On the Eve of Booker(?): Did Blakely change anything?

So the smart money seems to be on Booker and Fanfan coming down tomorrow. (See this post on Sentencing Law & Policy.) When the opinions do come down, I am going to be looking hard for is anything the Court says about what Blakely changed, if anything. Whether Blakely has changed anything has important implications for both waiver and retroactivity.

Recall on the one hand, there is Blakely itself, which has that almost chiding remark, "As our precedents make clear . . . ." I think it was only the Kansas Supreme Court and Mike Limrick who publicly, at least, understood what Jones, Apprendi, and Ring made "clear." In her Blakely dissent, Justice O'Connor seems to have understood the implication of "As our precedents make clear . . . .": retroactivity of Blakely to Apprendi, even if only "arguably."

Some courts, though, now confronted with Blakely, may decide latterly that everyone knew or should have know all along what Apprendi meant. The purest expression of this I have seen came in a recent Texas memorandum decision, Turner v. State, Tex.App. Lexis 10673 (Tex. Ct. App. 5th Dist. November 30, 2004) (mem.), in which the court said:

To preserve error for appellate review, a party must make a timely specific objection and obtain an adverse ruling from the trial court. See Tex. R. App. P. 33.1(a)(2); Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984). Appellant argues he was unable to assert this objection because Blakely was not issued until after his trial. However, the rule in Blakely on which appellant relies was stated previously in Apprendi v. New Jersey: "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." 530 U.S. 466, 490 (2000) (quoted by Blakely, 124 S. Ct. at 2536). Accordingly, appellant could have relied on Apprendi in making his objection. Having made no objection, his complaint that the statutes as applied in his case--allowing the court to cumulate his sentences without a decision by the jury--is not preserved for our review. We resolve appellant's first issue against him.

(Emphasis added) (footnote omitted) (parallel citations omitted).

On the other hand, there are the "sea change" courts (Ameline (9th Cir.) (7/21) that see Blakely has having changed a great deal. It is much easier to grant relief under Griffith v. Kentucky in direct appeal cases where there was no Apprendi objection, if Blakely changed a lot, the 11th Circuit's opinion in Levy notwithstanding.

So the courts that say Blakely changed nothing are really the tougher crowd on defendants. While that conclusion may get defendants retroactive application of Blakely to Apprendi--at least in the sense that the Apprendi rule has been the law since Apprendi--almost no one will have made the Apprendi objection. In many cases that will have been because in every Circuit Court of Appeals and many states, like Indiana, Apprendi objections had been foreclosed by controlling precedent.

Interestingly, before Blakely, the Washington Supreme Court had at least once, from my cursory research, applied Apprendi in Blakely-esque fashion: "It is clear under Apprendi the identity of the controlled substance is an element of the offense where it aggravates the maximum sentence with which the court may sentence a defendant. Apprendi, 530 U.S. at 490." State v. Goodman, 83 P.3d 410, 416 (Wash. January 15, 2004). So perhaps it should not be surprising that Blakely raised an Apprendi objection to his sentence, if the objection had not been foreclosed, apparently, by Washington precedent. (The state of the law in Washington at the time of Blakely's sentencing may have been much murkier. A 2002 Washington Court of Appeals Case treats an Apprendi challenge to a sentence enhancement in the more common, pre-Blakely fashion: State v. Shaffer, 55 P.3d 668, 672-73 (Wash. Ct. App. 2002) ("[T]he two year sentence enhancement does not increase the punishment for vehicular homicide beyond the statutory maximum, which is life imprisonment.").)

Blakley World gets much more interesting for defendants, though, if at least some Blakely errors are non-waivable, as the Federal Defender for the Northern District of Texas argued in this Booker / Fanfan amicus brief, which I discussed in this earlier post.