In prior posts, here and here, I mentioned the Oregon Supreme Court's decision in State v. Dilts, decided way back on December 16th. In the first post, I suggested that a Blakely best practice might be to follow the Oregon Supreme Court in not deciding all the theoretical problems that might arise on remand following a Blakely reversal. After reversing Dilts sentence, the Oregon Supreme Court said: "[W]e do not speculate as to the specific positions that the parties may take before the trial court respecting that court's authority in the resentencing proceedings. It is inappropriate to address statutory issues, as well as more fundamental state and federal constitutional issues, relating, inter alia, to indictment, notice, and jury trial until they have been raised before and decided by the trial court."
The entire approach of the Oregon Supreme in reversing Dilts's sentence as well, it seems to me, is extremely important. It is simple and almost mathematically elegant in its avoidance of doctrinal dispute about the meaning of individual sentencing statutes.. The court looked at what the United States Supreme Court did in Blakely and then did the same thing themselves. This should not be surprising, perhaps, because Dilts was remanded to the Oregon Supreme Court for reconsideration in light of Blakely.
The test in Dilts, taken from Blakely, is quite simply: Would a sentence be reversed without judge-made findings? Here is the passage itself from Dilts:
The [Blakely] Court noted that, if the trial court had imposed the 90-month sentence solely on the basis of the plea -- that is, without making the additional finding regarding deliberate cruelty -- then the trial court would have been reversed. Id. at 2538.
. . . .
Here, the presumptive sentence that was based on the facts that were alleged in the indictment and admitted by defendant in his guilty plea was 15 to 18 months' imprisonment, so the "statutory maximum" sentence that the trial court could have imposed without making additional factual findings was 18 months' imprisonment. If the trial court had imposed its sentence of 36 months' imprisonment without finding the additional facts regarding the racial motivation for the assault, then that sentence would have been subject to reversal on appeal.
It is absolutely clear from Indiana case law that a sentence above the presumptive must be supported by the judicial finding of at least one aggravating circumstance to survive an appeal. That really should be the end of the discussion about Blakely's applicability to Indiana's sentencing scheme. Booker has nothing to say about this, in my view, and there is no reason to re-examine Blakely in Indiana because of Booker.
Simple solutions may be for the simple-minded. But I have not been able to find a flaw in the very simple test. Perhaps someone else can and post it in a comment.
In fact, the Oregon Supreme Court got it all right and even provided the major thrust of the severability analysis one might have expected from the U.S. Supreme Court in Booker:
As stated above, we hold in this case only that, under Blakely, the sentencing guidelines were applied unconstitutionally to defendant. We agree with the state that this decision will have a significant impact on criminal sentencing because Blakely also makes it clear that whenever a trial court, in the absence of an effective waiver, imposes a sentence that exceeds the presumptive sentence on the basis of aggravating facts found by the trial court rather than by a jury (other than the fact of a prior conviction), that sentence amounts to an unconstitutional application of the sentencing guidelines.
However, the fact that the sentencing guidelines may be applied unconstitutionally, as they were in this case, does not mean that we must reject the sentencing guidelines themselves as unconstitutional. On the contrary, the Court in Blakely specifically stated that determinate sentencing schemes, like Oregon's sentencing guidelines, are permissible if they are implemented "in a way that respects the Sixth Amendment." 124 S Ct at 2540; see also id. at 2540-41 (rejecting argument that Blakely undermines determinate sentencing and concluding that focus instead is on protecting jury trial right). Because we have not held that a part of the sentencing guidelines is unconstitutional, we can identify no unconstitutional part of the guidelines that might be appropriate to sever. Rather than add to or subtract from the words in the sentencing guidelines, as the state suggests, our holding simply requires Oregon courts to apply the guidelines "in a way that respects the Sixth Amendment." 124 S Ct at 2540.
I think because the Oregon Supreme Court was considering a remand for reconsideration in light of Blakely, it took some special care in its decision. There is no vote line in the on-line opinion, but there don't appear to have been any dissents.
I think any state court that ignores the Dilts test will be at serious risk of a successful cert. petition. Unfortunately, that is also what makes it so likely that state courts will opt to do a Booker themselves. The United States Supreme Court can hardly object to that now.