Wednesday, November 17, 2004

Natale Opinion Issued: A Preview for Indiana?

The New Jersey intermediate appellate court (the Superior Court Appellate Division) issued its decision in State v. Natale today. It is available from the New Jersey courts’ website here. (I do not know if this location will be permanent. If someone discovers later that the link is dead, please let me know, and I will try to find the case's permanent home.)

Procedurally, the Natale panel conditionally stays its opinion. The condition is that the State file a petition for certification with the New Jersey Supreme Court within 10 days.

There is a lot to digest from this opinion, and it is worth reading in its entirety. But here are the points that are perhaps most directly relevant to Blakely in Indiana.

Application of Blakely to Increased Sentences

Although the court recognizes that “Washington's statutory complex is different than the New Jersey statute,” the New Jersey statute “creates a ‘presumptive sentence’ in an offense-based sentencing structure in which aggravating and mitigating factors are used to increase or decrease the presumptive term within the only sentence range created by statute for the offense.” Slip op. at 11-12. The court also concludes that there is no “material difference for constitutional purposes” between the Washington and New Jersey statutes:

There is no doubt that the New Jersey Code of Criminal Justice permits only the presumptive sentence embodied in N.J.S.A. 2C:44-1f(1) to be imposed based on the jury's verdict. The presumptive sentence embodied in that section "shall" be imposed unless the sentencing judge finds that an aggravating or mitigating factor or factors exist and weigh in favor of a higher or lower term within the limits provided in N.J.S.A. 2C:43-6. Therefore, the presumptive sentence, on its face, "is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict." Blakely, supra, 124 S. Ct. at 2537. Stated differently, in the words of Blakely, the “presumptive sentence” is “the maximum [the judge] may impose without [making] any additional findings” not made by the jury. Ibid. “[T]he jury's verdict alone does not authorize the [enhanced] sentence” above the presumptive. Blakely, supra, 124 S. Ct. at 2538 (alterations in original).

Accordingly, we find N.J.S.A. 2C:44-1f(1) unconstitutional to the extent that it permits the trial judge to increase the presumptive sentence in the absence of jury fact-finding, based on proof beyond a reasonable doubt, of the aggravating factors on a basis other than relating to a prior conviction.

Slip op. at 13-14 (some citations omitted) (parallel citations omitted). Among the citations I have omitted, in a list of "see also" cases, are Indiana's very own Strong and Krebs. So the Natale panel appears to think New Jersey's and Indiana's "presumptive" sentencing schemes are sufficiently similar to partially rely upon the similarity.

Notably, the Natale panel did not do either of two things. It did not find the statute at issue facially unconstitutional; and it did not even suggest reconstruing the statute to avoid the statute's real and potential unconstitutional applications. Maybe I'll post about this separately later, but it seems to me that Indiana's general sentencing statutes are similar to New Jersey's at least in this one respect: none of them are facially unconstitutional, although several have quite real unconstitutional applications. (Here is the link to the Marion County Public Defender Agency's list of Blakely "impacted" statutes as submitted together with its amicus brief in Heath and Smylie.)

So, to return for a moment to the oral arguments in Heath and Smylie, and to Justice Dickson's exchange with Lorraine Rodts about reconstruing "shall" to mean "may" in all of the sentencing statutes fixing the penalties for Murder and each felony class, I have a question. May a court reconstrue a statute to save it from "constitutional infirmities," if the statute is not unconstitutional on its face? I do not think I have ever seen such a maneuver, but if anyone else has, I certainly invite a comment. I also don't think I have ever seen reconstruction of a series of statutes, no one of which is facially unconstitutional, in order to save the legislative system created by the statutes.

