supreme Court's ruling last week in Dilts (detailed here), and notes that lawyers now "disagree about what happens next in Oregon." The article also indicates that these matters are "under review by a task force appointed by Gov. Ted Kulongoski and headed by [state Attorney General] Myers and by a joint legislative committee."

This article from Missouri mixes Blakely with sports, as it reports that Leonard Little, a member of the St. Louis Rams, is invoking Blakely to try to get his pending felony drunken driving charge dismissed. As the article explains, Little's lawyers have argued in papers "filed with the Missouri Supreme Court that by Missouri law, a judge, not a jury, has decided that Little is a persistent offender, and the statute that makes his pending case a felony therefore fails to pass muster."I recall that this mysterious blogger encouraged me to watch a lot of football to take my mind of of Blakely and Booker/Fanfan. But apparently even football players have Blakely claims to make.UPDATE: And here's an article from Minnesota detailing that a former state judge is invoking Blakely in an effort to reduce his prison sentence for stealing money from a mentally disabled woman.December 21, 2004 at 09:56 AM

New Jersey

State Blakely cases ring in the new yearI joked here that I was waiting to see which court would be the first to issue a noteworthy Blakely ruling in 2005. Perhaps fittingly, the honor goes to the Washington state courts, which already has two new year Blakely rulings on-line: State v. Fero, 2005 WL 15171 (Wash. App. Div. 2, Jan. 04, 2005) and State v. Cartwright, 2005 WL 12021 (Wash. App. Div. 1, Jan 03, 2005). And, for those scoring at home, we also have on-line Blakely decisions from California

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and New Jersey this new year. See People v. Standifer, 2005 WL 15449 (Cal. App. 2 Dist. Jan. 04, 2005); State v. Vasquez, 2005 N.J. Super. LEXIS 4 (NJ App. Div. Jan. 4, 2005).The Fero case is the most notable of the bunch because it (1) reverses a sentence based on Blakely, (2) concludes that "the plain line of Apprendi, Neder, and Blakely, [establish that a Blakely violation] is a structural error and harmless error cannot apply," but (3) decides that the trial court may on remand "empanel a jury to consider aggravating factors without violating double jeopardy or the separation of powers." On the second point, one judge weighs in with a thoughtful "dissent from that portion of the opinion holding that Blakely violations are structural errors requiring automatic reversal." Significantly, as detailed here, an Illinois appellate court has also concluded that a Blakely error ought now to be viewed as structural error and not allow for harmless error analysis, although that court felt bound to conduct harmless error analysis because of rulings of its state Supreme Court. It is thus increasingly evident that the nature of Blakely error is another tough doctrinal issue that SCOTUS might need to resolve in the near future.January 4, 2005 at 11:27 PM

Sentencing Commission work in NJAs previously discussed in this post, New Jersey has recently created a Commission to Review Criminal Sentencing, and that Commission has now finished its "First Interim Report to the Governor and Legislature." I am pleased to be able to provide that report for downloading below.This brief report provides more background than substance, but even its quick discussion of the state of sentencing in New Jersey and the work of the Commission to date provides a fascinating window into challenges that most states are facing in the arenas of sentencing and corrections in 2005. (And this terrific editorial today from NorthJersey.com makes clear that the press is going to be watching as the NJ Commission tries to meet these challenges.)I recommend the entire report, though I particularly like the optimism in this closing paragraph:

In summary, we commend the Legislature and Executive Branch for their prescience by establishing an entity well-suited to guide both with regard to the profoundly changing landscape of sentencing law, practice and policy. Moreover, the Commission has progressed much since its inception to provide the Legislature and other "stakeholders" with the guidance necessary to promote a sentencing system that simultaneously protects public safety, fosters a greater degree of fairness, and provides meaningful and cost-effective responses to crime. The Commission is wholly committed to these efforts and plans to provide the blue print that will reshape and improve the State's sentencing scheme and penal system.

Download nj_sent_report.doc January 3, 2005 at 04:17 PM

Another state Supreme Court taking up BlakelyFrom a lawyer in New Jersey I got the news that the New Jersey Supreme Court has granted certification on the Blakely claims in State v. Abdullah, 372 N.J. Super. 252 (App. Div. 2004). I reported on Abdullah in this post here back in October, and just this past week noted here the

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apparent mess, as report by the NJ Attorney General, that Blakely is making of Garden State sentencing.By my very rough count, there are now perhaps as many as a dozen state supreme courts actively considering a host of Blakely issues (although comprehensively tracking all the issues and the status of the developing state Blakely jurisprudence is, as I suggested here and here, more than I can manage).December 15, 2004 at 05:39 PM

The story of Blakely in the real Apprendi-landThough New Jersey does not have elaborate sentencing guidelines, it does have an array of structured sentencing laws that Blakely may disrupt. (Or course, the Apprendi case came from New Jersey, so the Garden State is quite familiar with this area of constitutional jurisprudence.) And, as detailed here and in a memo provided here, the appellate courts in New Jersey are working hard to

make sense of Blakely. NJ attorney Steve Sanders — who wrote an amicus brief for the Association of Criminal Defense Lawyers of New Jersey in the the major New Jersey case of State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004) — was kind enough to pass along the petition filed by the NJ Attorney General seeking state supreme court review of the Natale decision. The petition, which includes an appendix with major Blakely rulings from NJ lower courts, can be downloaded below.In addition to providing the state's argument for why Blakely should not disrupt NJ sentencing laws and practices, the petition details the disparate NJ lower court Blakely rulings. (Just a few of the other intra-states disputes over Blakely's meaning and application are noted here.) And the petition, in language reminiscent of the pleas by the Acting Solicitor General urging the US Supreme Court to grant cert. in Booker and Fanfan, highlights dramatically the impact of the Blakely earthquake in New Jersey:

[T]here is a clear split of authority among Appellate Division panels on [Blakely]. The lack of resolution of this issue has caused tremendous confusion in the trial courts, which will only continue until this Court resolves this issue.Uncertainty regarding the effect, if any, of the Blakely opinion on our ordinary term sentencing system has had a paralyzing effect on sentencing judges, defense attorneys, and prosecutors who are unable to predict and agree on how this Court will ultimately interpret Blakely. In the past five months since the Blakely opinion was issued, plea bargaining, jury trials, and sentencing proceedings continue to be affected by this overwhelming confusion and doubt.

Download nj_states_petition_for_certification.pdf December 12, 2004 at 10:23 AM

Blakely federalism in actionWith this week's US Sentencing Commission hearing (highlights here and here, commentary coming soon) and a ruling in Booker and Fanfan likely only a few weeks away, it is dangerously

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easy get caught up in all the compelling federal Blakely stories. But I continue to be most amazed as I observe and try to monitor the dynamic (and now very fast moving) state Blakely dramas that are unfolding nationwide.In posts here and here, I documented a number of the major recent state ruling from the past week alone. And to that list we should now add State v. Henderson, 2004 WL 2608286 (Ariz. App. Div. 1, Nov. 18, 2004), which weighs in on the important question (recently discussed in Illinois as noted here) concerning whether Blakely error is "structural error requiring automatic reversal." (Henderson holds, by a 2-1 vote, that it is not.)In addition, I can now share noteworthy commentary on some of these state developments: (1) here is a newspaper article from California on a discussing Blakely reversal; (2) here are thoughtful comments suggesting Ohio courts are illegitimately dodging Blakely; and (3) for downloading below is an impressive set of comments about the aftermath of the major New Jersey ruling in State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004) prepared by Steve Sanders, who wrote an amicus brief in the case for the Association of Criminal Defense Lawyers of New Jersey.Download blakely_in_nj_after_natale.doc November 18, 2004 at 03:44 PM

So many more state Blakely rulingsThe noteworthy Blakely rulings from state courts continue to come in at a fast and furious pace (see here for more recent evidence). Already this week alone, we have more consequential rulings from Indiana, Ohio, New Jersey and Washington (and, of course, the obligatory weekly collection from California). Also, just on line is an important Delaware ruling from last week. Though all of these decisions deserve fuller discussion, today the best I can reasonably do is provide summary highlights. I encourage readers to use the comments to note any exceptional features of these cases that merit spotlighting:

In Benge v. State, 2004 Del. LEXIS 506 (Del. Nov. 12, 2004), the Delaware Supreme Court declared "Blakely does not impact Delaware's sentencing scheme because the SENTAC guidelines are voluntary and non-binding."

In Lampitok v. State, 2004 WL 2590817 (Ind. App. Nov. 16, 2004), the court drops a footnote to give the "prior conviction" exception a broad application (INCourts provides more details here);

In State v. Berry, 2004 WL 2580555, 2004-Ohio-6027 (Ohio App. 12 Dist. Nov. 15, 2004), the court articulates two bases on which the court claims Ohio's sentencing system completely escapes the application of Blakely;

In State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004), the court concluded New Jersey's presumptive sentencing scheme is generally impacted by Blakely (and, again, INCourts covers the highlights here);

In State v. Alkire, 2004 WL 2580772 (Wash. App. Div. 1, Nov 15, 2004), the court upholds a sentence based on the "prior conviction" exception (and does despite the fact the defendant's "invites this court to abandon the 'crumbling foundation' of Almendarez-Torres and the prior conviction exception").

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And, for continuing coverage of the continuing stream of California cases, remember that the First District Appellate Project is here keeping up with recent major rulings, and Jonathan Soglin here notes a California published opinion that apparently breaks a little new ground.November 18, 2004 at 09:25 AM

Light weekend readingThough I have weekend plans to finish my draft article on Conceptualizing Blakely , and to watch the start of what I hope will be a great World Series, and to do a bit of non-Blakely blogging at Crescat Sententia, I am also talking home a bit of light reading this weekend. I just received a copy of a brief filed on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey And the Office of the Public Defender in a big Blakely case from New Jersey, and to a Blakely-addict like me it looks like a fun read. Here it is for downloading for any other Blakely gluttons out there:Download natale_amicus.pdfOctober 22, 2004 at 05:10 PM

The Blakely earthquake hits New JerseyI just received from a friend in the Garden State what he says "are the first two mid-level appellate opinions addressing Blakely" in New Jersey. Both opinions can be downloaded below.As the friend explains:

Both cases involve a murder conviction, and (non-capital) murder is sui generis under NJ law, providing for an automatic sentence of at least 30 years (or b/w 30 years to life). But as to non-murder counts, one of the two opinions appears to reject the Blakely challenge to a separate count of conviction in dictum, but concludes that any error is harmless because the other aggravators the judge found involved prior convictions which do not fall within Blakely's/Apprendi's holding.

I have only had a chance to give both cases a very quick read, and each turns in part on a particular conception and articulation of New Jersey's statutory sentencing laws. But I was especially excited to see the New Jersey appellate court in NJ v. Abdullah, A-1982-02T4 (N.J. App. Oct. 12, 2004), articulating and relying heavily upon an offense/offender distinction in the application of Blakely. (Note that I (poorly) discuss this sort of distinction here, and I plan to post soon a draft article which better explains why I believe an offense/offender distinction provides a sound and appropriate way to conceptualize (and narrow) the import and impact of Blakely.)Download nj_v. Abdullah.pdfDownload nj_v. King.pdf UPDATE: The lawyer who sent me these NJ cases suggested that I note that there is another significant Blakely case, NJ v. Natale, pending unheard in the appellate division, and that in Natale the defendant has moved for direct certification to the NJ Supreme Court. I am able to post below an "amicus" letter supporting the defendant's motion for direct certification in Natale, which stresses that Natale presents the New Jersey Blakely issue "cleanly" because there are no prior conviction issues involved. Download nj_amicus_letter.pdf

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October 12, 2004 at 11:49 AM

New Mexico

Will state sentencing commissions do better?Because no state sentencing system is (yet) experiencing the turmoil now transpiring in the federal sentencing system (details here), it is understandable (and even perhaps defensible) that state sentencing commissions have not yet been active participants in the discussion of sentencing reforms after Blakely. Nevertheless, I visited today the home pages of most of the state sentencing commissions and was a bit troubled to find no mention of Blakely on any of the websites except Pennsylvania's (and the brief Pennsylvania discussion of Blakely is now a month old).I was quite encouraged to see, however, on the website of the New Mexico Sentencing Commission that there are plans in place to discuss Blakely at the upcoming Conference of the National Association of Sentencing Commissions, which is taking place next month in Sante Fe. (For details, including information on how to get an affordable NASC T-shirt, click here.) I was also pleased to see that the "NASC is setting up an internet page through the US Sentencing Commission for individual states to submit information, documents, recommendations, proposed legislation or reports related to their state's response to Blakely." Here is a link to that page, which currently has only limited information from Kansas, Michigan and Pennsylvania, but valuably seeks "to have each state provide information so it can serve as a clearinghouse of information on the states' responses."Finally, according to my Blakely calender, at least one state sentencing commission is going to be speaking publicly soon: this Monday, I believe, marks the deadline that Minnesota Governor Tim Pawlenty set for a short-term report from the Minnesota Sentencing Guidelines Commissionon concerning his state's sentencing procedures in the wake of Blakely (background here). I am very eager to see what this well-regarded Commission is going to say (and perhaps not say) about Blakely.July 30, 2004 at 05:46 PM

New York

Consecutive problems?As I noted here, the issue of Blakely's applicability to judicial imposition of consecutive sentences is a hugely important question that the Supreme Court will likely need to address before long. This is an especially important issue because even states that do not have obvious Blakely issues in its basic sentencing procedures may have rules about the imposition of consecutive sentences which implicate Blakely.

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Evidence of these realities comes from a New York ruling last week, which just appeared on-line. In NY v. Murray, 2004 NY Slip Op 24388; 2004 N.Y. Misc. LEXIS 1776 (Oct. 15, 2004), the defendant filed a pro se motion challenging the imposition of consecutive sentences because it was based on "a factual finding that 'defendant formed a new intention. . . to shoot and kill, [which] is not reflected or supported by the facts found in the jury's verdict' (defendant's affidavit)." The court in Murray articulated the defendant's claim and the claim's rejection this way:

Defendant also contends that the determination that the new intent and the act of shooting were an "afterthought" which, under New York law, warrants a consecutive sentence, must now be submitted to the jury by virtue of Apprendi v. New Jersey, 530 U.S. 466 (2000). In other words, defendant contends that New York's statutory law permitting consecutive sentences for two or more offenses based on factors arguably not determined by a jury violates defendant's Sixth Amendment right to a trial by jury. No New York court appears to have considered this question. Notably, it was not raised on defendant's direct appeal. In Apprendi v. New Jersey, supra, at 474, the Supreme Court noted that, in deciding the constitutional question of whether a sentencing court could exceed the statutorily authorized maximum sentence for a particular crime based upon a judicial determination of racial bias, it was not addressing the question of whether the sentencing court could have achieved the same result by imposing consecutive sentences for the several counts on which that defendant was convicted. Several courts have considered the question raised here. The Supreme Court of Illinois held, "we find that Apprendi concerns are not implicated by consecutive sentencing." People v. Wagener, 752 N.E.2d 430 (2001). See also People v. Vaughn, 2004 WL 2223299 (Cal. App. 2 Dist. 2004); Hood v. McAdory, 2004 WL 251830 (N.D. Ill. 2004). Likewise, this court finds no basis to extend Apprendi to prohibit consecutive sentences imposed for separate counts of an indictment where no single sentence exceeds the statutorily authorized maximum sentence. Some would argue that the Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), now requires that the determination as to whether a certain statutory basis for consecutive sentences [PL 70.25 (2)] has been established must be submitted to the jury because it is a factual question. This court considers the question of whether consecutive sentences are authorized to be a legal question based on the jury's verdicts. Until the Supreme Court, the New York Court of Appeals or the Appellate Division holds otherwise, this court will not invalidate New York's statutory scheme that makes that determination a judicial one.

October 21, 2004 at 11:50 AM

North Carolina

The state of Blakely in various statesThis morning's WSJ article (detailed here) provides a great review of the state of Blakely in the federal system, but I find the state of Blakely in the states an even more interesting and dynamic story. Indeed, as detailed in some of my recent posts on the topic, the state Blakely story is too

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fast-moving and dynamic for me to track comprehensively. (More background here and here and here.)Fortunately, there other folks covering the Blakely story in particular states, and I can just report and link to their efforts. Today I have helpful reports on Indiana, North Carolina and Texas.INDIANA: As noted before here, Indiana's Blakely story is being well-covered by state lawyers there, and now I see that Michael Ausbrook at INCourts has this post which reviews all the Indiana cases that mention Blakely and their current status.NORTH CAROLINA: This newpaper article provides a very effective review of the story of Blakely in North Carolina. The article also details that the a subcommittee of the NC Sentencing and Policy Advisory Commission "has recommended that aggravating factors and some issues related to prior records be submitted to a jury to determine if they exist."TEXAS: With great thanks to Scott Henson at Grits for Breakfast, I can provide a link to this terrific research brief from the Texas Senate Research Center reviewing the story of Blakely in Texas. Here is the astute conclusion of this effective report:

Because Texas does not have the sort of determinate sentencing guidelines used by the State of Washington or the federal government, Blakely will not significantly impact Texas law. However, there are specific statutes in the Code of Criminal Procedure that authorize a judge to make an affirmative finding of fact that may be used to increase the defendant’s punishment, but the statutes are not clear whether this affirmative finding must be based on facts proved beyond a reasonable doubt to the trier of fact. These and any similar statutes could be subject to challenge under Blakely.

