Tuesday, December 28, 2004

Arizona: An older case with some new ideas

Though not easy to put up my own Christmas and New Year’s posts with all the trimmings, i.e., links, flags, and music, I have been able to catch up on some Blakely reading. There are some fascinating cases that I have missed along the way, which I guess should not be surprising since in the half-turn of Blakely World, the number of opinions reported online at least mentioning Blakely are legion, if not yet myriad. (As should be clear from my list of Indiana cases and their status posted yesterday, that does not mean that anything like that number of cases actually decide anything based on Blakely. That is, a large percentage of cases that mention Blakely are non-Blakely cases, especially those coming out of the Circuit Courts of Appeal that have rejected Blakely’s application to the federal Guidelines.)

I still want to get to Dilts, but I just read a fascinating opinion from the Arizona Court of Appeals that is already venerable, if not ancient, having been decided on November 10th: State v. Resendis-Felix, 100 P.3d 457 (Ariz. Ct. App. Div. 2 Dep’t A November 10, 2004). The majority and concurring opinions really add something new to the Blakely debate—at least in my experience of the debate. The majority opinion treats Blakely error as "fundamental error," not subject to procedural default, but subject to harmless error analysis. The concurring opinion provides the best discussion I have seen of structural error vs. error subject to harmless error analysis, distinguishing Neder in a compelling discussion, and concluding that Blakely error is structural of the Rose v. Clark and Sullivan v. Louisiana variety. In fact, it appears the majority would have agreed with the concurrence on this point but for the Arizona Supreme Court’s opinion in the remand from the United States Supreme Court in Ring, which comes down on the Neder / Cotton side of the fence, at least with respect to Apprendi.

It will be interesting to see, in the end, where the United States Supreme Court comes out on Blakely and structural error. If the Court doesn’t come up with something like the concurring opinion in Resendis-Felix, making some fine, but well-founded distinctions, something is going to have to give: either Rose and Sullivan or Neder and Cotton.

Just as the pressure to avoid retroactivity, even if just to Apprendi, will be considerable, given Blakely’s potential reach, so also will be the inclination, I think, to apply Neder and not Rose and Sullivan. Will there be anything in Booker and Fanfan about this aspect of Blakely?

Before reading the passage about Arizona "fundamental error," recall that Justice Sullivan, during the Heath and Smylie arguments, said he believed Indiana "fundamental error" to be very similar to federal plain error. I personally think that Indiana "fundamental error," at least as it has been described in the cases for many many years, is not at all like federal plain error and is much closer to what the Arizona Court of Appeals describes. It will be interesting to see if Blakely pushes the Indiana Supreme Court to now change the definition of "fundamental error" so that it becomes, in fact, more similar to federal plain error.

In any event, here is what the Resendis-Felix majority had to say:

Sentencing a defendant outside constitutional limits creates an illegal sentence, which can constitute fundamental error. "In limited circumstances, we recognize that some issues may be so important that overriding considerations concerning the integrity of the system will excuse a party's failure to raise the issue in the trial court. This limited exception is known as the doctrine of 'fundamental error.'" State v. White, 194 Ariz. 344, P 45, 982 P.2d 819, 829 (1999).

Based on the Supreme Court's holding and rationale, we believe Blakely error falls within that "limited exception" and, unless harmless, constitutes fundamental error. We will, therefore, in our discretion address Resendis-Felix's supplemental issue. See State v. Taylor, 187 Ariz. 567, 931 P.2d 1077 (App. 1996) (appellate court has authority to reverse when it discovers fundamental error); see also State v. Dewakuku, 208 Ariz. 211, P 7, 92 P. 3d 437, 440 (App. 2004) (considering application of Apprendi to finding of defendant's onrelease status, even though defendant had not objected to court's making finding below, because "a sentence that is improperly imposed can be reversed on appeal despite the lack of an objection"); State v. Johnson, 183 Ariz. 358, 903 P.2d 1116 (App. 1995) (fundamental error for trial court to make sentence-enhancement determination jury was required to make) . . . .

(Some citations omitted). There is one major difference between Arizona and Indiana "fundamental error": in Indiana, correction of fundamental error, whatever it may be, is a duty and not a matter of discretion.

The discussion of structural vs. (potentially) harmless error in the concurring opinion is lengthy and is worth reading in its entirety. An edited version, stripped of most of the legal apparatus, follows:

[W]e can only determine whether harmless error analysis is appropriate after we have assessed the nature of the underlying constitutional deprivation and the extent to which it affects the basic framework within which a trial proceeds in our criminal justice system. Although our supreme court's opinion in Ring III addressed the same species of error that we address here in the Blakely context, the nature of the resulting constitutional deprivation and its impact on the fundamental framework of our system of justice is significantly different, given the context of our state noncapital sentencing scheme. . . .

In finding that Ring error was subject to harmless error review, our supreme court emphasized that Arizona's preexisting capital sentencing scheme had provided important procedural protections inherent in the right to jury trial, including "the correct standard of proof." Ring III, 204 Ariz. 534, P 50, 65 P. 3d at 935.

