(Emphasis added.) Chapeau to the Tennessee AG.
Until last week everyone assumed the Tennessee presumptive sentencing scheme violated Blakely, so much so that the governor appointed a commission which recommended a Booker-like advisory sentence fix. Even the Attorney General agreed that the current law was flawed. To the astonishment of all, the Tennessee Supreme Court upheld the constitutionality of the Tennessee sentencing guidelines in State v. Gomez. The majority of the Supreme Court held that, notwithstanding a mandatory, presumptive sentence the discretionary enhancement factors somehow made the statute "advisory" and thus allegedly constitutional. To his credit the Attorney General filed an immediate petition to rehear saying "it is as plain as a pikestaff that a Tennessee judge has no authority to impose a sentence above the presumptive minimum -- the sentence authorized by the jury verdict alone -- unless an enhancement factor is found."
Onions to Indiana's, who almost never concedes anything, and sends his deputies in his stead into the appellate courts to make arguments that would be laughable, except that they take up so much time. (For an example, have a look at the recent oral argument in Armstrong v. State (summary here, argument here with Real Player), in which the deputy argues with a straight face that a plain, uncontradicted holding of the Court of Appeals barring a prosecution may not be relied upon by the public because: 1) it was just a relatively recent holding of an intermediate court; and 2) other jurisdictions come out on the question involved differently; so 3) it should have been "foreseeable" that the statute would apply to the situation. It is worth watching the argument also because the interesting question arises whether one panel of the Court of Appeals is bound by the prior decisions of other panels.)
Seems like the Tennessee AG is interested in something like law instead of just what he can get away with. Maybe he's even trying to save the Tennessee Supreme Court from itself, because the Gomez opinion is an open invitation to cert. The wilfulness of the majority opinion is really quite extraordinary. How many times does one see a state high court recite instances in which it has been reversed by the United States Supreme Court? And the recitation is quite different from Posner's prayer in Booker in which he asks to be speedily reversed if the decision is wrong (which it wasn't). Posner seems to have tried to apply Blakely as it came to him in Booker and felt stuck with the result. I understand the Tennessee Supreme Court's opinion in Gomez to intentionally get it wrong and then dare the litigants to file a cert. petition. If it is not remedied on rehearing, I hope the dare will be taken up.
Gomez is important beyond Tennessee, however. The California Supreme Court heard oral argument in Towne and Black, its two Blakely cases. I have to say that I was surprised to see that all but Justice Kennard (Dutch, I think, from Java) seemed to buy both the irrelevant portion of Stevens' majority opinion in Booker about discretion within the statutory range and the argument that a found fact does not mandate an increased sentence.
The California arguments are here (Windows Media Player) and well worth listening to. When it became clear that the others were not getting it, especially Chief Justice George, Justice Kennard filibustered with long, pro-Blakely-applicability questions.
So Gomez would appear to provide a foundation for future California Supreme Court opinions in Towne and Black saying that Blakely does not apply to California sentencing.
What Indiana, New Jersey, California, and Tennessee all have in common is that the Apprendi-Blakely "statutory range" is a point. This is what the Tennessee Supreme Court did not get and what a majority of the California justices appear not to have gotten.
As an aside, before Smylie, two judges of the Indiana Court of Appeals also thought that Justice Stevens' disquisition about judicial discretion within the statutory range changed something. (Judge Robb, concurring in result in Abney (2/15/05) and Judge Barnes dissenting in Edwards (2/28/05).) Fortunately, Smylie nipped this particular growth in the bud.
The passage from Justice Stevens' majority Booker opinion that is doing all the (unnecessary) damage is the following:
If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. See Apprendi, 530 U. S., at 481; Williams v. New York, 337 U. S. 241, 246 (1949). Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges; it is that circumstance that makes the Court's answer to the second question presented possible. For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.
But the next sentence of Justice Stevens' opinion also does some damage as misunderstood by a number of judges: "The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges." (Footnote omitted). It is from this, I think, that the majority in Gomez and an apparent majority of the California Supreme Court derive the mistaken notion that the question is whether an enhanced sentence is "mandated" by judicially found facts.
These bits from Booker change nothing, if the "statutory range" is a point. And I still say that, with respect to Blakely's applicability to a particular sentencing regime, a court ignores the Dilts test at its peril: Would the sentence be reversed but for the judicially found facts used to enhance the sentence? As the Dilts court itself said, this is the question the Blakely court asked.
Time to go to a vigil protesting an Indiana execution tonight. Bill Benefiel.