December 28, 2004 at 11:07 AM

Blakely-ization plans in North CarolinaFollowing up on this post about state Blakely developments , a lawyer was kind enough to forward to me a recommendation to the North Carolina legislature from the NC Sentencing Commission's Blakely Subcommittee concerning how the state ought to respond to Blakely. You can download the two-page "draft final report" below, and I was amazed and impressed with how easy the report makes Blakely-ization sound.Here's how the proposed North Carolina Blakely reforms were summarized for me:

The recommendation is to keep the three range grid in place (there had been talk of blending the aggravated range and presumptive range into one to solve the problem). Aggravators set out in the statute are incorporated by reference into indictments, but "nonstatutory aggravators" must be pled. A separate jury phase is allowed but not mandated. It would be up to the judge whether to bifurcate the guilt/innocence and sentencing stage. An amendment to the recommendation, not included in the information provided, requires the state to give the defense notice ten days before trial of the aggravators that the state contends exist. I have tried cases for thirty years. All in all, I think this will be workable.

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December 8, 2004 at 10:56 AM

Responding to Blakely in North CarolinaThis article in the New Bern Sun Journal from North Carolina reports that a subcommittee of the North Carolina Sentencing and Policy Advisory Commission "has recommended that aggravating factors and some issues related to prior records be submitted to a jury to determine if they exist."In the article, John Madler, the associate director of the Commission, highlighted why this recommended modification of N.C. sentencing practice, and more generally "the Blakely earthquake," are not that disruptive in North Carolina:

The change would likely affect a comparatively small number of cases, he said. "Roughly 7 percent of the people who go to prison have an aggravated sentence," Madler said.... The U.S. Supreme Court's ruling would likely have less of an effect in North Carolina than in some other states because factors such as previous records are already taken into account in the law and are not left up to a judge to decide, Madler said. "It's not that big of a deal in North Carolina, compared to other states," Madler said. "It's just a piece of our process, rather than a whole structure change."

November 14, 2004 at 08:26 AM

Now, the more intersting story...Though I still have pages and pages of undeveloped notes from yesterday's Booker and Fanfan argument, I have already worn myself out with the half-dozen posts about the event to be found below. Moreover, when all is said and done, I think the story of Blakely in the states is even more interesting (and often less discouraging) that the federal Blakely story. And, as is now true nearly every day, there are new state Blakely developments to report.Specifically, from North Carolina, today we get a Blakely reversal in State v. Harris, 2004 WL 2215184 (N.C. App. Oct. 05, 2004), in a case involving the imposition of an aggravted term based on a judicial finding that the defendant's offense was "especially heinous, atrocious, or cruel." From Minnesota, we get remands in two cases involving upward departures so that sentencing courts can consider the impact of Blakely. See Santiago v. Minnesota, 2004 WL 2221929, (Minn. App. Oct. 05, 2004); Minnesota v. Seelye, 2004 WL 2219663 (Minn. App. Oct. 05, 2004). And, of course, no week would be complete without a California Blakely cases from the state's intermediate court, and in People v. Gaitan, 2004 WL 2212089 (Cal. App. 1 Dist. Oct. 04, 2004) we get a thoughtful remand for resentencing on Blakely grounds.But the big state news today comes from Blakely's home state, Washington: an intermediate appellate court decision in State v. Van Buren, 2004 WL 2222263 (Wash. App. Div. 2 Oct. 05, 2004), makes an array of (interesting and debatable) rulings about what sorts of findings a judge can and cannot make under Blakely and Washington law. I hope to discuss the Van Buren case at some length later tonight.October 5, 2004 at 06:19 PM

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The Blakely earthquake hits North CarolinaIn what I believe are the first two cases from the North Carolina state courts dealing with Blakely, today in State v. Speight, 2004 WL 1960082, (N.C. App. Sept. 07, 2004) and State v. Allen, 2004 WL 1960333 (N.C. App. Sept. 07, 2004), two different appellate panels found, without much hesitation, that Blakely rendered unconstitutional aspects of North Carolina's state sentencing system.In Speight, the court minced no words in identifying the Blakely problem and in rejecting the government's argument that a Blakely error should be deemed harmless:

Defendant received two consecutive aggravated sentences of a minimum of twenty and a maximum of twenty-four months for involuntary manslaughter and a consecutive aggravated sentence of twelve months for impaired driving. As the jury did not decide the aggravating factors considered by the trial court, defendant's Sixth Amendment right to a trial by jury was violated. See Blakely. Nonetheless, the State argues that under a harmless error analysis, defendant's sentences should be upheld. However, as explained in State v. Allen, "[o]ur Supreme Court has definitively stated that when 'the [trial] judge [has] erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing.'" Accordingly, we grant defendant's motion for appropriate relief and remand this case to the trial court for resentencing consistent with the holding in Blakely.

In Allen, the court more fully discusses how the provision for imposing "aggravated sentences" in North Carolina "appears substantially similar to the portion of Washington's criminal sentencing statute analyzed in Blakely." Interestingly, according to the Allen court, state lawyers in North Carolina have been conceding after Blakely that aggravated range sentencings constitute a violation of a defendant's constitutional rights. (This apparently proper concession of Blakely's reach by North Carolina lawyers of course stands in sharp contrast to what we are seeing from federal lawyers in the federal courts, as discussed here and here).Filling out its rejection of the state's harmless error claims, the Allen court explains:

Our Supreme Court has definitively stated that when "the [trial] judge [has] erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing." State v. Ahearn, 307 N.C. 584, 602 (1983). In the case sub judice, it is undisputed that the trial judge unilaterally found the existence of an aggravating factor and, thereupon, sentenced defendant in the aggravated range. The State's argument, when viewed in light of the ruling articulated in Ahearn, must fail, as this Court should properly remand the case for resentencing. Accordingly, we grant defendant's motion for appropriate relief and remand this case to the trial court for resentencing consistent with the holding in Blakely.

September 7, 2004 at 03:22 PM

Word on the Street in NCPost from Ron: I spoke earlier this week with the prosecutors in an urban office in North Carolina about Blakely,

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and their comments fit in fascinating ways with the observations of the Minnesota Sentencing Commission (background here). As in Minnesota, the basic structure seems to be holding water, and the number of affected cases is pretty small. Basically, these prosecutors were not terribly worried about Blakely in the short run. Although the case will almost surely prevent all "aggravated range" sentences (the North Carolina equivalent of upward departures), those were only 7% of the sentences imposed last year. For high-volume crimes like drugs or property offenses, it is simply not worth the effort right now to move from the presumptive range (say, 16 to 20 months) up to the aggravated range (say, 20 to 24 months). Volume, combined with the limited benefits of upward adjustments, convince most prosecutors not to bother with new techniques to obtain jury findings. That being said, there are two settings that might prove more worrisome for these prosecutors in the future. First, they anticipate filing superseding indictments and perhaps asking for bifurcated jury proceedings in homicides and serious violents crimes, because the potential upward adjustments to sentences are much larger here. And second (consistent with comments from Minnesota), they believe that the "custody status" point (see background memo by Robert Farb linked here) will be important to them in a fairly large number of cases, where the extra point can bump a defendant into the next highest criminal history category. August 8, 2004 at 12:21 AM

Tracking Blakely developments in the statesAccording to this story, the Blakely earthquake had its first aftershock in a Minnesota state court on Tuesday when the Minnesota Court of Appeals overturned a sex offender's 40-year prison sentence. Apparently, the state guidelines called for a sentence of 57 months, but the trial judge had imposed a 40-year sentence based on the conclusion that the defendant was a patterned sex offender.Helpfully, for those interested in tracking Blakely's impact and the developments in the state courts, the National Center for State Courts has already produced this very helpful report entited " Blakely v. Washington : Implications for State Courts" . This report not only is rich with analysis of what Blakely could mean for state sentencing systems and potential responses, but it also includes a terrific appendix detailing "Sentencing Practices and Other Relevant Policies in the States." Among the many interesting analytical points in the memo is the important observation that "probation and parole can be affected by Blakely under certain circumstances."In addition, there are a number of valuable state sentencing links within the NCSC report, including a link to this memo by Robert L. Farb of The Institute of Government at the University of North Carolina, entitled "Blakely v. Washington and Its Impact on North Carolina’s Sentencing Laws." July 21, 2004 at 02:28 AM

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North Dakota

Blakely back in the newsThe coming week should have plenty of Blakely news with the Solicitor General's office and the US Sentencing Commission both due to submit briefs in the Booker and Fanfan cases on Wednesday. In the meantime, the newspapers are again finding other noteworthy Blakely stories.From Tennessee articles here and here report on the recommendation made by the Task Force appointed by Governor Phil Bredesen that a special session of the Tennessee General Assembly is not needed to deal with Blakely. Background on the Tennessee Task Force can be found here and here, and this recent news article thoughtfully explains why the "Task force on sentencing has its work cut out for it." This article also details the variations in Tennessee sentencing practices in the wake of Blakely:

[Cleveland attorney James F.] Logan said some judges are ignoring Blakely. Others, he said, insist it mandates only minimum sentences, ignoring even prior convictions that the nation's high court clearly said could be used to boost sentences. At least two judges are now holding separate sentencing hearings, allowing juries to decide which factors a judge can use, if any, to ratchet up a criminal's sentence. They are doing so even though there is no law on the books that allows that process, known as a bifurcated hearing, in any case other than those in which the death penalty or life without parole is sought as punishment.

In other state news, this article discusses a peculiar ruling from a Michigan state judge who apparently declared Michigan's state sentencing guidelines unconstitutional in order to be able to sentence a child molester to a much longer prison sentence than the guidelines provided. From the federal desk come two Blakely stories out of the Eighth Circuit. This article discusses a factually and legally interesting case involving a former Kansas City pharmacist who received a 30-year prison term for diluting chemotherapy drugs. And this article discusses a North Dakota perjury case in which all parties agreed to put sentencing on hold until November 10 with the hope that federal sentencing law will be clearer at that time.August 28, 2004 at 09:20 AM

Ohio

 Interesting state Blakely reportsAfter a long but enjoyably uneventful trip to attend this conference, I am now on-line and on west coast time. And, upon checking my e-mail, I was pleased to find two reports about recent state Blakely developments. I hope the helpful correspondents won't mind me sharing their text verbatim:

From a correspondent in Alaska: "The Alaska Court of Appeals issued a decision in Alaska v. Gibbs, No. A-8953 (Alaska App. Jan 5, 2005), involving a straight application

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of Blakely. The court held that a sentence of unsuspended imprisonment that was less than the statutory maximum did not violate Blakely. The possibility that additional imprisonment might be imposed, if the defendant's probation were revoked, and thus violate Blakely was not yet ripe."

From a correspondent in Ohio: "The Ninth District Court of Appeals ruled today that Blakely does not apply to Ohio sentencing statutes calling them an indeterminate sentencing scheme. Cases are State v. Jenkins CA 22008 [2005 Ohio 11; 2005 Ohio App. LEXIS 5 (Ohio App. Jan. 5, 2005)] and State v. Rowles CA 22007."

In addition, I see on-line that Washington is keeping Blakely busy in the new year with another Blakely reversal: State v. Smith, 2005 Wash. App. LEXIS 16 (Wash. App. Jan. 4, 2005). (Other 2005 Washington rulings are detailed here.) Smith is notable because it generates a dissent over Blakely's applicability in a sex offender case involving a unique provision of Washington's sentencing law.January 6, 2005 at 01:29 AM

More Blakely state reportsWith many thanks to the many FOBs ("friends of blog") sending in reports, I can follow up this morning's state Blakely round-up with some additional interesting state reporting. The states of note this afternoon are Minnesota, Ohio and Washington.MINNESOTA: The news from comes in the form of two decisions from Minnesota Court of Appeals. In State v. Hagen, C0-02-1318 (Minn. App. Dec. 28, 2004), the court clarifies that an "upward durational departure under the Minnesota Sentencing Guidelines may not be based on an "admission" by the defendant, under Blakely v. Washington, 124 S. Ct. 2531 (2004), unless the "admission" to an aggravating factor is accompanied by the defendant's waiver of his or her right to a jury trial on the aggravating factor." In State v. Brooks, A03-2050 (Minn. App. Dec. 28, 2004), the court concluded that Blakely did "does not require that a jury find, or a defendant admit, the existence of a custody status point" because (according to the court) assignment of those points are like a prior conviction. OHIO: The report here is a third-hand account from an Ohio lawyer "that Ohio Supreme Court Chief Justice Moyer, at a training for new judges, said that the Ohio Supreme Court was taking Blakely 'VERY seriously.'" This is great news because, as noted in a number of previous posts (examples here and here and here and here), the story of Blakely in Ohio is very serious.WASHINGTON: The report from Blakely's home state is that a group a committee of prosecutors and criminal defense lawyers have a proposal in the works for the Washington legislature when it reconvenes next month which would involve the "Blakely-ization" of Washington's guideline scheme by providing for aggravating facts, other than the fact of a prior conviction, to be placed before the jury.December 28, 2004 at 06:42 PM

A peculiar (but important) Blakely ruling in OhioThe Ohio Supreme Court truly had an eventful first day of December. As detailed here, the court was forced to reverse a death sentence imposed on a defendant who gruesomely murdered two

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Ohio college students for lack of jurisdiction. In addition, the court rendered a quirky, and yet perhaps quite important, Blakely-related ruling in State ex rel. Mason v. Griffin, __ Ohio St.3d __, 2004-Ohio-6384 (Dec. 1, 2004) (available here).Mason did not directly address Blakely's applicability to Ohio's sentencing scheme (which is, as detailed here and here and here, an issue of much controversy). Rather, the case considered whether a Judge Burt Griffin (who happens to be one of the prime authors of Ohio's sentencing laws) had authority to convene a sentencing jury to make findings that might be required in Blakely. The Ohio Supreme Court, noting a lack of statutory authority, ruled that a court lacked this authority. As it explained:

Neither the Ohio Constitution nor any statute authorizes Judge Griffin to conduct a jury-sentencing hearing.... No statute authorizes Judge Griffin to convene a jury to make findings concerning sentencing in the underlying criminal cases. In fact, the sentencing statutes pertinent to Moore’s criminal cases vest the exclusive responsibility to make these determinations in the court and not in a jury....[I]nsofar as Judge Griffin determined that Blakely might render these statutes unconstitutional, he should apply the pertinent sentencing statutes without any enhancement provisions found to be unconstitutional by him. Instead, he ordered a hybrid procedure — a jury-sentencing hearing to make certain findings upon which he would base his sentencing decision — that is not sanctioned by any current or former version of a statute. That is, Judge Griffin had two choices: (1) apply the statutes as if Blakely did not render them unconstitutional and conduct a sentencing hearing without a jury or (2) find the statutes unconstitutional under Blakely and refuse to impose those enhancement provisions he deemed unconstitutional. By choosing neither, he proceeded in a manner in which he patently and unambiguously lacked jurisdiction to act.

December 1, 2004 at 11:54 PM

More Blakely developments in OhioI have previously highlighted that Ohio sentencing laws and practices make the state a real Blakely bellwether because the impact of Blakely's formal rule on Ohio's functional sentencing laws could be extreme or extremely minor (background here and here). I have been following the Ohio Blakely story closely (more details here), and there have been a set of recent state intermediate court rulings that continue this interesting state Blakely tale.Helpfully, a terrific criminal appellate attorney sent me today (and allowed me to share) a helpful round-up of recent Ohio decisions. Here is his appellate district-by-district update of the state of Blakely in Ohio:Fourth District The Fourth District decided to stick by State v. Scheer, 4th Dist. No. 03CA21, 2004-Ohio-4792 [rejecting a Blakely claim], in State v. Wheeler, 4th Dist. No. 04CA1, 2004-Ohio-____. The opinion is not yet online, but should be within a week. I think the court is clear that it does not want to revisit Scheer until the Ohio Supreme Court has ruled. That means don't waste your time trying to persuade that court to change its mind. Preserve Blakely, and then concentrate on issues that might persuade the court to reverse on other grounds.