In contrast, the error we address here, the judicial imposition of a non-capital sentence greater than that authorized by the jury verdict ("Blakely error"), occurred against a significantly different statutory framework. Under that framework, Resendis-Felix had no right to presentence notice of the aggravating factors that the state would assert or the trial court might find. He had no right to insist that the state present proof of those aggravating factors in conformity with the rules of evidence and, therefore, no right to challenge that information through cross-examination. And, most importantly, Resendis-Felix did not enjoy the right to insist that the aggravating factors be proven beyond a reasonable doubt. To the contrary, the noncapital scheme does not even require the trial court to find the existence of aggravating factors by a preponderance of the evidence.

Thus, while Ring error and Blakely error arise from the same essential flaw - the failure to afford a defendant a jury trial on facts that are necessary predicates to an increased sentence - Blakely error far more dramatically insults the core structures under which a trial proceeds and without which a trial could not "reliably serve its function as a vehicle for determination of guilt or innocence." Rose, 478 U.S. at 577-78. If the defendant's right to notice, to challenge adverse evidence through cross-examination, and to be presumed innocent unless proven guilty beyond a reasonable doubt are not three of the core structures by which a criminal trial assures a reliable result, I cannot fathom what those structures might be.

Indeed, the United States Supreme Court has found structural error when faced with a comparatively mild insult to the framework of the criminal trial process. In Sullivan v. Louisiana, 508 U.S. 275, 278, 281-82 (1993), it found structural error when the trial court erroneously instructed the jury so as to allow a conviction on the mere probability of guilt rather than upon proof beyond reasonable doubt. Here, Resendis-Felix was not only deprived of an accurate reasonable doubt instruction, but the trial court may well have found him guilty of four aggravating factors based only on "reasonable evidence," a standard which imposes no burden of proof at all.

In short, Resendis-Felix was entitled to a jury trial to determine whether the aggravating factors that were a necessary predicate to his aggravated sentence were proven. The trial court, in finding those factors under Arizona's sentencing scheme, fell short of that requirement in a fashion that offended the core structures under which such a jury trial would function as a reliable fact-finding process. In my view, the trial court therefore committed structural error.

The United States Supreme Court's opinion in Neder v. United States, 527 U.S. 1 (1999), compels no different analysis. There, the Court found that a trial court's failure to instruct the jury on the materiality element of tax fraud was subject to harmless error analysis. Id. at 15 Although Blakely error could be similarly described as the omission of an element necessary to impose an aggravated sentence and would, as such, arguably be subject to harmless error analysis under Neder, the Neder opinion itself does not encourage such a mechanical application of its holding.

First, the opinion reaffirms the standard set forth in Rose, which focuses structural error analysis on the specific features of the actual constitutional deprivation in the context of the reliability function of a jury trial. Neder, 527 U.S. at 8-9, 17 n. 2. As demonstrated above, that analysis can expose dramatically different insults to the structure of a jury trial even when the error arises from identical constitutional deprivations. Thus, the failure to provide a jury trial on an element of an offense can, under some circumstances, cause no significant disruption to the core structures of a jury trial (Ring error) while, under other circumstances, it can fundamentally undermine the purposes of the jury trial guarantee altogether (Blakely error).

Second, the majority in Neder repeatedly suggests that it might have reached a different result if the omission in the case before it had more substantially undermined the structures designed to promote the reliability of a trial result. Initially, it observed that the omission of an element does not "necessarily" satisfy the Rose criteria for structural error. Neder, 527 U.S. at 9 ("An instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence."). Obviously, such reasoning does not preclude a finding of structural error when the omission has a comparatively more dramatic procedural impact. Moreover, in describing why "the omission of an element" would not "always render a trial unfair," the majority emphasized the limited impact of the procedural deprivation in that specific case. Id. at 9 ("Neder was tried before an impartial judge, under the correct standard of proof ...."). Finally, in rebutting Justice Scalia's critique that the court's logic would allow a trial court to direct a verdict against a defendant in a criminal case, an event characterized as structural error in Rose, the majority expressly limited its ruling allowing harmless error review to "the narrow class of cases like the present one." Id., 527 U.S. at 17 n. 2 (emphasis added).

Under the Rose analysis approved by the Court in Neder, the error in this case simply does not fall into the "narrow class of cases" addressed by Neder. Id. As discussed, Resendis-Felix did not receive the benefit of the reasonable doubt standard or the evidentiary and testimonial structure of a trial to challenge the aggravating factors the trial court ultimately found. And, unlike the circumstances in Neder and Ring, Resendis-Felix did not receive any formal notice of those aggravating factors the prosecution would seek to prove. But see United States v. Cotton, 535 U.S. 625, 632-34 (2002) (standing alone, failure to include Apprendi element in indictment not plain error).

Neder may be readily distinguished in one other respect as well. Resendis-Felix was not merely deprived of a jury trial on one element of an allegation that was otherwise proven to the jury as to all its other elements (the scenario in Neder). Rather, he was deprived of a jury trial as to each of the four aggravating factors found - as well as all of the potential subparts of each aggravating factor. In short, Resendis-Felix lost his right to a jury trial not merely as to one uncontested component of an offense otherwise proven in all other respects, but rather, as to the totality of the grounds for aggravating his sentence beyond the presumptive sentence. For this reason, a finding of structural error here would not require a new trial focusing primarily on already "contested issues on which the jury was properly instructed" during the first trial. Neder, 527 U.S. at 15. Rather, any such trial would focus exclusively on contesting issues that Resendis-Felix never had an opportunity to litigate in a trial forum.

Whether or not one agrees with the analysis, it does not invoke "the fact of a prior decision" exception to thoughtfulness.

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