Consecutive Sentences

Following its own case, State v. Abudllah, and three California cases, the court "decline[s] to prohibit the imposition of consecutive sentences based on judicial fact-finding." Slip op. at 18. The reasoning with respect to consecutive sentencing in Abdullah was borrowed from People v. Sykes, a California case that was possibly the first case nationally to address the application of Blakely to consecutive sentences way back on July 28th. Abdullah says with respect to consecutive sentencing:

Both Blakely and Apprendi involved a single offense. Neither dealt with, nor are they applicable to, the determination of consecutive sentences. See People v. Sykes, 120 Cal. App. 4th 1331 (2004) (noting that the historical and jurisprudential basis for the Blakely and Apprendi holdings did not involve consecutive sentencing). Although the imposition of consecutive terms and a five-year term of parole ineligibility, N.J.S.A. 2C:43-6b, increase defendant's punishment, they do not increase the penalty above what the law provides for the offense charged. See Harris v. United States, 536 U.S. 545, 562 (2002) (plurality opinion).

(Parallel citation omitted.) (Abdullah follows Carson with respect to derivative criminal history, by the way.) Because Sykes and other California cases relying on it are so often cited, as in Abdullah, I think it is worth pulling out here the important paragraph about Blakely and consecutive sentencing in Sykes:

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. (Blakely v. Washington, supra, 124 S. Ct. at pp. 2534-2536; Apprendi v. New Jersey, supra, 530 U.S. at pp. 476-483, 489-490, fn. 15.) Further, in Apprendi, Associate Justice John Paul Stevens explained the jury trial right at issue: “We do not suggest that trial practices cannot change in the course of centuries and still remain true to the principles that emerged from the Framers’ fears ‘that the jury right could be lost not only by gross denial, but by erosion.’ Jones [v. United States (1999)], 526 U.S. [227,] at 247- 248 []. But practice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reasonable doubt.” (Apprendi v. New Jersey, supra, 530 U.S. at pp. 483-484, fn. omitted, italics added.) The consecutive sentencing decision does not involve the facts, in Justice Stevens’ words, “necessary to constitute a statutory offense.” (Id. at p. 483.) In fact, the 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. In this respect, we are in full accord with the numerous courts that have held that Apprendi does apply to the decision to impose consecutive sentences.

Slip op. at 15-16. (Emphasis added) (some citations omitted) (parallel citations omitted).


To return to Natale, the paragraph on remedies is important:

We remand to the Law Division to consider the appropriate remedy. The State shall be given the opportunity to reconsider its pre-Blakely waiver of the right to present the NERA factors on the second-degree aggravated assault to a jury. The State may also elect to try the relevant aggravating factors, previously found by the trial judge, to the jury on all convictions. If the State seeks the latter, the judge shall consider all issues raised concerning the need for a supplementary indictment before the aggravating factors are presented to the jury. We find no double jeopardy concern in these circumstances so long as the sentence is not increased.

Slip op. at 15. (Citation omitted) (footnotes omitted). So two things would appear from this. First, even in the absence of statutory authority, reindictment and presentation to a jury of the aggravating circumstances seems alright. More importantly, though, the court is not taking the "aggravating circumstances as elements" completely seriously. On the one hand, because reindictment appears to be required (New Jersey has a grand jury indictment requirement, if I understand correctly), one might think what the new indictment would have to contain are additional "elements." On the other hand, that reindictment is possible and there is no double jeopardy problem without a greater resulting sentence means that the court is not treating offense plus aggravating circumstances as a greater offense for double jeopardy purposes. If it were, the State would not be able to go back to get a "conviction" for the "greater offense," having obtained the conviction for the lesser, which remains untouched by Natale's appeal.


There does not appear to be a word in the case about waiver.

Harmless Error Analysis

In foonote 5, the court says, "Given the [aggravating] factors used here, we decline to consider that the judge's findings are subject to a harmless error analysis." Slip op. at 15. The aggravating factors found by the trial judge the first time around were: 1) the crime was committed in an especially heinous, cruel, or depraved manner; 2) the gravity and seriousness of harm inflicted on the victim; 3) the risk that the defendant will commit another crime (not based on prior convictions or criminal history); and 4) the need for deterring the Defendant and others from violating the law. Slip op. 4-6.

I had never considered whether the aggravating factors or circumstances used might condition the application of harmless error analysis. At first glance, this seems to me a pretty unusual approach, if not unique.

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