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Unfortunately, the Fourth District decided the Blakely issue even though it reversed because of a Comer error [based on a failure to articulate adequately sentencing rulings]. This means Mr. Wheeler has to appeal to the Ohio Supreme Court to preserve his Blakely issue. Fortunately for Mr. Wheeler's issues, but unfortunately for Mr. Wheeler, he has a long West Virginia sentence to serve before his Ohio term starts. So there is time to take this to the Ohio Supreme Court. The time factor leads to a strategy point. It's worth thinking about not raising Blakely if there is another strong sentencing issue. Raising Blakely risks getting an adverse Blakely decision, like Wheeler. That could mean a year or more delay in resentencing. But if you ignore Blakely and win on another issue, you can almost certainly raise Blakely for the first time in the trial court. But a lawyer would need to be extremely confident of a victory on the non-Blakely issue to try this all-eggs-in-one-basket strategy. There may also be ethical issues about dropping a valid claim without a client's consent. Fifth District Over a dissent, the Fifth District said Blakely does not apply to Ohio. State v. Hughett, 5th Dist. No. 04CAA06051, 2004-Ohio-6207. Sixth District The Sixth District refused to consider Blakely because the defendant raised the issue in his reply brief. State v. Warden, 6th Dist No. WD-03-065, 2004-Ohio-6306. The court said the defendant should have asked for leave to amend his brief.Eighth DistrictThe Eighth District is all over the map depending on what panel you get. Eleventh DistrictThe Eleventh District correctly declined to address Blakely when it reversed the sentence on other grounds. State v. Sprowls, 11th Dist. No. 2003-L-056, 2004-Ohio-6328.November 30, 2004 at 02:03 PM

So many more state Blakely rulingsThe noteworthy Blakely rulings from state courts continue to come in at a fast and furious pace (see here for more recent evidence). Already this week alone, we have more consequential rulings from Indiana, Ohio, New Jersey and Washington (and, of course, the obligatory weekly collection from California). Also, just on line is an important Delaware ruling from last week. Though all of these decisions deserve fuller discussion, today the best I can reasonably do is provide summary highlights. I encourage readers to use the comments to note any exceptional features of these cases that merit spotlighting:

In Benge v. State, 2004 Del. LEXIS 506 (Del. Nov. 12, 2004), the Delaware Supreme Court declared "Blakely does not impact Delaware's sentencing scheme because the SENTAC guidelines are voluntary and non-binding."

In Lampitok v. State, 2004 WL 2590817 (Ind. App. Nov. 16, 2004), the court drops a footnote to give the "prior conviction" exception a broad application (INCourts provides more details here);

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In State v. Berry, 2004 WL 2580555, 2004-Ohio-6027 (Ohio App. 12 Dist. Nov. 15, 2004), the court articulates two bases on which the court claims Ohio's sentencing system completely escapes the application of Blakely;

In State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004), the court concluded New Jersey's presumptive sentencing scheme is generally impacted by Blakely (and, again, INCourts covers the highlights here);

In State v. Alkire, 2004 WL 2580772 (Wash. App. Div. 1, Nov 15, 2004), the court upholds a sentence based on the "prior conviction" exception (and does despite the fact the defendant's "invites this court to abandon the 'crumbling foundation' of Almendarez-Torres and the prior conviction exception").

And, for continuing coverage of the continuing stream of California cases, remember that the First District Appellate Project is here keeping up with recent major rulings, and Jonathan Soglin here notes a California published opinion that apparently breaks a little new ground.November 18, 2004 at 09:25 AM

The intricacies of Blakely in OhioOnce again, I feel I learned more than I taught when participating in a session on Blakely this morning. Though I thought I was to share the Blakely podium with Judge Burt Griffin, his trial schedule kept him from being able to attend the event hosted by Ohio Association of Criminal Defense Lawyers. But that loss became a gain when I had a chance to meet and hear from Cuyahoga County Assistant Public Defender John T. Martin. After I provided general background on Blakely, John gave a thorough and thoughtful (defense-oriented) account of all the potential Blakely issues/problems under Ohio's intricate (and very judge-centric) sentencing laws. Though I have been following the Ohio Blakely story closely (as detailed here and here and here), John's very effective presentation highlighted for me just how many challenging and uncertain Blakely legal issues will need to be resolved in Ohio. And the thoughtful questions from the audience also highlighted how may challenging and uncertain Blakely strategy issues defense counsel now face representing individual clients at a time of so much legal uncertainty.October 29, 2004 at 02:27 PM

Coming insights from the OACDLI am off (and off-line) this morning to talk to the Ohio Association of Criminal Defense Lawyers about Blakely. I am not only looking forward to hearing this group's perspective on Blakely happenings, but also eager to hear from Judge Burt Griffin who will be speaking specifically about Blakely in Ohio. As noted before and detailed here, Judge Griffin played a central role in Ohio's development of a distinct form of structured sentencing —a form which might escape or be decimated by the Blakely earthquake.October 29, 2004 at 09:19 AM

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The state of state sentencing in OhioI have previously called Ohio a Blakely bellwether — or maybe I should call it a Blakely swing state — because the impact of Blakely's formal rule on Ohio's functional sentencing laws could be extreme or extremely minor (background here and here). To its great credit, members of the Ohio Criminal Sentencing Commission earlier this month put together a number of helpful documents about Blakely in Ohio, including an overview of Blakely cases in Ohio Courts and memos here and here on Blakely's possible impact on Ohio law. Though the passage of a few weeks already makes these documents a bit dated (more recent developments are noted here), collectively these materials provide a valuable overview of Blakely developments in Ohio.And for folks interested in broader sentencing reform stories, there is a lot more to learn from Ohio's development of its modern sentencing structure. The full Ohio story is well told by Ohio Judge Burt W. Griffin and Professor Lewis Katz in Sentencing Consistency: Basic Principles Instead of Numerical Grids: The Ohio Plan, 53 Case W. Res. L. Rev. 1 (2002). And, by way of the kind Professor Jerry Israel, I have here to be downloaded a short description of "the Ohio Plan" authored by Judge Griffin. Professor Israel astutely says "I suspect that the Ohio approach, if it gains the attention it deserves, will receive widespread support among judges."Download summary_of_ohio_sentencing_system.rtfOctober 25, 2004 at 05:48 PM

More Ohio Blakely reversalsA set of cases last week revealed again that Ohio is a state worth watching for interesting and diverse Blakely rulings (for prior evidence, see discussion of Ohio developments here and here and here). In State v. Moore, 2004 WL 2252044 (Ohio App. 8 Dist. Oct. 07, 2004), State v. Washatka, 2004 WL 2252048 (Ohio App. 8 Dist. Oct. 07, 2004), and State v. Mason, 2004 WL 2252051 (Ohio App. 8 Dist. Oct 07, 2004), the Court of Appeals of Ohio for the Eighth District identifies Blakely problems in a variety of legal and factual settings and responds by vacating defendants' sentences and ordering resentencings.October 11, 2004 at 02:36 AM

Still more interesting state decisionsThough the federal courts have, perhaps quite justifiably, issued relatively few Blakely decisions as the Booker and Fanfan arguments approach, the state courts have to keep sorting out Blakely without any reassurance that helpful guidance will be coming from the Supreme Court anytime soon. (Indeed, as I suggested here, the rulings in Booker and Fanfan could actually make life harder, not easier, for the states). And the state courts continue to issue interesting Blakely decisions. For example, in State v. Fell, 2004 Ariz. App. LEXIS 137 (Ariz. App. Sept. 23, 2004), the court considered whether a trial court could impose a natural life prison term on a first-degree murder

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charge without the state having to prove to a jury beyond a reasonable doubt the aggravating circumstances the state previously had alleged when seeking the death penalty. The court ultimately concluded that Blakely did not require "a jury to find beyond a reasonable doubt that certain aggravating circumstances exist before a trial judge in Arizona may sentence a defendant convicted of first-degree murder to a natural life prison term rather than life with the possibility of parole."In Commonwealth v. Junta, 2004 Mass. App. LEXIS 1080 (Mass. App. Sept. 23, 2004), the court dropped a footnote to explain: "The recent United States Supreme Court decision in Blakely has no application here, as the Massachusetts sentencing scheme provides for indeterminate sentences."Meanwhile, in Blakely bellweather Ohio, the court in State v. Eckstein, 2004 Ohio App. LEXIS 4594 (Ohio App. 1st Dist. Sept. 24, 2004), the court avoids Blakely by asserting that statutory "findings that must be specified prior to a departure from the minimum prison term are discretionary factors to be used by the trial court in determining what sentence to impose within the authorized range."September 25, 2004 at 05:30 PM

Insights about Blakely’s impact in OhioAs noted here and here, Ohio appellate courts have expressed a variety of views about the meaning and application of Blakely in Ohio. Helpfully (or perhaps not too helpfully), attorneys with the Ohio Sentencing Commission have issued an entertaining and informative, but not in any way definitive, Blakely memo. The memo, which can be accessed here, effectively canvasses different ways in which Blakely might impact Ohio state sentencing law. But, as the introductory snippets below highlight, the memo hardly provides a conclusive assessment:

This memo discusses the Blakely case and two plausible — dramatically different — interpretations of how it might apply to judicial fact-finding under Ohio’s current criminal sentencing structure. On June 24, 2004, the United States Supreme Court released its decision in Blakely, sending shudders through many state houses and courts. The High Court held that facts considered by a judge in criminal sentencing — other than criminal history — must be authorized by the jury’s verdict. Scholarly observers asked, “What the heck does that mean?” How courts answer the question could mean that Ohio’s criminal sentencing structure is basically sound or that critical changes are needed....

Perhaps capturing a fairly universal view on Blakely, in the midst of the memo's analysis there is this astute comment: "If you are confused by Blakely and its competing interpretations, you’re human."September 22, 2004 at 11:45 AM

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Ohio v. Scheer: a Rosetta Stone for sentencing reform?I have previously discussed at length the fascinating challenges of figuring out what Blakely's formal rule might mean for Ohio's functional sentencing laws (see posts here and here and here ). Yesterday, I found an intermediate Ohio appellate court decision, Ohio v. Scheer, 2004 WL 2008628 (Ohio App. 4 Dist. Sept. 1, 2004), which is fascinating for both Blakely and non-Blakely reasons. (Strangely, the decision is dated September 1, but only first appeared on-line yesterday.)Though a fairly run-of-the-mill case, I think Scheer could be seen as a Rosetta Stone of sentencing reform. So many insights might be drawn from the case’s facts and the court’s ruling, careful study of the decision could, like the famed stone of Rosetta which helped scholars better

understand the meaning of Egyptian hieroglyphics (background here and here), help scholars better understand the dynamics and challenges of modern sentencing reform. Let me try to explain. Scheer involved appeal of a “sentence to the maximum, consecutive term of twelve months imprisonment for each of two counts of passing bad checks.” Those familiar with Ohio law already can see how the case raises at least two Blakely issues, since a sentencing judge in Ohio must make certina findings before

imposing a maximum term and also before imposing consecutive sentences. Adding to the intrigue, Scheer’s two convictions followed a plea bargain in which “the Statedismissed the remaining two counts of the indictment [which alleged more serious felonies] and agreed to recommend a sentence of community control sanctions if Scheer made full restitution to the victim in the amount of $89,698.81 prior to the sentencing hearing.” If Scheer did not make restitution prior to sentencing, the State recommended six months on each count and a court order of restitution. The case thus also raises interesting questions about the impact of prosecutorial discretion and the use of alternatives to incarceration.The story of Scheer goes on “Scheer failed to appear at the original sentencing hearing, and was subsequently arrested on a warrant issued by the court. At the time of the sentencing hearing, Scheer had not made restitution.” The court then – after making lengthy on-the-record statements referencing the seriousness of the dismissed counts, that the “Defendant has a lengthy and extensive criminal history … and shows no genuine remorse concerning his actions herein,” that the “victim in this case has suffered substantial economic harm,” and the “purposes and principles under 2929.11 of the Ohio Revised Code,” – concluded that Scheer “is not amenable to available community control sanctions.” Based on all these considerations, the trial court thus “sentenced Sheer to twelve months incarceration on each count, the maximum sentence for a fifth degree felony, and ordered that the sentences run consecutively. The court also ordered Scheer to make full restitution to the victim.”

The defendant in Scheer objected to some of the sentencing court's findings regarding his criminal history and lack of remorse, and thus the case raises a range of consequential Blakely procedural issues. And, of course, the judge's sentencing decision implicates broader substantive questions about consideration of "dismissed" conduct, criminal history, victim harms, lack of remorse, and "purposes and principles."In an extremely thoughtful and yet still opaque ruling, the appeals court in Scheer rejects the defendant's Blakely claim, though without addressing every possible Blakely issue. The court also rejects the substance of the defendant's other legal and factual challenges to the sentencing

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court's decision. However the appeals court still reverses and remands Scheer's sentence with a ruling that raises questions about the importance of written sentencing findings and appellate review. According to the appeals court, the sentencing court's findings were not sufficiently linked to its final sentencing determination:

Although the court made the requisite findings, it did not state the rationale or reasons that support those findings for either the maximum or consecutive sentences. The court made certain factual findings when it determined that community control sanctions were inappropriate and imposed a prison sentence; however, the court never indicated that it was relying on some or all of these findings in imposing maximum or consecutive sentences.... While we recognize that it might seem we are elevating form over substance as the court's reasons for imposing the sentences might be gleaned from the transcript as a whole, the Supreme Court of Ohio has indicated that it will require strict compliance with the provisions of the sentencing statutes. Since the trial court did not specify which of its findings it relied upon in imposing maximum and consecutive sentences, we must reverse and remand this matter to the trial court for further action consistent with this opinion.

September 11, 2004 at 03:42 PM

Another interesting Ohio caseYesterday in State v. Richards, 2004 Ohio 4633, 2004 Ohio App. LEXIS 4204 (Ohio App. Sept. 2, 2004), Judge James Sweeney in a dissent continued to spotlight Blakely issues in the application of Ohio's state sentencing laws. Recall that, as detailed here, Judge Sweeney and his colleague Judge Michael Corrigan had an interesting debate over the applicability and reach of Blakely in Ohio last week in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004).In Richards Judge Sweeney was simply calling for the defendant's sentence to be remanded for consideration of Blakely issues, but the case is interesting and noteworthy because it involved the imposition of a three-year sentence when the offense of conviction provided a statutory range of between one and five years. But, as Judge Sweeney correctly notes, under Ohio's statutory sentencing laws "the court could only deviate from the minimum sentence by making judicial findings beyond those either determined by a jury or stipulated to by the defendant." Specifically, in this case, the trial court imposed a sentence of three years rather than one year based on a finding that the "the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public." Ohio Revised Code § 2929.14(B). I have discussed at length here how Ohio's laws governing the imposition of maximum sentences raise deep jurisprudential issues about the meaning and reach of Blakely. Judge Sweeney's dissenting opinion in Richards expressly highlights — and the majority's opinion in Richards implicitly rejects — that the same tough Blakely issues arise whenever an Ohio judge imposes a sentence above the statutory minimum.Though I do not think these issues have yet come before the Ohio Supreme Court, it is only a matter of time before Buckeye Justices will need to start grappling with Blakely's meaning for Buckeye justice.September 3, 2004 at 07:18 AM

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Formalism meets functionality: An Ohio case studyMany have previously noted the formalism in the Blakely/Apprendi rule, often while highlighting ways legislatures might evade the rule's strictures. (Consider this commentary on Blakely by Professor Sherry Colb and recall that Justice O'Connor's dissent in Apprendi stressed these concerns.) Though only time will tell if we will see legislative efforts to evade the Blakely rule, in the meantime Blakely's formalism will create a host of challenging questions (headaches?) for functional sentencing law. Indeed, as I reflect on modern sentencing reforms, I have come to think that Blakely is so consequential and also so confusing because functionality, not formalism, is the hallmark of many facets of guideline sentencing. For example, as noted in this US Sentencing Commission discussion paper, the controversial "relevant conduct" rules in the federal system were devised as a functional solution to the dilemmas of both real-offense and charge-offense sentencing. More broadly, judges have routinely been placed at the center of guideline sentencing systems because judges seem functionally well suited to make the many nuanced fact and value judgments that are implicated in sentencing decisions. But now, says the Blakely court, regardless of who might be the most functional fact-finder, the Sixth Amendment formally demands that any fact (other than a prior conviction) which can increase a defendant's effective maximum sentence must be found by a jury or admitted by the defendant.As I reviewed the very interesting Ohio opinions in State v. Taylor and State v. Quinones (details here), I came to appreciate how challenging it will be in Ohio to map Blakely's formalism on to Ohio's functional sentencing provisions. Ohio has an interesting structured sentencing system which avoids grids by establishing basic (and relatively broad) sentencing ranges for felonies of different degrees. Then, after setting forth these ranges, Ohio Revised Code § 2929.14 has these interesting (and functionally sensible) provisions:

(B) Except [under certain specified circumstances] the court shall impose the shortest prison term authorized for the offense ... unless (1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term [and/or] (2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others. (C) Except [under certain specified circumstances], the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense ... only upon offenders who committed the worst forms of the offense [or] upon offenders who pose the greatest likelihood of committing future crimes....

