Wednesday, November 24, 2004
State v. Maestas: Double Jeopardy & Resentencing
On Monday, the Washington Court of Appeals issued an opinion dealing with the double jeopardy problem potentially posed by Blakely on remands for resentencing. As Judge Posner initially noted at the end of his Booker opinion immediately after saying that a sentencing jury on remand was a possibility: "Of course this will not work if the facts that the government would seek to establish in the sentencing hearing are elements of a statutory offense, for they would then have to be alleged in the indictment, and to re-indict at this stage would present a double-jeopardy issue."
So here is how the Washington Court of Appeals handled the "aggravating circumstance as element" problem in State v. Maestas, No. 52977-3-I (Wa. Ct. App. Nov. 22, 2004), minus footnotes, finally rejecting Maestas's double jeopardy claim:
Thus, Maestas focuses his argument on the second of the three exceptions to the general rule that double jeopardy does not apply to non-capital sentencing. He argues that the aggravating sentencing factors act as elements of a greater substantive crime because they increase punishment to which he is exposed. He argues further that these aggravating sentencing factors constitute an element of a greater offense for purposes of the right to jury trial and constitute a new offense for purposes of double jeopardy. We are unpersuaded that these arguments support the view that double jeopardy is implicated here.
First, Maestas relies on language in Sattazahn v. Pennsylvania for the proposition that there is no reason to distinguish between what constitutes an offense for double jeopardy purposes under the Fifth Amendment and what constitutes an offense for the right to trial by jury under the Sixth Amendment. But that reliance is misplaced because that portion of the opinion on which he relies only expresses the views of a plurality of the United States Supreme Court.
Second, even if we assume for purposes of argument that the aggravating factors here were part of a greater substantive crime, double jeopardy would still not be implicated. A similar argument was made and rejected in a recent case before the Idaho Supreme Court in State v. Lovelace. There, the trial court found that double jeopardy principles barring subsequent trial on a greater crime or after acquittal of a greater crime did not apply. The court in Lovelace noted that in Sattazahn, a death penalty case, the supreme court stated that "[i]n the post-Ring world, the Double Jeopardy Clause can, and must, apply to some capital-sentencing proceedings [and that i]f a jury unanimously concludes that a State has failed to meet its burden of proving ... aggravating circumstances, double-jeopardy protections attach to that 'acquittal' on the offense of 'murder plus aggravating circumstance(s)' on remand.' But in the case of Lovelace, the sentencing judge had found one or more aggravating circumstances. Thus, there was no acquittal of a greater offense at all and jeopardy did not attach.
Here, as in Lovelace, the sentencing judge concluded there was sufficient evidence to find aggravating circumstances. Thus, Maestas cannot now claim that he was acquitted of any greater crime such that double jeopardy would be implicated.
Maestas also relies on United States v. Patterson for the proposition that jeopardy attaches when the trial court accepts a guilty plea. In Patterson, the trial court accepted the defendant's guilty plea to manufacturing marijuana but left the determination of the number of marijuana plants for sentencing. The trial court later accepted the guilty plea but rejected the plea agreement. Patterson did not challenge his plea, but the trial court vacated it on the State's motion. On appeal, the court observed that where a defendant challenges his plea and it is set aside, the general rule is that double jeopardy is not implicated by a subsequent prosecution on the same charge. But because Patterson had not challenged the plea, the trial court was not free to vacate it. Jeopardy attached when Patterson entered his guilty plea and did not appeal it.
That case is not helpful here. No one seeks to set aside the guilty plea. All that is at issue is the sentence. And for the reasons that we have already stated in this opinion, resentencing does not fall under any of the exceptions to the general rule that double jeopardy is not implicated in a non-capital case.
In sum, we conclude 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.