Tuesday, April 26, 2005

Booker does speak to the States

I wrote last week in this post that at least the Tennessee Supreme Court in Gomez has misunderstood Booker and that the Blakely oral arguments in California indicated a majority of the California Supreme Court (all justices except one, it seemed to me) appeared ready to come to the same misunderstanding. At first glance, neither Booker majority opinion, properly understood, would appear to have much to say about state sentencing regimes. In fact, I don't think think that Justice Stevens' majority opinion does have much application to state sentencing; but his dissenting opinion does. The Washington Supreme Court in Hughes picked up with a fine eye a footnore in Justice Breyer's remedial opinion that could be crucial for state sentencing--at least for the sentencing cases that come to the state appellate courts before state legislatures, such as Indiana's, Booker-ize the their sentencing statutes.

Justice Stevens' dissenting opinion in Booker answers a question that Mike Limrick and I have disagreed about since just about the Big Bang on June 24th of last year. The question is what use may aggravating circumstances subject to Blakely be put if not placed before a jury and proven beyond a reasonable doubt? My position has been that they must be put aside, and then the judge must weigh any remaining aggravating and mitigating circumstances without taking them into account at all, even in imposing a presumptive sentence.

In this earlier post, for example, commenting on Merlington and Francis, two of three cases since Blakely in which the Indiana Supreme Court has reduced enhanced sentences to the presumptive (see also this earlier post Ruiz, the third of the set), I questioned whether the Indiana Supreme Court could avoid Blakely by revising sentences to the presumptive. Under Indiana state law, the existence of sufficient mitigating circumstances, especially in the absence of any aggravating circumstances, seems to create an entitlement to a sentence less than the presumptive. There are at least two cases from the Court of Appeals that reverse presumptive sentences where there were no aggravating circumstances, and there was one of the two 800-pound gorilla mitigators: absence of criminal history and a finding of guilty but mentally ill. The two cases are: Laughner v. State, 769 N.E.2d 1147, 1162 (Ind. Ct. App. 2002) ("The mitigating circumstances found by the trial court are both undisputed and supported by the record, and no permissible aggravators were found that may serve to offset those mitigators. Accordingly, we remand to the trial court for resentencing of Laughner to less than the presumptive sentence."); and Biehl v. State, 738 N.E.2d 337 (Ind. Ct. App. 2000) (where there were no aggravating circumsances and significant mitigating circumsances in the form of mental illness and no criminal history, a presumptive sentence was manifestly unreasonable), trans. denied. about

Mike Limrick's position was that a presumptive sentence is where Blakely stops, i.e., where there is no requirement that a jury determine any fact. think the following passage from Justice Stevens' dissenting Booker opinion about overlapping sentencing ranges (probably) resolves the question in Mike Limrick's favor:

Consider, for instance, a case in which the defendant's initial sentencing range under the Guidelines is 130-to-162 months, calculated by combining a base offense level of 28 and a criminal history category of V. See USSG ch. 5, pt. A (Table). Depending upon the particular offense, the sentencing judge may use her discretion to select any sentence within this range, even if her selection relies upon factual determinations beyond the facts found by the jury. If the defendant described above also possessed a firearm, the Guidelines would direct the judge to apply a two-level enhancement under §2D1.1, which would raise the defendant's total offense level from 28 to 30. That, in turn, would raise the defendant's eligible sentencing range to 151-to-188 months. That act of judicial factfinding would comply with the Guidelines and the Sixth Amendment so long as the sentencing judge then selected a sentence between 151-to-162 months--the lower number (151) being the bottom of offense level 30 and the higher number (162) being the maximum sentence under level 28, which is the upper limit of the range supported by the jury findings alone.

(Emphasis added.) I do not think that there is anyone on the Court that would disagree with Justice Stevens about this--which is one reason, I expect, he chose this particular method of demonstrating that the Guidelines were not facially unconstitutional.

To spell this out in terms of Indiana sentencing, the Smylie court has already said that the presumptive sentence is the equivalent of the Guidelines' "initial sentencing range" as used by Justice Stevens in the passage above. If a crime has been committed in a particularly cruel way (the equivalent of Stevens' gun), Blakely and the Sixth Amendment do not prohibit a judge from finding and weighing the cruelty against any mitigating circumstance in imposing the presumptive sentence.

I do not think the result is any different for the other states affected by Blakely. In imposing the middle term, for example, a California trial court may consider anything without resort to a jury. (I guess that will be true whatever the California Supreme Court says about Blakely's applicability.)

So it would appear that the Indiana Supreme Court's reductions to presumptive sentences in Merlington, Francis, and Ruiz achieved what, I presume, the court intended: a total escape from Blakely. So also with its remand for the imposition of presumptive sentences, albethey consecutive, in Payne, one of the NFP decisions we know about. (See this earlier post about Payne and the nether world of the NFP.)

The second Booker insight relevant to state sentencing was picked up by the Washington Supreme Court in Hughes. Hughes, not surprisingly, concludes that Blakely is applicable to Washington's sentencing guidelines. More surprisingly, it concludes that Blakely sixth amendment error is structural and can therefore never be harmless.

The court's entire discussion of why this is so is well worth reading. (Part III C of the opinion.) In particular, taking flight from a Ninth Circuit Apprendi opinion that predated Blakely, the court describes pretty accurately why Neder and Cotton plain error analysis is apples, and Sullivan v. Louisiana structural error v. Chapman harmless error is oranges. (An insight I am very grateful for, having missed it meself, for example, in this earlier post, where I said that as between Neder and Sullivan, something would have to give.) Simply put, if I understand Hughes correctly, plain error analysis is procedural: it is about whether an error gets reviewed at all. The argument about whether Chapman or Sullivan applies is about what to do with an error that gets review.

The Washington Supreme Court very cleverly picked up on a small snippet of Justice Breyer's remedial opinion:

[I]f anything, the majority opinion written by Justice Breyer implied that harmless error analysis would not be applicable to such Sixth Amendment violations: "{I}n cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine." Booker, 125 S. Ct. at 769.

The implication understood by the Washington Supreme Court, I think, is that where there is a sixth amendment violation, harmless-error will not be applicable. There remains in this snippet from Booker an ambiguity, I think, that makes the implication perhaps more of an inference: it is not clear (to me anyway) whether Justice Breyer means Chapman harmless-error doctrine or harmless-error doctrine arising out of Federal Rule of Criminal Procedure 52(a). If there is no constitutional violation, presumably he would mean the latter.

After Smylie, the Neder argument is over in Indiana. Blakely errors get reviewed normally, whether they were preserved or not. Blakely errors are of the constitutional variety--sixth and / or fourteenth amendment. Maybe the Court of Appeals could start a discussion about whether the errors are of the Chapman or Sullivan variety instead of continuing the raw disagreement, sometimes of individual judges with themselves, undiscussed, about whether the errors should be reviewed as constitutional errors or as state-law sentencing errors. (See this post about the current three approaches to Blakely errors in Indiana. I said there and have said elsewhere, in the context of the decisions coming from the Court of Appeals, that Chapman harmless-error analysis is correct. That is true, as between the other things the Court of Appeals is doing. But I really think Blakely errors have to be structural if, as the Washington Supreme Court did, one takes Sullivan seriously.)

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