In other words, it seems that Ohio's sentencing laws require a judge to impose the statutory minimum sentence unless he or she makes certain findings under 2929.14(B), and a judge may not impose the statutory maximum sentence unless he or she makes additional findings under 2929.14(C). In addition to being impressed with the elegant good sense of this system, I am struck by how hard it is to understand exactly what Blakely means, or might mean, for these provisions.

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At first blush, because additional "findings" are required for imposing more than the minimum sentence and for imposing the maximum sentence, it would seem that Blakely is implicated every time an Ohio judge seeks to impose a sentence above the statutory minimum and/or the statutory maximum. This seems to be the instinct of the court in State v. Quinones, 2004 WL 1903250, 2004-Ohio-4485 (Ohio App. Aug. 26, 2004), which vacated and remanded an imposed maximum sentence for "resentencing in light of Blakely" after noting that a jury "did not make a finding that Quinones had committed the worst form of the offense or that he posed the greatest likelihood of recidivism, nor did he admit to either."However, the findings required by Ohio law under 2929.14(B) and (C) do not all look like classic "factual" findings. Deciding what sentence might "demean the seriousness of the offender's conduct" or what behavior consitutes the "worst form of the offense" seems like a value judgment more than a factual finding. (Or maybe this should be called a mixed question of sentencing fact and law.) Moreover, these judgments might be made solely, or at least largely, on the basis of facts found by the jury at trial or admitted by the defendant in a plea agreement. Thus, upon reflection I can see some merit in Judge Corrigan's suggestion in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004) (details here), that these provision of Ohio law might be able to skate around Blakely.Any additional thoughts from Ohioans out there (who I know are reading based on this lengthy and insightful comment)?August 28, 2004 at 10:00 PM

Blakely’s impact in OhioAs noted here, yesterday's Ohio appellate court ruling in State v. Taylor, 2004 WL 1900333, 2004-Ohio-4468 (Ohio App. Aug 26, 2004), is noteworthy and interesting for non-Blakely reasons. But it was the Blakely talk in the separate opinions of Judge James Sweeney and Judge Michael Corrigan that first caught my eye. Here are some highlights.Judge Sweeney begins his concurring opinion in Taylor by noting that he is writing separately "to explain my position as to the resolution of the fourth assignment of error," which raised Blakely issues. Then, after reviewing the Blakely case, he explains:

In this case, the court could only impose the maximum penalty by making specific judicial findings beyond those either determined by a jury or stipulated to by the defendant. [FN1] Ohio law simply does not allow the trial court to impose maximum sentences (or certain other aspects of sentencing) in its discretion. Maximum sentences, consecutive sentences, and certain other sentences are reserved for offenders under certain and statutorily specified circumstances. Accordingly, we are required to review sentences de novo and not under the abuse of discretion standard. Thus, the maximum sentence is not within the "statutory range" of sentences that a trial court may impose in its sole discretion. Consequently, I believe an argument can be made that Ohio's sentencing law, in some respects and applications, is susceptible to the same constitutional violations that the U.S. Supreme Court discussed in Blakely. FN1. The specific judicial findings being either that the offender committed the worst form of the offense or that he posed the greatest likelihood of committing future crimes.

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R.C. 2929.14(C). Although R.C. 2929.14(C) further allows for the imposition of maximum sentences "upon certain major drug offenders under division (D)(3) of this section, and upon certain repeat violent offenders in accordance with division (D)(2) of this section" that portion of the statute is not applicable in this case. I do not believe that Blakely affects the trial court's ability to consider other facts relative to sentencing, including the offender's age and criminal record among other factors contained in R.C. 2929.12. Nonetheless, the law does not allow the court to impose the maximum sentence based upon such facts in the absence of the findings required by R.C. 2929.14(C).

These statements alone make the Taylor decision quite interesing. But then Judge Michael Corrigan, concurring in judgment only in part and dissenting in part, gets his say. To begin, Judge Corrigan disputes the majority's (non-Blakely) holding, noted here, by asserting that the sentencing court properly "found that Taylor posed the greatest likelihood of reoffending, and it gave reasons in support of that finding based on Taylor's extensive criminal record, his age (22 years-old), and lack of remorse" justified a maximum sentence under Ohio law. He then turns to Blakely, explaining that though he is "loathe to make broad pronouncements about Blakely's applicability to the Ohio sentencing statutes, the concurring opinion demonstrates that the issue is now joined." Consequently, Judge Corrigan weighs in with these "initial thoughts":

For the most part, Blakely has no applicability to Ohio sentencing statutes. This is because Ohio uses definite sentencing within minimum and maximum ranges for particular classes of felonies as opposed to guidelines used in the state of Washington which set maximum ranges within particular types of offenses in a class of felonies. For example, in Ohio a first degree felony is punishable by three, four, five, six, seven, eight, nine or ten years in prison. Unlike Washington, Ohio's sentencing statutes do not prescribe a prison term based on a point system relating to the offender's conduct. The Ohio trial judge has the discretion to sentence anywhere within the range, subject to statutory findings for imposing the maximum sentence.... To the extent that Ohio uses sentence enhancements, I tend to believe Blakely is not a problem. Nearly all sentence enhancements used in Ohio are charged in the indictment; for example, gun specifications, repeat violent offender or major drug offender specifications. That being the case, the offender would either plead guilty to the specification or the jury would make a factual finding on the specification. And it bears noting that sexual predator issues do not involve "punishment" for purposes of double jeopardy, so hearings on the predator classification would not be an issue. Likewise, Blakely should not be an issue for consecutive sentencing. The federal courts have consistently held that the imposition of consecutive sentences does not raise issues under the Sixth Amendment as long as the individual sentence for each count does not exceed the maximum....As for the findings required to impose the maximum sentence in a given case, those findings do not entail additional fact-finding in the sense that would implicate Blakely.... A finding that the offender committed the worst form of the offense would be based purely on the facts adduced at trial or pleaded to in the indictment. Recidivism factors like prior offenses need not be established by the jury, as the Supreme Court has specifically stated that prior convictions are not subject to the jury trial rule (there being

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obvious Fifth Amendment problems with the use of prior convictions when the accused does not testify).Consequently, I believe the concurring opinion's statement that "the court could only impose the maximum sentence by making judicial findings beyond those either determined or stipulated to by the defendant" to be only partially correct. As Blakely makes clear, the sentencing court may still rule on those facts that are deemed important to the exercise of sentencing discretion. Sometimes, those facts do not present themselves until sentencing; for example, the vindictive offender who verbally or physically assaults the court during sentencing may show a lack of remorse or that he is a danger to the public. Those are factors that may be considered when imposing the maximum sentence, and they do not have to be determined by a jury. Other admitted factors, like an offender's age, may be stipulated.The offender's age, extensive criminal record and lack of remorse as shown in this case are demonstrable facts that the judge could validly consider without violating Blakely. I would therefore find that the court did not err by imposing the maximum sentence.

Whew... I sure am glad that Judge Corrigan is "loathe to make broad pronouncements about Blakely's applicability to the Ohio sentencing statutes" or else I might have run out of room on this blog for his "initial thoughts." I hope to post more about Blakely and my home state when I have time this weekend to fully process Judge Corrigan's interesting (and debatable) "initial thoughts" about Blakely's impact in Ohio. Also relevant to this discussion will be another decision from the same Ohio appellate court, State v. Quinones, 2004 WL 1903250, 2004-Ohio-4485 (Ohio App. Aug. 26, 2004) which was also handed down yesterday.

August 27, 2004 at 02:42 PM

Oregon

Interesting state Blakely reportsTwo interesting newspapers stories this morning on the Blakely beat:

This article from Oregon discusses the state's continuing efforts to deal with the fallout from Blakely. This article discusses the Oregon Supreme Court's ruling last week in Dilts (detailed here), and notes that lawyers now "disagree about what happens next in Oregon." The article also indicates that these matters are "under review by a task force appointed by Gov. Ted Kulongoski and headed by [state Attorney General] Myers and by a joint legislative committee."

This article from Missouri mixes Blakely with sports, as it reports that Leonard Little, a member of the St. Louis Rams, is invoking Blakely to try to get his pending felony drunken driving charge dismissed. As the article explains, Little's lawyers have argued in papers "filed with the Missouri

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Supreme Court that by Missouri law, a judge, not a jury, has decided that Little is a persistent offender, and the statute that makes his pending case a felony therefore fails to pass muster."I recall that this mysterious blogger encouraged me to watch a lot of football to take my mind of of Blakely and Booker/Fanfan. But apparently even football players have Blakely claims to make.UPDATE: And here's an article from Minnesota detailing that a former state judge is invoking Blakely in an effort to reduce his prison sentence for stealing money from a mentally disabled woman.December 21, 2004 at 09:56 AM

Oregon Supreme Court decides Dilts (and ducks issues)In the aftermath of rendering its opinion in Blakely, the Supreme Court also vacated a Oregon Supreme Court judgment involving Oregon's guideline system and remanded the case for further consideration in light of Blakely. The case, Oregon v. Dilts, No. 99CR-0172; CA A106034 (Or. Dec. 16, 2004), has now been decided by the Oregon Supreme Court.In Dilts, the Oregon Supreme Court findings Blakely problematic aspects of Oregon's sentencing system, but it expressly rejects the state's invitation to invalidate the entire Oregon sentencing guidelines and also ducks other "remedy" issues. Here are just a few highlights from Dilts:

[W]e hold in this case only that, under Blakely, the sentencing guidelines were applied unconstitutionally to defendant. We agree with the state that this decision will have a significant impact on criminal sentencing because Blakely also makes it clear that whenever a trial court, in the absence of an effective waiver, imposes a sentence that exceeds the presumptive sentence on the basis of aggravating facts found by the trial court rather than by a jury (other than the fact of a prior conviction), that sentence amounts to an unconstitutional application of the sentencing guidelines. However, the fact that the sentencing guidelines may be applied unconstitutionally, as they were in this case, does not mean that we must reject the sentencing guidelines themselves as unconstitutional. On the contrary, the Court in Blakely specifically stated that determinate sentencing schemes, like Oregon's sentencing guidelines, are permissible if they are implemented "in a way that respects the Sixth Amendment."...The state argues that, if this court concludes that defendant's sentence is invalid, then it should remand to allow a jury to consider aggravating factors that could support a sentence in excess of the presumptive sentence in the guidelines.... Defendant disagrees, however, with the state's position that, at this stage of the proceeding, it now could subject defendant to a separate sentencing trial on remand during which it would seek to prove to a jury the aggravating facts previously found by the trial court. Defendant asserts that the common law and various state and federal constitutional provisions require the state to allege in the indictment any facts that may enhance the defendant's sentence, or at least to notify the defendant before trial that those facts will be at issue. Defendant points out that the indictment here did not allege such facts and that the state did not notify defendant that such facts would be at issue before his guilty plea. In those circumstances, he argues, the state is precluded from seeking to present those facts to a sentencing jury now.

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We decline to answer the question that the state raises, because, at this point in the proceeding, it is not presented in a sufficiently concrete way. It is, at least, contingent on actions that the parties may or may not take on remand. The only concrete issue before us at this time is whether defendant's sentence, which we affirmed in Dilts I, is invalid in light of Blakely. We have held that it is. We also have rejected the state's argument that we nevertheless should affirm defendant's sentence by severing the "mandatory" sentence provision of the guidelines and applying the guidelines to defendant, as so modified....

The Oregon Supreme Court does additional "issue ducking" in footnote five of the opinion, which also highlights how the states are waiting for some additional guidance from the US Supreme Court:

The state makes several other arguments regarding how this court should or should not apply Blakely in other contexts. Here, we reach only the arguments necessary to the disposition of this case in this court. We recognize the many unsettled questions regarding the application of Blakely and Apprendi to different aspects of Oregon's sentencing scheme. We think that those questions are better answered in the context of specific cases in which they are raised and briefed. Moreover, we are aware that we may be shooting at a moving target. In response to Blakely, prosecutors, the criminal defense bar, and members of the legislature in many states, including Oregon, may be reviewing sentencing procedures for possible modification. Additionally, the United States Supreme Court has granted petitions for certiorari in two cases that raise Blakely-related issues, [citing Booker and Fanfan]. In deciding those cases, the Court may provide further guidance regarding the scope of the jury trial right as it applies to criminal sentencing.

December 17, 2004 at 04:27 PM

Thoughtful coverage of major sentencing issuesI have praised the press's recent potent coverage of a range of sentencing law and policy issues (some examples here and here and here), and this morning there are more fine articles on all the most important sentencing issues of the day:

This article from the St. Cloud Times provides a complete and insightful review of the impact of Blakely on Minnesota state sentencing. (Other weekend articles on Blakely's impact in other states are here.) The article includes the important news that the "fear of numerous two-part trials hasn't materialized" after Blakely apparently because many courts are using "special verdict forms that ask jurors whether they believe the aggravating factors exist" at the main trial of guilt.

This article in the Milwaukee Journal Sentinel, written by state Judge Michael Brennan, serves as a fitting follow-up to the paper's terrific series of sentencing articles entitled "Locked In: The Price Of Truth In Sentencing" (detailed here and here and here). Judge Brennan in his article reviews, with many national insights, the state of sentencing in Wisconsin.

This article in The Oregonian thoroughly reviews a challenge to the state's death penalty laws which could "threaten the death sentences of all 29 men on Oregon's Death Row." The article provides even more fuel for my recent speculation here that the punishment of death may itself be dying a slow death.December 12, 2004 at 09:04 AM

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An Oregon Blakely trifecta With thanks to many for spotlighting these rulings for me, Oregon's intermediate court at least made sure that there would be judicial Blakely news of note today by rendering three noteworthy Blakely opinions: Oregon v. Perez, No. 0201-30132; A119741(Or. Ct. App. Dec. 8, 2004); Oregon v. Gornick, No.

02C53376; A121042 (Or. Ct. App. Dec. 8, 2004); Oregon v. Ross, 03CR0143; A121410 (Or. Ct. App. Dec. 8, 2004). There is a lot of "there there" in these opinions, all three of which were authored by Chief Judge David V. Brewer. Perez seems especially noteworthy for giving the "prior conviction exception" a narrow reading:

We conclude that the Supreme Court plainly meant what it said when it described the holding in Almendarez-Torres as "a narrow exception to the general rule" and stated that, other than "the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 US at 490 (emphasis added). It is therefore beyond reasonable dispute that the exception applies only to the fact of a prior conviction.

December 8, 2004 at 03:55 PM

Still more state Blakely rulings of noteWith Booker and Fanfan apparently still weeks away, we fortunately have more than enough significant state developments to keep Blakely fans busy. Last week, for example, major Blakely decisions came from intermediate appellate courts in Arizona, Indiana, Oregon, and Tennesse (and, of course, California also contributed yet another dozen or so appellate court rulings involving Blakely issues).Because I am busy trying to write my testimony for the US Sentencing Commission's hearings this week, I can only provided a cursory overview of these state developments:

In Arizona v. Resendis-Felix, 2004 Ariz. App. LEXIS 165 (Ariz. Ct. App. Nov. 10, 2004), the court reverses and remands on Blakely grounds, and there is a very interesting dispute between the majority opinion and a concurrence concerning the nature and review of a Blakely error.

In Traylor v. State, 2004 Ind. App. LEXIS 2229 (Ind. Ct. App. Nov. 10, 2004), the court reverses an aggravated sentence on Blakely grounds; the highlights are here courtesy of INCourts.

In State v. Fuerte-Coria, 2004 Ore. App. LEXIS 1462 (Ore. Ct. App. Nov. 10, 2004), the court refuses to find (an unpreserved) Blakely error because it is not clear Blakely extends to the imposition of consecutive sentences on the basis of judicial findings.

In State v. Pierce, 2004 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Nov. 2004), the court reduced one part of the defendant's sentence on Blakely grounds, but upheld the imposition of consecutive sentences over a Blakely objection.

