Blakely topped 1,000 cases yesterday or the day before. At about eleven last evening, I came up with 1,020 cases.
The California Court of Appeals (Sixth District) recently decided a case summarizing nicely the waiver debate in California: People v. Ackerman, 2004 Cal. App. LEXIS 1938 (Cal. Ct. App. November 18, 2004). From a look at footnote 2, it is really not much of a debate. The single California case finding Blakely claims forfeited by the failure to raise the issue in the trial court is People v. Sample, the only state case relied upon by the State in Heath and Smylie for its waiver argument. (I discussed the "wall of authority" contrary to Sample here in the run-up to the oral arguments.)
What is arguably new about Ackerman is the focus on the reason not to apply California's usual waiver rule:
In our view, the waiver rule from Scott does not apply to claims of Blakely error. In Scott, the court reasoned that its waiver rule was necessary to facilitate the prompt detection and correction of error in the trial court, thereby reducing the number of appellate claims and preserving judicial resources. However, Scott's pragmatic rationale does not support the application of the waiver rule here. Prior to Blakely, California courts and numerous federal courts consistently held that there was no constitutional right to a jury trial in connection with a court's imposition of consecutive sentences.
Mike Limrick in his first article in April 2003 about Apprendi's application properly pointed out that the Court of Appeals foreclosed Apprendi challenges to Indiana's non-capital sentencing scheme in a footnote in Parker v. State, 754 N.E.2d 614, 618 n.7 (Ind. Ct. App. 2001), where the court said: "A Class A felony has a sentencing range from a presumptive thirty years to a maximum of fifty years. See Ind. Code § 35-50-2-4. Parker received forty years with a five-year enhancement. The application of the enhancement for use of a handgun in Parker's case did not, as a result, increase the maximum penalty for his offense." That the claim was foreclosed might be why defendant's should not be penalized for "failing" to raise it before Blakely.
And a final note for today. The Court of Appeals has decided seven criminal cases in the last two days. Not a single one has a breath of or about Blakely. I have thought that Blakely arguably affects almost any criminal case. I wonder if the Court of Appeals is holding on to its Blakely cases now that Booker, Fanfan, Heath, and Smylie are all on the very near horizon.