There have been two Blakely cases in Indiana today, but before I get to them (probably tomorrow), a decision from the Florida Supreme Court about Apprendi's retroactivity deserves some comment. The case is Hughes v. State (Fla. 4/28/05). (Thanks as always to Doug Berman at Sentencing Law & Policy in this post.) I only want to note for now the essence of the majority opinion's argument about why Apprendi should not be applied retroactively in Florida:
Apprendi affects only the procedure for enhancing the sentence. See United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.), cert. denied, 537 U.S. 939 (2002); see also State v. Tallard, 816 A.2d 977, 981 (N.H. 2003) (“Apprendi altered the procedure under which an enhanced sentence can be imposed. It did not affect the procedure for obtaining an accurate conviction on the underlying offense.”). Thus, Apprendi “does not rise to the level of importance of Winship.”
Slip op. at 14 (emphasis added).
To that passage, I now want to juxtapose a passage from the note in the March issue of the Harvard Law Review arguing for Blakely's full retroactivity:
It could be argued that Apprendi need not apply retroactively because it extends Winship's holding only to "sentencing factors" rather than to "elements" of the crime. But this argument forgets that Apprendi eliminates this distinction for constitutional purposes. Because due process requires that all "facts that expose a defendant to a punishment greater than that otherwise legally proscribed" must be proved beyond a reasonable doubt, it is difficult indeed to argue that punishments imposed in violation of Apprendi's requirement can stand. Because all of these sentences are shrouded by the constitutional doubt that attends a punishment imposed solely on the basis of a preponderance of the evidence, even the strongest interests in finality cannot justify continued imprisonment of these defendants.
Note, Rethinking Retroactivity, 118 Harv. L. Rev. 1642, 1659 (2005) (emphasis added) (footnote omitted).
I think the point is, after both Apprendi and Blakely, sentencing is no longer "just sentencing." The sixth amendment jury trial right may be "procedural"; the fourteenth amendment requirement of proof of the elements beyond a reasonable doubt is something else. (According to the note, by the way, Winship was the last case to be given full retroactivity by the U.S. Supreme Court. That was interesting news to me.)
As I read the Blakely cases here and there, the fourteenth amendment aspects are given little attention; and the issues arising under the Fourteenth Amendment are probably going to have to be dealt with in the second wave of appeals after the remands.
That's not to say that sixth amendment aspects that do get all the attention get the attention they deserve. Just today, one creative panel of the the Indiana Court of Appeals said:
Specifically, Huffman asserts that Blakely requires that he be provided notice of each specific aggravating factor the State intends to introduce.
. . . .
While this argument is creative, we are not persuaded. First, we do not read Blakely to require that a defendant be provided notice of every fact upon which the State may rely to seek an enhanced sentence.
Huffman v. State (Ind. Ct. App. May 2, 2005) (Judges Sullivan, Baily, and Mathias). Juxtapose this with the following snippet from Blakely:
Any evaluation of Apprendi's "fairness" to criminal defendants must compare it with the regime it replaced, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment . . .
(Emphasis added). And with this from Apprendi:
We there noted [in Jones v. United States (1999)] that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id., at 243, n. 6. The Fourteenth Amendment commands the same answer in this case involving a state statute.
(Emphasis added). And, since some judges, including judges on the Indiana Court of Appeals, have been looking to Booker to provide the "context" for Blakely, add this passage from Justice Breyer's remedial opinion:
The Court's constitutional jury trial requirement, however, if patched onto the present Sentencing Act, would move the system backwards in respect both to tried and to plea-bargained cases. In respect to tried cases, it would effectively deprive the judge of the ability to use post-verdict-acquired real-conduct information; it would prohibit the judge from basing a sentence upon any conduct other than the conduct the prosecutor chose to charge; and it would put a defendant to a set of difficult strategic choices as to which prosecutorial claims he would contest.
Yet another imaginative panel of the Court of Appeals had this to say in a footnote (which is the first time an Indiana appellate court has sidled up to the issue of aggravating circumstances as elements and deserves more comment in a separate post):
The concern has been raised that Blakely’s reasoning may eventually require judges to adhere strictly to specifically enumerated aggravating circumstances as provided by statute and prohibit the use of judicially-created aggravating circumstances, on the basis that recognition of an aggravating circumstance after the commission of a crime would violate due process notice guarantees. Blakely itself, however, did not address due process concerns and we decline to read into a prohibition against any use of judicially-created aggravating circumstances.
Young v. State (Ind. Ct. App. May 2, 2005) (Judges Barnes, May, and Darden). Juxtapose the snippets from Booker, Blakley, and Apprendi above.
Note also that Judge Barnes, who wrote Young, was also one of the two Indiana appellate judges to say Booker had "clarified" and "limited" Blakely. See Edwards v. State (Ind. Ct. App. 2/28/05) (Barnes, J., dissenting). Yet in this opinion, right or wrong about the very important result relegated to a footnote, Judge Barnes goes no farther afield than Blakely. (I think even in Blakely relevant "due process concerns" can certainly be found in at least the following: "If there is any difference between bargaining over sentencing factors and bargaining over elements, the latter probably favors the defendant. Every new element that a prosecutor can threaten to charge is also an element that a defendant can threaten to contest at trial and make the prosecutor prove beyond a reasonable doubt." (Emphasis added).)
As I said to Judge Wood in my only oral argument in the Seventh Circuit (and my only oral argument ever): "Your Honor, I'm not making this up."