November 14, 2004 at 10:11 PM- 114 -

Oregon gives Blakely broad readingAs I have detailed here, I see an essential offense/offender distinction at the heart of the jury trial right. And earlier this week, a New Jersey appellate court in NJ v. Abdullah, 2004 WL 2281236 (N.J. Super. A.D. Oct. 12, 2004), relied on an offense/offender distinction to limit the reach of Blakely (details here). But this idea has not carried the day on the other side of the country: an Oregon appellate court has now turned back a similar argument in State v. Warren, 2004 Ore. App. LEXIS 1305 (Or. App. Oct. 13, 2004), when considering Blakely's applicability to the state's dangerous offender sentencing scheme. Here is the Warren court's explanation of the offense/offender argument and the court's rejection of it:

[T]he state argues that, consistently with Apprendi, a fact that results in the enhancement of a defendant's sentence beyond the prescribed statutory maximum for a class of crime must be found by a jury only when that fact pertains to the manner of commission of the crime at issue, not when it "serves merely to characterize the defendant." The state reasons that, by recognizing an exception for facts relating to a defendant's prior convictions, the Apprendi Court implicitly recognized that other facts characterizing the defendant himself or herself, as opposed to facts pertaining to the commission of the crime at issue, also need not be found by a jury. According to the state, the Court's failure to mention any other types of facts that are not subject to a jury determination is of no significance because even the fact of a defendant's prior convictions was not at issue in Apprendi and the Court's mention of that type of fact was therefore mere dictum.... We disagree with the state's characterization of Apprendi. The Court made clear in that case that the relevant distinction relates, not to the type of fact at issue, but to the consequence of finding it, namely, whether or not such a finding results in a sentence beyond the prescribed statutory maximum for the offense found by the jury. The Court established as a matter of general principle that any fact that has the consequence of enhancing a prescribed statutory sentence constitutes, in effect, an element of an aggravated offense and therefore must be pleaded and proved. The Court then recognized an exception for one type of fact — a defendant's prior convictions — that may have that result. It explained, however, that such a fact need not be pleaded and proved only because it already has been subjected to a previous determination by a jury. In other words, the basis for the exception from the general rule is procedural, not substantive. Indeed, Blakely itself characterizes the principle regarding sentencing factors that the Court established in Apprendi as a "bright-line rule." Accordingly, the state's proposed substantive category of "facts characterizing the defendant" is irreconcilable with Apprendi.

October 15, 2004 at 02:51 AM

Juvenile convictions and the “prior conviction” exceptionThanks to a fast hotel connection (and funny travel sleep patterns), I am on-line and have time to post about an interesting recent Oregon state case, State v. Riley, 2004 WL 2108228 (Or. App.

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Sept. 22, 2004), which explores the scope of the Apprendi/Blakely "prior conviction" exception. In Riley, the specific issue concerned the use of "a juvenile adjudication in the calculation of [Riley's] criminal history score, resulting in a longer sentence than he would have received if the adjudication had not been used."I have noted before here and here that the scope and application of the "prior conviction" exception to the Apprendi/Blakely rule will need clarification before long. The Riley decision details that there is already a federal circuit split on the specific issue of whether a juvenile adjudication is "the functional equivalent of a 'prior conviction'" for purposes of Apprendi, and the Riley court actually uses the fact of this legal disagreement to conclude that "the trial court's use of defendant's juvenile adjudication in calculating his sentence was not obviously and indisputably error."The legal debate over juvenile adjudications within the "prior conviction" exception is fascinating for a number of reasons. First, of course, as noted here and here, the very exception itself is theoretically shaky. Second, because juveniles are not afforded the right to a jury trial, juvenile proceedings are not subject to procedures which may give adult prior convictions the added reliability justifying an exception to the Apprendi/Blakely rule. Third, the court split on this issue is not just between federal circuits, compare US v. Smalley, 294 F.3d 1030 (8th Cir. 2002), with US v. Tighe, 266 F.3d 1187 (9th Cir. 2001), but it also encompasses major state court rulings. See State v. Brown, 2004 WL 1490192 (La. July 06, 2004).September 24, 2004 at 02:24 AM

Major Blakely ruling in OregonI previously noted here a newspaper article in which a state defense lawyer called Blakely's implications for Oregon state sentencing "absolutely enormous." Showing yet again how insightful defense lawyers can be, today in State v. Sawatzky, No. 0003-32189 (Or. Ct. App. Sept. 8, 2004), an Oregon Court of Appeals concluded that under its state sentencing laws "upward departure sentences violate the Sixth Amendment to the United States Constitution under the rationale set forth in Blakely."Sawatzky is a great read in part because it provides a fine summary of Oregon's sentencing guidelines scheme and in part because it articulates the holding in Blakely in this interesting way:

Blakely makes it clear ... that Sixth Amendment analysis under Apprendi is not dependent on legislative intent. That is, the Court did not view as relevant that the Washington legislature, in enacting the sentencing guidelines, intended that courts rather than juries would act as finders of facts that justify "exceptional sentences," even though the Washington guidelines, like the Oregon guidelines, leave no doubt that that was the legislative intent. The Court, in fact, rejected the notion that legislative labeling of "elements" to be found by a jury and "sentencing factors" to be found by a judge could provide the necessary distinction required by the Sixth Amendment.... The Court has made clear in Blakely that a "statutory maximum" sentence for purposes of the Sixth Amendment is not something that, by mere legislative directive, can encompass a sentence enhancement that is based solely on judicial factfinding.

September 8, 2004 at 04:34 PM

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Dollars and SentencingMany readers likely know that the paths of federal and state sentencing reforms have diverged in part because of economics. Even though the federal corrections system is the biggest in the country, state expenditures on corrections consume a much bigger portion of states' overall budgets. Thus, as highlighted by this terrific report entitled "Changing Fortunes or Changing Attitudes?: Sentencing and Corrections Reforms in 2003" produced earlier this year by the folks at the Vera Institute's State Sentencing and Corrections Program, states struggling with the "third straight year of severe economic crisis" took a series of "steps to lessen sentences and otherwise modify sentencing and corrections policy during the 2003 legislative sessions." This recent article discussing a planned review of state sentencing laws and practices in Oregon highlights that, when it comes to sentencing reform, the almighty dollar might still be more powerful than the almighty Blakely. Though Oregon state sentencing laws apparently have big Blakely problems (details here), the article reveals that the public debate over Oregon sentencing reforms is about sentencing costs not sentencing procedures. Here's hoping that, on the playing field of sentencing, Oregon can get its ducks in a row.August 24, 2004 at 09:21 AM

Blakely news from OregonJust after complaining about slowed media coverage of Blakely earlier today, out comes this terrifically informative article in today's The Oregonian appropriately titled "Confusion reigns in federal, state courts."The article does not break a lot of new ground in covering the federal sentencing story — though it does note that some local federal prosecutors "are reindicting some defendants in cases in which they plan to ask for longer sentences" and "have asked for juries to be impaneled to decide the sentencing in three cases." Most eye-opening, however, are these passages covering what Blakely means for state sentencing in Oregon:

In state court, Salem defense lawyer Jesse Barton, who has written manuals about the state sentencing system, said the implications for Oregon are "absolutely enormous." He said Blakely particularly affects cases in which judges determine during sentencing that the facts in a case make a defendant a "dangerous offender" — a classification that comes with a longer sentence. It also could affect cases in which a person is convicted of multiple crimes and the judge, based on the facts in the case, hands down sentences that run consecutively instead of concurrently. Barton said he is already handling a half-dozen appeals for inmates convicted in state court. In those cases, judges added time to sentences based on the circumstances of their crimes. "There are hundreds of guys in prison right now doing unconstitutional sentences under Blakely — hundreds, maybe thousands," Barton said. Although Blakely is not likely to have a significant impact on the most serious crimes, such as the violent person-to-person offenses that fall under Measure 11, state prosecutors said it may impact the way serious property crimes are handled.

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August 17, 2004 at 01:29 PM

Pennsylvania

Three Strikes meets Blakely/ApprendiAs followers of the blog know from many prior posts (including here and here and here), today is a big day for the future of Three Strikes in California because of voter consideration of Proposition 66, which would narrow the reach of the most expansive and consequential Three Strikes law in the nation. Lots of interesting stories of criminal justice law and policy could be told depending upon the outcome of Proposition 66.And speaking of interesting, just appearing on Lexis is an interesting Ninth Circuit habeas ruling from last week which explores the possible intersection of Three Strikes and Blakely/Apprendi. In Stevenson v. Lewis, 2004 U.S. App. LEXIS 22511 (9th Cir. Oct. 28, 2004), the defendant claimed Apprendi was transgressed when the state sentencing court denied a motion to strike his prior convictions based on "consideration of facts not proven to a jury beyond a reasonable doubt, such as evidence suggesting that he possessed cocaine for sale and a gun." Though a clever argument, the Ninth Circuit detailed in Stevenson the reasons why it could not prevail under current law:

Apprendi, however, does not apply to the trial court's discretionary decision ... to strike a prior conviction.... Apprendi carved out a "narrow exception" for sentence enhancements based on "the fact of a prior conviction." The Almendarez-Torres exception was not altered by Blakely.... Because the sentence enhancement was based on Stevenson's four prior convictions, the calculation of his sentence falls within the Almendarez-Torres exception to Apprendi. Furthermore, because the trial judge's consideration of evidence not proved to the jury constituted a discretionary decision not to decrease Stevenson's sentence, Apprendi is inapposite. Finding a defendant to be outside the "spirit" of the Three Strikes law is a mitigating factor in sentencing, rather than a prerequisite to imposing an enhanced sentence. Thus, the trial judge's consideration of facts not proved to a jury did not offend Stevenson's constitutional rights under Apprendi, and habeas relief is unavailable. Accordingly, the district court did not err in dismissing Stevenson's Apprendi claim.

UPDATE: Proving how interestingly diverse these sentencing stories can be from state to state, I also just discovered on Lexis a ruling from Pennsylvania which suggests its Three Strikes law may have Blakely problems. In Commonwealth v. Guilford, 2004 Pa. Super. LEXIS 3920 (Pa. Super. Nov. 1, 2004), a Pennsylvania intermediate appellate court gives us this noteworthy dicta in a footnote:

We note that in light of the decision of the United States Supreme Court in Blakely v. Washington, 124 S. Ct. 2531 (2004), the provision of section 9714(a)(2) of the "three strikes" law, allowing imposition of a life sentence without parole where the sentencing court determines that "25 years of total confinement is insufficient to protect the public safety," is called into serious question.

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November 2, 2004 at 12:49 PM

Keys to avoiding Blakely in the Keystone stateRight after the Blakely ruling in June, members of the Pennsylvania sentencing commission explained why the decision "barely laid a glove on Pennsylvania's guidelines" (details here). A ruling yesterday from the Superior Court of Pennsylvania, the state's intermediate appellate court, seems to confirm this view. In Commonwealth v. Bromley, 2004 WL 2418029 (Pa. Super. Oct. 29, 2004), the court explains that "Pennsylvania employs an indeterminate sentencing scheme [and] there are significant differences between Washington's sentencing scheme and Pennsylvania's which bear upon the applicability of Blakely in the instant matter." The court goes on to explain why "in the Pennsylvania scheme, unlike the Washington scheme, there is no requirement that a sentencing court make a specific finding prior to sentencing in the aggravated range. The sole requirements are that the judge follow the general principles outlined [by statute] and provide reasons for the sentence which he or she imposes."The Bromley court thus holds that "Blakely does not implicate the Pennsylvania scheme, where there is no promise of a specific sentence, and a judge has the discretion to sentence in the aggravated range so long as he or she provides reasons for the sentence." And, applying its holding to the case at hand, the court explains:

In the instant matter, the sentencing court based its decision to sentence in the aggravated range on Appellant's lack of any work history other than criminal activity, his history of drug and alcohol abuse, the failure of previous rehabilitative efforts, and the need to protect the community. Thus, the sentencing court did not make any specific findings of fact about the underlying crime but rather exercised its discretion in the manner specifically approved in Apprendi, Ring, and Blakely.

October 30, 2004 at 11:18 AM

Blakely’s (lack of) impact in PennsylvaniaSylvester Stallone through the character Rocky Balboa taught us that Pennsylvanians know how to take a punch. Additional evidence can be found in this op-ed about the status of Pennsylvania's guidelines in the wake of Blakely. The piece is co-authored by Steven L. Chanenson, Villanova law professor, Federal Sentencing Reporter editor, and member of the Pennsylvania Commission on Sentencing, and State Rep. Frank Dermody, D-Oakmont and chairman of the Pennsylvania Commission on Sentencing. It explains:

[The] U.S. Supreme Court delivered a legal haymaker that has sent the criminal sentencing world reeling.... Various commentators have warned that the Blakely decision will call into question thousands of criminal sentences.... Although Blakely packs the punch of a heavyweight champ for the federal system and many state sentencing systems, it barely laid a glove on Pennsylvania's guidelines.... [Pennsylvania's] guidelines limit the judge's discretion only concerning the minimum sentence. Pennsylvania's guidelines say nothing about the maximum sentence, which can

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be as high as the statutory maximum. Pennsylvania judges, unlike federal judges, are not required to find facts in order to increase a defendant's maximum sentence. So the Pennsylvania system provides needed sentencing guidance while largely avoiding the problems the Supreme Court discussed....While the Supreme Court has left some criminal justice systems dazed and their sentencing guidelines in danger of collapse, the Pennsylvania guidelines remain standing.

June 30, 2004 at 10:47 AM

South Carolina

Another possible Blakely front and great dictaThough not formally a Blakely case, the South Carolina Supreme Court in a decision last week was apparently influenced by Blakely when considering an intricate issue of appellate procedure. In State v. Brown, 2004 WL 1948696 (S.C. Aug. 30, 2004), the Court was considering whether and when an appellate court, after reversing a conviction due to lack of evidence on one element of the offense, should be able to remand the case for entry of judgment and sentencing on a lesser included offense. The Brown court provides an extended and quite interesting discussion of the appropriateness of so-called "sentencing remands," and it notes along the way that "[n]umerous state and federal courts have approved of the practice of a sentencing remand in appropriate circumstances." The court in Brown ultimately concludes that when a conviction is reversed due to insufficient evidence, a court should consider remanding a case for sentencing on a lesser included offense only in very limited circumstances, and along the way the court cites Apprendi, Ring, and Blakely in support of its ruling. In so doing, the court drops this choice footnote:

We recognize the vigorous debate, as expressed in Apprendi, Ring, and Blakely, between those justices who believe our people's traditional belief in right of trial by jury is in perilous decline due to the accelerating propensity of both state and federal legislatures to adopt 'sentencing factors' determined by judges that increase the punishment beyond what is authorized by the jury's verdict, Ring, 536 U.S. at 611- 612 (Scalia, J., concurring), and those who believe Apprendi and its progeny portend disastrous practical consequences for state and federal sentencing guideline schemes developed during the past two decades through the collective experience and wisdom of the judicial, legislative, and executive branches of government. Blakely, 124 S.Ct. at 2543-2561 (O'Connor, Kennedy, and Breyer, JJ., dissenting separately). The present view of the majority of the Supreme Court regarding the crucial role of the jury in determining facts relating to elements of the crime and facts which may result in increased punishment, other than the fact of a prior conviction, undoubtedly lends support to our resolution of this case.

September 4, 2004 at 12:39 AM

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Tennessee

More holiday season state Blakely rulingsAs noted before, with all the major Blakely rulings early this month (some details here), I thought the holiday weeks might be quiet on the Blakely front. But, as detailed here and here, just the first few days last week brought more than a dozen state and federal appellate cases dealing with Blakely issues. In addition to the previously noted rulings here, a few more state Blakely decisions from last week recently came on-line with Patrick v. State, 2004 WL 2965848 (Ind. App. Dec. 23, 2004) (which is discussed at length here by Michael Ausbrook at INCourts) and also State v. Whatley, 2004 WL 2964710 (Tenn. Crim. App. Dec. 22, 2004). And today from the west coast today came State v. Clarke, 2004 WL 2980283 (Wash. App. Div. 1, Dec. 27, 2004) and People v. Brooks, 2004 WL 2980298 (Cal. App. 2 Dist., Dec. 27, 2004)December 27, 2004 at 10:31 PM

More interesting state appellate Blakely decisions The Blakely work being done in the state appellate courts continues to be quite important and intriguing. Indeed, recent posts here and here and here and here highlight the breath and scope of all the recent state Blakely rulings. And more notable decisions this week come from Indiana and Tennessee intermediate appellate courts.

From Indiana, we get Trusley v. State, 2004 WL 2676537 (Ind. Ct. App. Nov. 24, 2004), which reaches various important conclusions (both directly and indirectly) in the course of remanding for resentencing because the defendant's "sentence was enhanced because of aggravating factors other than criminal history, which aggravating factors were not found by a jury or admitted by [the defendant]." As he does so well, Michael Ausbrook at INCourts here discusses this Indiana ruling in detail.

From Tennessee, we get State v. Wallace, 2004 WL 2671619 (Tenn. Crim. App. Nov. 23, 2004), which addresses at length and thoughtfully whether Blakely applies to a judicial decision to impose consecutive sentences. The court initially notes that "it may be logically argued that a consecutive sentence is a greater punishment than a concurrent sentence. If so, Blakely may require a jury's finding of facts, other than prior convictions, as a state law predicate for the imposition of consecutive sentencing." But the court goes on to read the Blakely line of precedents to indicate "that the due process and jury trial guarantees have no application to a judge's consecutive sentencing determination." Consequently, the Wallace court holds "once convictions and the lengths of individual sentences are determined, the judge is the arbiter of whether the sentences shall run concurrently or consecutively."

November 26, 2004 at 11:01 AMStill more state Blakely rulings of noteWith Booker and Fanfan apparently still weeks away, we fortunately have more than enough significant state developments to keep Blakely fans busy. Last week, for example, major Blakely decisions came from intermediate appellate courts in Arizona, Indiana, Oregon, and Tennesse

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(and, of course, California also contributed yet another dozen or so appellate court rulings involving Blakely issues).Because I am busy trying to write my testimony for the US Sentencing Commission's hearings this week, I can only provided a cursory overview of these state developments:

In Arizona v. Resendis-Felix, 2004 Ariz. App. LEXIS 165 (Ariz. Ct. App. Nov. 10, 2004), the court reverses and remands on Blakely grounds, and there is a very interesting dispute between the majority opinion and a concurrence concerning the nature and review of a Blakely error.

In Traylor v. State, 2004 Ind. App. LEXIS 2229 (Ind. Ct. App. Nov. 10, 2004), the court reverses an aggravated sentence on Blakely grounds; the highlights are here courtesy of INCourts.

In State v. Fuerte-Coria, 2004 Ore. App. LEXIS 1462 (Ore. Ct. App. Nov. 10, 2004), the court refuses to find (an unpreserved) Blakely error because it is not clear Blakely extends to the imposition of consecutive sentences on the basis of judicial findings.

In State v. Pierce, 2004 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Nov. 2004), the court reduced one part of the defendant's sentence on Blakely grounds, but upheld the imposition of consecutive sentences over a Blakely objection.

November 14, 2004 at 10:11 PM

Covering Blakely in the statesAs suggested here, the number of state rulings on Blakely continues to grow. In just two days this week, there has already been nearly a dozen Blakely decisions, and the pace of the rulings now entails that I cannot hope to provide comprehensive coverage of all the state court action. (Amazingly, the First District Appellate Project seems to be keeping up with all the Blakely court action in California here.) I will try to continue to spotlight state cases of particular importance or interest, and I encourage readers to help me find this cases. I have recently found two such noteworthy state cases decided late last week: State ex rel. Smith v. Conn, 2004 Ariz. App. LEXIS 149 (Ariz. App. Oct. 14, 2004) and State v. White, 2004 Tenn. Crim. App. LEXIS 901 (Tenn. Crim. App. Oct. 15, 2004).In Conn, the state prevailed on a challenge to a trial court's order denying the state's motion to add an allegation of aggravating factors to the indictment and request for jury trial. The court explained:

We disagree with the trial court's conclusion that A.R.S. § 13-702(B) is invalid after Blakely. That A.R.S. § 13-702(B) requires a trial judge to find aggravating factors does not mean that, post-Blakely, juries cannot do so without a legislative change to the statute. There is nothing in the plain language of A.R.S. § 13-702(B) that prohibits a trial court from submitting aggravating factors to the jury. Moreover, nothing in A.R.S. § 13-702(B) prevents a jury from finding aggravating factors. Once a jury finds an aggravating factor, Blakely is satisfied, and A.R.S. § 13-702(B) allows a trial judge to impose an aggravated sentence after consideration of the factors enumerated in A.R.S. § 13-702.

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In White, the court addressed a range of Blakely issues under Tennessee law (which itself triggered a partial dissent). But most intriguing were these comments about Blakely and restitution:

Our final inquiry is whether any order of restitution in this case is subject to the dictates of the recent United States Supreme Court's decision in Blakely .... The Blakely Court did not speak in narrow terms that targeted merely the length of an accused's sentence; rather, the Court spoke in broader terms of the power to punish.... Existing Tennessee case law expressly recognizes, "The purpose of restitution is not only to compensate the victim but also to punish and rehabilitate the guilty." Restitution has also been described as "an important tool in the punishment of criminals. " More particularly, restitution has been regarded as "a part of the sentencing scheme and in the nature of a penalty for crime," which is not affected by the victim releasing the offender from civil liability.Tennessee's view of restitution ostensibly conflicts with the prevailing view in two federal circuits, ... but it is consistent with the approach taken in two other federal circuits.... Regardless whether restitution qualifies as punishment, however, we believe that a judicial finding of an amount of restitution does not run afoul of the Due Process or Sixth Amendment guarantees as interpreted in Blakely. Blakely and its progenitor, Apprendi v. New Jersey, 530 U.S. 466 (2000), specifically targeted increased penalties for crimes beyond the prescribed statutory maximum without submission to a jury or admission by a defendant. Neither Code section 40-20-116 nor section 40-35-304 embraces a "statutory maximum" that could be increased by a given finding; that is to say, neither statute specifies a maximum amount of restitution that may be ordered. Accordingly, nothing in Blakely appears to reach our restitution scheme or the particular restitution order entered in this case.

October 20, 2004 at 02:23 AM

Tennessee Blakely troubleI am heading home from California today and have been speculating about how many states with Blakely problems I will be flying over on the way back to Ohio. I know I won't be going over Tennessee, but the case of State v. Eddings, 2004 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. Oct. 8, 2004), confirms that it is a state struggling with Blakely issues.In Eddings, the court usefully explains in short form how Tennessee sentencing law works and why the case raises a Blakely problem:

In calculating the sentence for a Class B felony conviction, the presumptive sentence is the statutory minimum of eight years for a Range I offender if there are no enhancement or mitigating factors. See Tenn. Code Ann. § 40-35-210(c). If there are enhancement but no mitigative factors, the trial court may set the sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating factors requires an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35-

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210(e). The sentence must then be reduced within the range by any weight assigned to the mitigating factors present. Tenn. Code Ann. § 40-35-210(e). In the case under submission, in arriving at a mid-range sentence of ten years the trial court applied the following five enhancement factors and no mitigating factors:(6) the Defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense;(9) the Defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release into the community;(10) the Defendant possessed or employed a firearm during the commission of the offense;(11) the Defendant had no hesitation about committing a crime when the risk to human life was high; and(17) the crime was committed under circumstances under which the potential for bodily injury to a victim was great....None of the enhancement factors used by the trial court to enhance the Defendant's sentence were submitted to a jury or admitted by the Defendant. Therefore, the rule in Blakely precludes application of any of these factors. Because there are no enhancement factors that were proved to a jury beyond a reasonable doubt or admitted by the Defendant, the sentence must be modified to eight years, the presumptive minimum.

Interestingly, Judge David Hayes dissents in part, asserting that the Blakely issue was waived by the defendant, and that the standards for plain error review were not satisfied on the facts so as to still justify a reversal.UPDATE: Some additional major Tennessee Blakely case from last week are now also on-line. In State v. Benson, 2004 Tenn. Crim. App. LEXIS 868 (Tenn. Crim. App. Oct. 8, 2004), the court thoughtfully examines a range of Blakely issues and ultimately finds that though "the trial court improperly relied on certain enhancement factors in light of Blakely, we conclude that the record supports a sentence of twenty years." But in State v. Northcutt, 2004 Tenn. Crim. App. LEXIS 861 (Tenn. Crim. App. Oct. 7, 2004), the court reverses a sentence after finding that the "rule of law articulated by the United States Supreme Court in Blakely" precluded the application of various enhancement factors because they were not "submitted to a jury or admitted by the defendant."October 10, 2004 at 09:43 AM

Close enough for government workState appellate courts have, perhaps unsurprisingly, endeavored to minimize the impact of Blakely by finding clever ways to affirm previously-imposed sentences even when Blakely issues are implicated. Many of these affirmances are coming from California, though other states are following suit.For example, in People v. Vaughn, 2004 WL 2223299 (Cal. App. 2 Dist. Oct. 05, 2004), the court affirmed an enhanced sentence by concluding that the judicial findings to support the enhancement were "inherent in the jury's verdict, and required no separate findings by the trial court." Meanwhile, in People v. Washington, 2004 WL 2202033 (Cal. App. 2 Dist. Oct. 01, 2004), the court affirmed an enhanced sentence because "three of the five factors in aggravation

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found by the trial court are not affected by Blakely and support selection of the upper term [and] there is no reasonable possibility that upon remand the trial court would exercise its discretion other than to again select the upper term." Similarly, in People v. Sylve, 2004 WL 2189339 (Cal. App. 2 Dist. Sept. 30, 2004), the court concluded that even giving "defendant the benefit of the argument as to whether Blakely prohibits several of the factors, this leaves us with two legitimate aggravating factors and no mitigation [and thus the] trial court was justified in imposing the upper term on the burglary count."And, showing that such affirmances are not only a California phenomenon, in State v. Shaw, 2004 Tenn. Crim. App. LEXIS 826 (Tenn. App. Sept. 28, 2004), the court in a similar way concludes that Blakely problems are of no ultimate consequence:

In sum, we conclude that enhancement factors (2) and (10) were appropriately applied under Blakely, but that the trial court erred in applying enhancement factors (9) and (11). We further conclude that the strong weight to which the trial court assigned the applicable enhancement factors more than justifies the enhanced sentence imposed. Accordingly, we affirm the twenty-four-year sentence.

October 6, 2004 at 11:39 PM

Interesting state Blakely newsThough the federal sentencing story will take center stage later today when the respondents and amici file briefs in Booker and Fanfan, today's papers have more interesting news on Blakely in the states. From Maine, this article details that the Maine Supreme Court later this week will hear additional argument in two pending cases in order to examine the impact of Blakely.From Tennessee, this article reports on the interesting and challenging work of the Governor's Task Force (previously discussed here and here) which was assigned the task of devising an effective response to Blakely for Tennessee. In addition, this editorial urges a set of responses to Blakely for Tennessee and federal sentencing.September 21, 2004 at 07:37 AM

Big Blakely rulings from the statesFederal courts have been relatively quiet on the Blakely front this week (perhaps because, as suggested here, federal judges are so busy sorting through piles of clerkship applications). But the state courts have been keeping Blakely busy; at least three consequential ruling from courts in California, Minnesota and Tennessee appeared on-line today: From California, the court in People v. George, 2004 WL 2051167 (Cal. App. 4 Dist. Sept. 15, 2004), held that Blakely precluded the imposition of an upper term sentence, and rejected the government's claims that the defendant has waived the issue and that any Blakely error was harmless. Here's some key language:

[B]ecause Blakely was decided after George's sentencing, George cannot be said to have knowingly and intelligently waived his right to a jury trial....

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Under California's determinate sentencing law, where a penal statute provides for three possible prison terms for a particular offense, the court is required to impose the middle term unless it finds, by a preponderance of the evidence, that the circumstances in aggravation outweigh the circumstances in mitigation. The Attorney General argues that the imposition of an upper term sentence under the California determinate sentencing scheme is not the same as the imposition of a penalty beyond the standard range and thus does not implicate Blakely. The attempted distinction, however, is one without a difference. Although an upper term is a "statutory maximum" penalty in the sense that it is the highest sentence a court can impose for a particular crime, it is not necessarily the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," which is the relevant standard for purposes of applying Blakely....Here, the trial court relied on five aggravating factors as the basis for its decision to impose the upper term, to wit, that (1) the crime was serious and involved threats of great bodily injury to the victims; (2) the crime involved planning, sophistication and professionalism; (3) the current offense was more serious than the offense underlying George's prior conviction, which was itself serious; (4) at the time George committed the current offenses, he was on felony probation; and (5) George's prior performance on probation was poor.... [W]e conclude that the trial court was constitutionally entitled to rely only on the fact that George was on probation at the time of the charged offense as a basis for imposing an upper term sentence. Because this fact arises out of the fact of a prior conviction and is so essentially analogous to the fact of a prior conviction, we conclude that constitutional considerations do not require that matter to be tried to a jury and found beyond a reasonable doubt.... Thus, in accordance with the analysis of Blakely, the trial court was not required to afford George the right to a jury trial before relying on his status as a probationer at the time of the current offense as an aggravating factor supporting the imposition of the upper term.The Attorney General suggests that the propriety of this single factor as a basis for imposing an upper term sentence is sufficient to withstand George's constitutional challenge to the sentence.... [But] we cannot conclude that the elimination of four of the cited factors would not have made a difference in the court's sentencing decision here.... The matter is remanded for resentencing.

From Minnesota, the court in Minnesota v. Ingalls, 2004 WL 2050533 (Minn. App. Sept. 14, 2004), reserves the imposition of a "double-upward departure imposed by the district court." The court's ruling gets right to the point: "Like the sentencing departure in Blakely, the upward departure in this case is not based solely on facts reflected in a jury verdict or admitted by appellant; it is based on the district court's determination that aggravating factors were proved. Because the district court could not have considered whether basing appellant's sentence on these factors is permissible under Blakely, we remand for reconsideration of appellant's sentence in light of Blakely."From Tennessee, the court in State v. Syler, 2004 WL 2039809 (Tenn. Crim. App. Sept. 13, 2004), explains that, though Blakely was "not raised by either party, we are constrained to address the Defendant's sentence in light of Blakely." And the impact is consequential:

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The Blakely decision calls into question the validity of Tennessee's sentencing scheme, insofar as that scheme permits trial courts to increase a defendant's presumptive sentence based upon enhancement factors found by the trial judge.... The presumptive sentence for a standard offender convicted of a Class A felony is twenty years.... Here, the Defendant was sentenced to twenty-one years for each of his Class A felonies, one year above the presumptive sentence, based upon several enhancement and mitigating factors found by the trial court at the sentencing hearing.... The trial court enhanced the Defendant's sentences for the Class A felonies on the bases that the victim was "particularly vulnerable because of age or physical or mental disability," and the Defendant "abused a position of public or private trust." Tenn. Code Ann. § 40-35-114(5), (16). Neither of these enhancement factors is reflected in the jury's verdict, nor was either factor admitted by the Defendant. Pursuant to Blakely, the trial court's enhancement of the Defendant's sentences on these bases was therefore erroneous. See State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL 1607002, at *10 (Tenn.Crim.App., Knoxville, July 19, 2004) (holding that the rule in Blakely precludes application of enhancement factors (5) and (16) where they have not been submitted to the jury and have not been admitted by the defendant).Pursuant to Blakely, the Defendant's sentences for his Class A felonies should not have been increased above the statutory presumptive sentence based upon statutory enhancement factors (5) and (16). Accordingly, we reduce the Defendant's sentences for his two Class A felonies from twenty-one years to twenty years.

September 15, 2004 at 10:06 PM

Tennessee’s functionality meets Blakely’s formalismIn this post I focused on Ohio sentencing law to highlight that Blakely's formal rule is so consequential (and confusing) because functionality, not formalism, is the hallmark of many facets of sentencing reform. Another interesting example of these dynamics emerged from Tennessee this past week in State v. Bellamy, 2004 WL 1936384 (Tenn. Crim. App. Aug. 31, 2004), where the court was addressing the state's functional presumption for "alterntive sentencing" in its sentencing laws. The majority's opinion in Bellamy actually avoided discussing what Blakely might mean for the state presumption for an alterntive sentence, though it did helpfully explain this part of Tennessee sentencing law:

In regards to alternative sentencing, Tennessee Code Annotated section 40-35-102(5) provides as follows: "In recognition that state prison capacities and the funds to build and maintain them are limited, convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration." A defendant who does not fall within this class of offenders "and who is an especially mitigated offender or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the contrary." Id. § 40-35-102(6).

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Though the majority did not speak at all to how Blakely might impact the application of this provision by sentencing judges, Judge James Curtwood Witt concurring did so in this thoughtful way:

In my view, we must recognize the possibility that Blakely v. Washington, hampers a trial judge's authority to make the fact findings necessary to overcome the statutory presumption of favorable candidacy for alternative sentencing.... The defendant in the present case enjoyed the presumption of Code section 40-35-102(6), and it behooved the trial court, in imposing a sentence of confinement, to offset the presumption by finding any, or any combination, of the factual premises listed in section 40-35-103(1), such as, the need to protect society from an offender with a long history of criminal conduct or the ineffectiveness of prior non-confinement measures. See id. § 40-35- 103(1)(A)(C) (2003). That factual determination is in addition to the facts explicitly or implicitly established by the defendant's guilty plea.... [T]he High Court in Blakely did not speak in narrow terms that targeted merely the length of an accused's sentence; rather, it spoke in broad terms of the state's power to punish: "When 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." Id. (quoting 1 J. Bishop, Criminal Procedure, § 87, p. 55 (2d ed. 1872) (emphasis added). Thus, Blakely seems to have impact on Tennessee's scheme of presuming favorable candidacy for alternative sentencing because whether to confine or not confine is, in a general sense, an issue of punishment....That said, we know that the Sixth Amendment's prohibition of increasing punishment beyond the "statutory maximum" based upon an additional judge-made finding does not apply to "the fact of a prior conviction." In the present case, the defendant's record of prior convictions is substantial. Although the pertinent factual premise for overcoming the presumption of favorable candidacy for alternative sentencing addresses prior "history of criminal conduct," a standard that does not necessarily limit consideration to conduct that resulted in convictions, the defendant does have an extensive record of prior convictions. For that reason, I believe that the trial judge could have properly based his confinement order on the record of prior convictions, and even if Blakely does apply to Code section 40-35-102(6)'s presumption, the court's use of sentencing factors other than prior criminal convictions would be harmless beyond a reasonable doubt.

September 4, 2004 at 01:14 PM

Blakely back in the newsThe coming week should have plenty of Blakely news with the Solicitor General's office and the US Sentencing Commission both due to submit briefs in the Booker and Fanfan cases on Wednesday. In the meantime, the newspapers are again finding other noteworthy Blakely stories.From Tennessee articles here and here report on the recommendation made by the Task Force appointed by Governor Phil Bredesen that a special session of the Tennessee General Assembly is not needed to deal with Blakely. Background on the Tennessee Task Force can be found here and here, and this recent news article thoughtfully explains why the "Task force on sentencing

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has its work cut out for it." This article also details the variations in Tennessee sentencing practices in the wake of Blakely:

[Cleveland attorney James F.] Logan said some judges are ignoring Blakely. Others, he said, insist it mandates only minimum sentences, ignoring even prior convictions that the nation's high court clearly said could be used to boost sentences. At least two judges are now holding separate sentencing hearings, allowing juries to decide which factors a judge can use, if any, to ratchet up a criminal's sentence. They are doing so even though there is no law on the books that allows that process, known as a bifurcated hearing, in any case other than those in which the death penalty or life without parole is sought as punishment.

In other state news, this article discusses a peculiar ruling from a Michigan state judge who apparently declared Michigan's state sentencing guidelines unconstitutional in order to be able to sentence a child molester to a much longer prison sentence than the guidelines provided. From the federal desk come two Blakely stories out of the Eighth Circuit. This article discusses a factually and legally interesting case involving a former Kansas City pharmacist who received a 30-year prison term for diluting chemotherapy drugs. And this article discusses a North Dakota perjury case in which all parties agreed to put sentencing on hold until November 10 with the hope that federal sentencing law will be clearer at that time.August 28, 2004 at 09:20 AM

Grand Ole BlakelyAs noted previously here and here, the state so rightfully proud of its Grand Ole Opry should also be proud of its work to date on Blakely. And today I was pointed to this link, where Tennessee's Attorney General provides a very thoughtful — though perhaps a bit biased — set of opinions concerning the "Impact of Blakely v. Washington on Tennessee’s Sentencing Scheme."The analysis section of this official AG Opinion (No. 04-131 and dated August 13, 2004) contains many insights about the possible reach of Blakely and the structure of Tennessee's sentencing laws. Though there are too many highlights to summarize, here's how the Opinion starts:

QUESTIONIn light of Blakely v. Washington, does Tennessee’s sentencing scheme, Tenn. Code Ann. § 40-35-101, et seq., violate a defendant’s Sixth Amendment right to trial by jury as applied to the States via the Due Process Clause of the Fourteenth Amendment? OPINIONYes, in part. Those portions of Tenn. Code Ann. §40-35-101, et seq., that allow a trial court to enhance a defendant’s sentence above the presumptive minimum through application of enhancement factors — other than the fact of a prior conviction or any factor admitted by the defendant — are constitutionally invalid. However, as more fully explained below, significant features of Tennessee’s sentencing scheme remain unaffected by Blakely.

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August 18, 2004 at 11:04 AM

I’m going to Graceland…Proving that Tennessee deserves the nickname "The Volunteer State," a friend from Tennessee was kind enough to volunteer some helpful information concerning that state's reaction to Blakely. As noted before, Tennessee's Governor has already created a Task Force on the Use of Enhancement Factors in Criminal Sentencing (background here), and I was pleased to learn that the Task Force seems to have a balanced membership, including many judges, prosecutors and defense attorneys (and three very well-regarded law professors as ex officio members). It also seems the Task Force has set a robust schedule and plans to have a report or a proposal before the end of this year.The history of sentencing reform is Tennessee is quite dynamic, and the pre-Blakely story is well-told here. In 1985, the legislature created the Tennessee Sentencing Commission which helped produce the Tennessee Sentencing Reform Act. That Act became effective on November 1, 1989 and still governs Tennessee sentencing. But the Tennessee Sentencing Commission is no longer with us: the state's legislature abolished the Commission in 1995. And yet, Judge Barbara Haynes, who once served Chair of the Tennessee Sentencing Commission, is now serving a Chair of the Governor's Task Force and apparently others involve with the Task Force formerly were involved with the Tennessee Sentencing Commission.Even before the Task Force gets started in earnest, official and unofficial voices are sharing wisdom about what Blakely means for Tennessee sentencing. Specifically, the Office of the Tennessee Attorney General has issued a fascinating four-page memorandum presenting "initial impressions ... as to Blakely's effects on Tennessee's statutory sentencing scheme." The memo speaks to a number of universally important topics, such as authority for utilizing sentencing juries, the impact of Blakely on consecutive sentencing, and retroactivity. Covering similar ground in a fuller way from a different perspective, attorney David L. Raybin has completed an article to be published the August 2004 issue of the Tennessee Bar Journal entitled "What is the Impact of Blakely v. Washington on Sentencing in Tennessee." I am pleased to be able to provide access to both these documents here: Download tenn_ag_advice_to_das_7.8.08.pdfDownload what_is_the_impact_of_blakely_v. Washington on Sentencing in Tennessee.pdfNow I wonder what Elvis (or even Paul Simon) would think about Blakely?July 31, 2004 at 10:05 PM

Fascinating news from TennesseeApparently I was on to something when I said earlier that today was going be a big day for Blakely in the states. In addition to all the developments reported earlier today, I just found this breaking news report from Tennessee:

By Executive Order, Governor Phil Bredesen today named a panel of criminal justice officials charged with making recommendations to preserve the use of enhancement factors in Tennessee’s criminal sentencing laws, in light of [Blakely]. The Governor’s

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Task Force on the Use of Enhancement Factors in Criminal Sentencing will determine if a special session of the General Assembly is necessary to protect the Tennessee Criminal Sentencing Reform Act called into question by the ruling and will determine what legislation, if any, might be necessary, officials said.

The newspaper article linked above is worth a read, in part because it includes the full text of the Governor's executive order. It also details the composition of the TFUEFCS (I made that acronym up myself):

The 13-member Task Force on the Use of Enhancement Factors in Criminal Sentencing will consist of the Attorney General and Reporter or his designee, the Commissioner of the Department of Correction, the Chairman of the Board of Probation and Parole, as well as one member from each House of the Legislature, to be appointed by the Speakers. Eight additional members will include at least one each of the following groups: appellate judges, criminal trial judges, general sessions court judges, district attorneys, public defenders, criminal defense lawyers and victims of crimes. [COMMENT: What?? No law professors?? Geez, we get no respect.] The Governor shall appoint a Chair from among the members, who will appoint five (5) ex-officio, non-voting, members to serve in an advisory capacity. The Task Force will report to the Governor no later than August 27 on whether a special session of the Legislature is necessary to revise the state’s sentencing laws. The group is also charged with recommending legislation even if it’s determined a special session is not necessary. In that case, the panel will have until November 15 to recommend legislation for next year’s session of the Legislature.

July 22, 2004 at 06:15 PM More state Blakely news in Minnesota and elsewhereAfter Wednesday was a huge Blakely day in the federal system, it looks like today might be dominated by state news (and particularly by northern states starting with an M). As first reported here, the Minnesota Court of Appeals issued the state's first major Blakely ruling ealier this week in the course of overturning a sex offender's 40-year prison sentence. To quote Paul Harvey, here's "the rest of the story": In State v. Whitley, the Minnesota Court of Appeals holds that the findings of fact under Minnesota's pattern sex-offender statute need now be proved to a jury beyond a reasonable doubt. As noted in the very helpful e-mail report to me about the case:

Interestingly, the Court indicates that Apprendi and a Minnesota Supreme Court case called Grossman, and not just Blakely, dictate this result. The remand instruction is cryptic, as Minnesota has no system of sentencing juries or anything of the sort (at least not yet).

In news from states not starting with an M, this well-done article from the Knoxville News-Sentinel reports on a Tennessee decision from an intermediate appellate court which reduce a defendant's sentencing by a year in a child abuse case following Blakely.And, Marcia Oddi over at the Indiana Law Blog has noteworthy posts here and here about the likely impact of Blakely on Indiana state sentencing.July 22, 2004 at 02:15 PM

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Coast to Coast Blakely developments in the statesIn addition to the decision by the California Supreme Court to tackle Blakely in a pending appeal, Blakely issues are start to crop up in other state appellate decisions around the country. Here are two interesting examples.Florida: In the (hard to follow) case of Sigler v. Florida, 2004 Fla. App. LEXIS 10485 (4th Dist. July 14, 2004), a Florida intermediate appellate court explained that, before Apprendi and Blakely, the "Florida Supreme Court [had] construed [Florida code] section 924.34 to authorize appellate judges to make a finding of guilt as to each element of permissive lesser included offenses in place of a jury determination. See I.T. v. State, 694 So. 2d 720 (Fla. 1997)." The Sigler court then explains its view that:

[T]hese later decisions [of Apprendi and Blakely] make it clear beyond any doubt that section 924.34 as interpreted in I.T. is contrary to the Sixth Amendment when the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element of the permissive lesser included offense. That means that as for this circumstance we are expressly holding the statute invalid under the United States Constitution.

In other words, the Sigler court is finding a Sixth Amendment limit on appellate judge fact-finding as well as sentencing judge fact-finding. Tennessee: Meanwhile, in Tennessee v. Fuller, 2004 Tenn. Crim. App. LEXIS 626 (July 13, 2004), the court frankly asserts that the "United States Supreme Court's recent opinion in Blakely v. Washington, 2004 U.S. LEXIS 4573 (2004), calls into question the continuing validity of our current sentencing scheme." Though the Fuller court then avoids finding a Blakely problem in the case at hand, it still seems noteworthy that the Tennessee courts already see problems with its sentencing schemes in light of Blakely.July 15, 2004 at 12:39 AM

Texas

The state of Blakely in various statesThis morning's WSJ article (detailed here) provides a great review of the state of Blakely in the federal system, but I find the state of Blakely in the states an even more interesting and dynamic story. Indeed, as detailed in some of my recent posts on the topic, the state Blakely story is too fast-moving and dynamic for me to track comprehensively. (More background here and here and here.)Fortunately, there other folks covering the Blakely story in particular states, and I can just report and link to their efforts. Today I have helpful reports on Indiana, North Carolina and Texas.INDIANA: As noted before here, Indiana's Blakely story is being well-covered by state lawyers there, and now I see that Michael Ausbrook at INCourts has this post which reviews all the Indiana cases that mention Blakely and their current status.

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NORTH CAROLINA: This newpaper article provides a very effective review of the story of Blakely in North Carolina. The article also details that the a subcommittee of the NC Sentencing and Policy Advisory Commission "has recommended that aggravating factors and some issues related to prior records be submitted to a jury to determine if they exist."TEXAS: With great thanks to Scott Henson at Grits for Breakfast, I can provide a link to this terrific research brief from the Texas Senate Research Center reviewing the story of Blakely in Texas. Here is the astute conclusion of this effective report:

Because Texas does not have the sort of determinate sentencing guidelines used by the State of Washington or the federal government, Blakely will not significantly impact Texas law. However, there are specific statutes in the Code of Criminal Procedure that authorize a judge to make an affirmative finding of fact that may be used to increase the defendant’s punishment, but the statutes are not clear whether this affirmative finding must be based on facts proved beyond a reasonable doubt to the trier of fact. These and any similar statutes could be subject to challenge under Blakely.

December 28, 2004 at 11:07 AM

Washington

Blakely in the states keeps chugging alongEven though the Supreme Court keeps keeping us waiting for Booker and Fanfan, the state courts continue to churn out Blakely decisions. Amazingly, only roughly a week into the new year, California already has 30 on-line decisions noting or discussing Blakely. I continue to wonder when the California Supreme Court will hear argument in the two Blakely cases on which it granted review nearly six months ago. I have to surmise that Court is, like the rest of us, waiting for Booker and Fanfan. And other intermediate state appellate courts are keeping busy this week, too. From Washington, yesterday brought State v. Ermels, 2005 WL 39762, (Wash. App. Div. 1, Jan. 10, 2005), in which the court affirmed a sentence over a Blakely objection based on the defendant's waive of his rights to appeal in his plea agreement. And today brought State v. Windrow, 2005 Wash. App. LEXIS 55 (Wash. App. Div. 2, Jan. 11, 2005), in which the state conceded Blakely error in the imposition of an exceptional sentence.In addition, today Minnesota released three notable Blakely decisions: State v. Minick, 2005 WL 43769 (Minn. App. Jan. 11, 2005) (reversing upward departure sentence based on Blakely); Vogt v. State, 2005 WL 43952 (Minn. App. Jan. 11, 2005) (holding that Blakely has no retroactive application); State v. Hajrusi, 2005 WL 44020 (Minn. App. Jan. 11, 2005) (same).January 12, 2005 at 01:29 AM

Interesting state Blakely reportsAfter a long but enjoyably uneventful trip to attend this conference, I am now on-line and on west coast time. And, upon checking my e-mail, I was pleased to find two reports about recent

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state Blakely developments. I hope the helpful correspondents won't mind me sharing their text verbatim:

From a correspondent in Alaska: "The Alaska Court of Appeals issued a decision in Alaska v. Gibbs, No. A-8953 (Alaska App. Jan 5, 2005), involving a straight application of Blakely. The court held that a sentence of unsuspended imprisonment that was less than the statutory maximum did not violate Blakely. The possibility that additional imprisonment might be imposed, if the defendant's probation were revoked, and thus violate Blakely was not yet ripe."

From a correspondent in Ohio: "The Ninth District Court of Appeals ruled today that Blakely does not apply to Ohio sentencing statutes calling them an indeterminate sentencing scheme. Cases are State v. Jenkins CA 22008 [2005 Ohio 11; 2005 Ohio App. LEXIS 5 (Ohio App. Jan. 5, 2005)] and State v. Rowles CA 22007."

In addition, I see on-line that Washington is keeping Blakely busy in the new year with another Blakely reversal: State v. Smith, 2005 Wash. App. LEXIS 16 (Wash. App. Jan. 4, 2005). (Other 2005 Washington rulings are detailed here.) Smith is notable because it generates a dissent over Blakely's applicability in a sex offender case involving a unique provision of Washington's sentencing law.January 6, 2005 at 01:29 AM

State Blakely cases ring in the new yearI joked here that I was waiting to see which court would be the first to issue a noteworthy Blakely ruling in 2005. Perhaps fittingly, the honor goes to the Washington state courts, which already has two new year Blakely rulings on-line: State v. Fero, 2005 WL 15171 (Wash. App. Div. 2, Jan. 04, 2005) and State v. Cartwright, 2005 WL 12021 (Wash. App. Div. 1, Jan 03, 2005). And, for those scoring at home, we also have on-line Blakely decisions from California and New Jersey this new year. See People v. Standifer, 2005 WL 15449 (Cal. App. 2 Dist. Jan. 04, 2005); State v. Vasquez, 2005 N.J. Super. LEXIS 4 (NJ App. Div. Jan. 4, 2005).The Fero case is the most notable of the bunch because it (1) reverses a sentence based on Blakely, (2) concludes that "the plain line of Apprendi, Neder, and Blakely, [establish that a Blakely violation] is a structural error and harmless error cannot apply," but (3) decides that the trial court may on remand "empanel a jury to consider aggravating factors without violating double jeopardy or the separation of powers." On the second point, one judge weighs in with a thoughtful "dissent from that portion of the opinion holding that Blakely violations are structural errors requiring automatic reversal." Significantly, as detailed here, an Illinois appellate court has also concluded that a Blakely error ought now to be viewed as structural error and not allow for harmless error analysis, although that court felt bound to conduct harmless error analysis because of rulings of its state Supreme Court. It is thus increasingly evident that the nature of Blakely error is another tough doctrinal issue that SCOTUS might need to resolve in the near future.January 4, 2005 at 11:27 PM

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More Blakely state reportsWith many thanks to the many FOBs ("friends of blog") sending in reports, I can follow up this morning's state Blakely round-up with some additional interesting state reporting. The states of note this afternoon are Minnesota, Ohio and Washington.MINNESOTA: The news from comes in the form of two decisions from Minnesota Court of Appeals. In State v. Hagen, C0-02-1318 (Minn. App. Dec. 28, 2004), the court clarifies that an "upward durational departure under the Minnesota Sentencing Guidelines may not be based on an "admission" by the defendant, under Blakely v. Washington, 124 S. Ct. 2531 (2004), unless the "admission" to an aggravating factor is accompanied by the defendant's waiver of his or her right to a jury trial on the aggravating factor." In State v. Brooks, A03-2050 (Minn. App. Dec. 28, 2004), the court concluded that Blakely did "does not require that a jury find, or a defendant admit, the existence of a custody status point" because (according to the court) assignment of those points are like a prior conviction. OHIO: The report here is a third-hand account from an Ohio lawyer "that Ohio Supreme Court Chief Justice Moyer, at a training for new judges, said that the Ohio Supreme Court was taking Blakely 'VERY seriously.'" This is great news because, as noted in a number of previous posts (examples here and here and here and here), the story of Blakely in Ohio is very serious.WASHINGTON: The report from Blakely's home state is that a group a committee of prosecutors and criminal defense lawyers have a proposal in the works for the Washington legislature when it reconvenes next month which would involve the "Blakely-ization" of Washington's guideline scheme by providing for aggravating facts, other than the fact of a prior conviction, to be placed before the jury.December 28, 2004 at 06:42 PM

More holiday season state Blakely rulingsAs noted before, with all the major Blakely rulings early this month (some details here), I thought the holiday weeks might be quiet on the Blakely front. But, as detailed here and here, just the first few days last week brought more than a dozen state and federal appellate cases dealing with Blakely issues. In addition to the previously noted rulings here, a few more state Blakely decisions from last week recently came on-line with Patrick v. State, 2004 WL 2965848 (Ind. App. Dec. 23, 2004) (which is discussed at length here by Michael Ausbrook at INCourts) and also State v. Whatley, 2004 WL 2964710 (Tenn. Crim. App. Dec. 22, 2004). And today from the west coast today came State v. Clarke, 2004 WL 2980283 (Wash. App. Div. 1, Dec. 27, 2004) and People v. Brooks, 2004 WL 2980298 (Cal. App. 2 Dist., Dec. 27, 2004)December 27, 2004 at 10:31 PM

No double jeopardy worries in WashingtonIn State v. Maestas, 2004 WL 2650646 (Wash. App. Div. 1 Nov. 22, 2004), a Washington intermediate appellate court rejects, after the State conceded a Blakely problem with the

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imposition of an aggravated sentence based on judicial fact-finding, the defendant's assertion that "to impose such a sentence on remand would violate principles of double jeopardy." In a thoughtful and thorough opinion, the Maestas court explains why it concludes "that double jeopardy is not implicated in the resentencing of Maestas on remand. Should the court choose to impose an aggravated exceptional sentence following procedures that comply with the dictates of Blakely, double jeopardy does not bar doing so."November 22, 2004 at 07:58 PM

So many more state Blakely rulingsThe noteworthy Blakely rulings from state courts continue to come in at a fast and furious pace (see here for more recent evidence). Already this week alone, we have more consequential rulings from Indiana, Ohio, New Jersey and Washington (and, of course, the obligatory weekly collection from California). Also, just on line is an important Delaware ruling from last week. Though all of these decisions deserve fuller discussion, today the best I can reasonably do is provide summary highlights. I encourage readers to use the comments to note any exceptional features of these cases that merit spotlighting:

In Benge v. State, 2004 Del. LEXIS 506 (Del. Nov. 12, 2004), the Delaware Supreme Court declared "Blakely does not impact Delaware's sentencing scheme because the SENTAC guidelines are voluntary and non-binding."

In Lampitok v. State, 2004 WL 2590817 (Ind. App. Nov. 16, 2004), the court drops a footnote to give the "prior conviction" exception a broad application (INCourts provides more details here);

In State v. Berry, 2004 WL 2580555, 2004-Ohio-6027 (Ohio App. 12 Dist. Nov. 15, 2004), the court articulates two bases on which the court claims Ohio's sentencing system completely escapes the application of Blakely;

In State v. Natale, 2004 WL 2599892 (N.J. Super. A.D. Nov. 17, 2004), the court concluded New Jersey's presumptive sentencing scheme is generally impacted by Blakely (and, again, INCourts covers the highlights here);

In State v. Alkire, 2004 WL 2580772 (Wash. App. Div. 1, Nov 15, 2004), the court upholds a sentence based on the "prior conviction" exception (and does despite the fact the defendant's "invites this court to abandon the 'crumbling foundation' of Almendarez-Torres and the prior conviction exception").

And, for continuing coverage of the continuing stream of California cases, remember that the First District Appellate Project is here keeping up with recent major rulings, and Jonathan Soglin here notes a California published opinion that apparently breaks a little new ground.November 18, 2004 at 09:25 AM

The full Blakely in Washington stateContinuing the trend of rapid-fire state Blakely decisions of great insight and important, on Monday in State v. Harris, 2004 WL 2378276 (Wash. App. Div. 1, Oct. 25, 2004), a Washington appellate court thoughtfully reviews an array of Blakely issues — ranging from severability to court power to double jeopardy — in the course of reaching this result:

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We conclude that the exceptional sentence statutes are not facially invalid. But because Harris' stipulation at trial did not admit the facts the court relied on to support the exceptional sentence, we reverse the sentence. We also hold that the superior court on remand has authority to empanel a jury to consider aggravating factors.

The decision can also be accessed here, although it is easier to read on Westlaw. Strangley, though, this important concurring opinion in Harris is not right now appearing on Westlaw. The concurrence starts with this paragraph:

I agree with the majority that our statutes, governing case law, and court rules support the conclusion that trial courts have inherent power to empanel juries to try alleged aggravating sentencing circumstances. I write separately to emphasize that whether courts invoke that power is another matter, requiring careful consideration of the circumstances and the interests of justice in each case.

October 26, 2004 at 01:27 AM

State of state Blakely appealsA very knowledgeable reader reports that the interesting Van Buren decision from Washington state (discussed here) "is likely to have a very short shelf life" because the Washington Supreme Court has "recently granted review in no fewer than 6 Blakely cases — each with a different issue of retroactivity, the extent of the prior conviction exception, the scope of Blakely facts, etc." According to this report, "oral arguments will be held on November 9 and 10."In addition to providing an interesting example of a state supreme court's proactive approach to settling a host of unsettled Blakely issues, this report leads me to wonder (1) how many state supreme court decisions addressing Blakely we may see before the end of the year, and (2) whether and when the US Supreme Court will get involved if state supreme courts reach different conclusions about fundamental Blakely issues such as the decision's retroactivity, the extent of the prior conviction exception, the scope of Blakely facts, the application of Blakely to judicial fact-finding to support imposition of consecutive sentences, etc.October 6, 2004 at 09:00 PM

Confining Blakely's impact in its home stateAs folks in Washington monitor the recent activity of the Mount St. Helens volcano, an intermediate appellate court in Washington has done its best to limit the impact of the Blakely earthquake. In State v. Van Buren, 2004 WL 2222263 (Wash. App. Div. 2 Oct. 05, 2004), the court makes the following rulings about the reach and application of Blakely under Washington sentencing law:

First, Blakely applies to all cases in which review was not final on June 24, 2004. Second, under Blakely, a jury must find disputed facts beyond a reasonable doubt before the sentencing court may rely on these facts to impose an exceptional sentence above the standard range. Third, Blakely does not require a jury determination of a defendant's criminal history. Fourth, the calculation of a defendant's offender score is not a question

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of fact but a legal calculation made by the sentencing judge after consideration and resolution of legal issues and rulings on statutes and laws that apply to the defendant's criminal history. Thus, a defendant's offender score is not a question of fact that must be proved to a jury beyond a reasonable doubt. Fifth, whether there are substantial and compelling reasons to impose an exceptional sentence is a "proportionality" type judgment for the sentencing court. Sixth, whether a defendant with an offender score greater than nine receives "free crimes" if sentenced within the standard range is part of the calculation of a defendant's offender score and is not a question of fact for the jury.

The thorough and thoughtful opinion in Van Buren thus serves to limit the impact of Blakely in various important ways: it calls Blakely a new rule and consequently only applicable to cases still on direct review, and it relies upon the "prior convictions" exception and a robust fact/law distinction to restrict the number and type of findings that must be made by a jury under Washington law. Though some of the conclusions reached in Van Buren about Blakely's reach might be disputed, the court's decision is well-reasoned and paints a picture of how Blakely can be reasonably integrated into at least some existing guideline systems without creating too much "carnage and wreckage."October 6, 2004 at 09:00 AM

Now, the more intersting story...Though I still have pages and pages of undeveloped notes from yesterday's Booker and Fanfan argument, I have already worn myself out with the half-dozen posts about the event to be found below. Moreover, when all is said and done, I think the story of Blakely in the states is even more interesting (and often less discouraging) that the federal Blakely story. And, as is now true nearly every day, there are new state Blakely developments to report.Specifically, from North Carolina, today we get a Blakely reversal in State v. Harris, 2004 WL 2215184 (N.C. App. Oct. 05, 2004), in a case involving the imposition of an aggravted term based on a judicial finding that the defendant's offense was "especially heinous, atrocious, or cruel." From Minnesota, we get remands in two cases involving upward departures so that sentencing courts can consider the impact of Blakely. See Santiago v. Minnesota, 2004 WL 2221929, (Minn. App. Oct. 05, 2004); Minnesota v. Seelye, 2004 WL 2219663 (Minn. App. Oct. 05, 2004). And, of course, no week would be complete without a California Blakely cases from the state's intermediate court, and in People v. Gaitan, 2004 WL 2212089 (Cal. App. 1 Dist. Oct. 04, 2004) we get a thoughtful remand for resentencing on Blakely grounds.But the big state news today comes from Blakely's home state, Washington: an intermediate appellate court decision in State v. Van Buren, 2004 WL 2222263 (Wash. App. Div. 2 Oct. 05, 2004), makes an array of (interesting and debatable) rulings about what sorts of findings a judge can and cannot make under Blakely and Washington law. I hope to discuss the Van Buren case at some length later tonight.October 5, 2004 at 06:19 PM

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Interesting Blakely viewsThis morning I came across two interesting opinion pieces relating to Blakely. First, in this editorial from the Seattle Times concerning an election for an open seat on the Washington Supreme Court, there was this fascinating Blakely-related passage:

[Candidate Jim] Johnson is a strict constructionist, and would be more likely than [rival Mary Kay] Becker to invoke the Constitution to strike down a law. Becker, the former legislator, says, "One of the rules we follow is, you don't reach for the Constitution right off the bat." She stresses that the court's decisions have to be practical, so that people can live with them. Despite this difference, Johnson and Becker both support the U.S. Supreme Court's Blakely decision. There, the court said that in sentencing a felon, a judge could not add three years for cruelty if the cruelty had not been proven to a jury. "The right of trial by jury is fundamental," Becker said. "Those might sound like 'liberal' sentiments, but they are really also conservative."

Meanwhile, on the other side of the country, according to this story coming from Duke University, esteemed Duke University Law Professor Erwin Chemerinsky says Justice Stephen Breyer should recuse himself from Booker and Fanfan:

"There's no doubt that Stephen Breyer is one of the 'parents' of the federal sentencing guidelines," said Chemerinsky.... "When he was the Chief Counsel to the Senate Judiciary Committee, he played a key role with regard to the Sentencing Reform Act [passed in 1984], which created the Sentencing Commission that created the guidelines. Justice Breyer was also on the first Sentencing Commission that created the guidelines in the very structure at issue in these cases, though by that time he was a First Circuit judge. Should a justice who played such a key role in developing the sentencing guidelines now participate in considering their constitutionality? "My own opinion is that he should recuse himself," said Chemerinksy, who has two cases currently on the Court's docket, as counsel and co-counsel. "I don't think a member of Congress who participated in sponsoring a bill or drafting legislation should then, on the federal court, rule on the constitutionality of that, and I think Justice Breyer is in the same position."

Many thanks to Professor Paul Caron, of TaxProf Blog fame, for the pointer to the Chemerinksy article. September 30, 2004 at 12:30 PM

A means for Supreme Court (re)considerationI knew I saved my old edition of Hart and Wechsler's The Federal Courts and The Federal System for a good reason. It makes for a great little read on the certification procedure employed yesterday by the Second Circuit. In my yellowed Third Edition at pp. 1836-40, the section

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concludes with this choice quote from Wright et al.: "The sooner [abolition of certification] is accomplished by statutory amendment, the better."Meanwhile, I now have word of another development that calls for pulling out the history books. Today Professor Rory Little, new counsel for the State of Washington, has told me about the filing of an "Application for Extension of Time to File a Petition for Rehearing on Behalf of the Respondent State of Washington." In other words, the State of Washington has plans to seek Rehearing of the original Blakely decision, even though the US Supreme Court apparently has not substantively granted a merits rehearing petition in nearly 50 years.I have attached at the bottom of this post a pdf version of the petition, and here's the key part of the substantive argument:

Washington candidly recognizes that rehearing in this matter is legitimately viewed by many as unlikely. However, we believe the case merits the fullest possible attention at this juncture. This Court seems certain to soon grant merits hearings to other jurisdictions on the validity of their own sentencing regimes under Apprendi and the reasoning in Blakely.... We do not believe that the State of Washington fairly should be compelled to suffer the first blow as other jurisdictions continue to argue the implications of this Court’s closely-decided cases in this area. Rather, Washington should be permitted to participate in what will apparently be the definitive re-argument of the issues.

In dialogue with me about this effort, Rory thinks the Court should ultimately grant rehearing of Blakely itself as a matter of "fair Federalism." The idea is based on the sensible notion that, perhaps quite soon, the High Court is going to have a major "Apprendi day" in which the first principles of Apprendi will be re-examined. Says Rory: "If they are going to allow every other jurisidiction to argue that their regimes are distinguishible, why should Washington State have been made to walk the plank (so to speak) alone? Perhaps no one will change their mind. But if one did, Washington will have suffered a very unfair blow. The next arguments will NOT be simply about 'are the guidelines constitutional under Blakely.' They will inevitably and ineluctably go quickly to 'what is the bedrock constitutional theory that is operating here?' Rehearing of the case that stimulated that path is not just appropriate, but fair."Download extension_rehearing_petition.pdfJuly 13, 2004 at 04:41 PM

Blakely’s impact in the other WashingtonWith a big week ahead as the folks in Washington DC cogitate about how to deal with Blakely in the federal system, we should recall that it was the other Washington which got this whole Blakely ball rolling. And, proving the impact will be consequential there, too, here's an article from Washington state detailing a case of a "businessman who stole $215,000 from his ailing stepmother [who] will be released from prison about 2.5 years early" due to Blakely problems in the extraordinary sentence he originally received.July 11, 2004 at 11:47 PM

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Wisconsin

Thoughtful coverage of major sentencing issuesI have praised the press's recent potent coverage of a range of sentencing law and policy issues (some examples here and here and here), and this morning there are more fine articles on all the most important sentencing issues of the day:

This article from the St. Cloud Times provides a complete and insightful review of the impact of Blakely on Minnesota state sentencing. (Other weekend articles on Blakely's impact in other states are here.) The article includes the important news that the "fear of numerous two-part trials hasn't materialized" after Blakely apparently because many courts are using "special verdict forms that ask jurors whether they believe the aggravating factors exist" at the main trial of guilt.

This article in the Milwaukee Journal Sentinel, written by state Judge Michael Brennan, serves as a fitting follow-up to the paper's terrific series of sentencing articles entitled "Locked In: The Price Of Truth In Sentencing" (detailed here and here and here). Judge Brennan in his article reviews, with many national insights, the state of sentencing in Wisconsin.

This article in The Oregonian thoroughly reviews a challenge to the state's death penalty laws which could "threaten the death sentences of all 29 men on Oregon's Death Row." The article provides even more fuel for my recent speculation here that the punishment of death may itself be dying a slow death.December 12, 2004 at 09:04 AM

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