Blakely & Retroactivity: Johnson from the Colorado Supreme Court

As linked on Sentencing Law & Policy here, the Colorado Supreme Court has come out with an opinion in People v. Johnson, its preview of Burton, the U.S. Supreme Court case that will deal with Blakely retroactivity. (Link to the Burton opening merits brief also via SLP here.)

I don't know what the law is / was in Colorado, but there is one part of the Colorado Supreme Court's analysis that simply ought / would not fly in Indiana. Recall that there is an initial cut between substantive and procedural rules. New substantive consitutional rules get full retroactive application, including cases on collateral review. If a new rule is procedural, then Teague rears its ugly head. Here's the snippet from Johnson that gets the court past Blakely as announcing a new substantive rule:

In Summerlin, the United States Supreme Court described the difference between substantive and procedural rules. Substantive rules, the Court explained, “alter[] the range of conduct or the class of persons that the law punishes." Summerlin, 542 U.S. at 353. Procedural rules “regulate only the manner of determining the defendant’s culpability." Id. (emphasis in original). Summerlin addressed the retroactivity of Ring v. Arizona, 536 U.S. 584 (2002), which applied Apprendi in holding that a jury, and not a judge, must find the existence of aggravating circumstances that warrant the death penalty. Observing that Ring "did not alter the range of conduct Arizona law subjected to the death penalty" but rather “altered the range of permissible methods for determining whether a defendant’s conduct is punishable by death," the Summerlin Court held that rules like the one announced in Ring "are prototypical procedural rules." Summerlin, 542 U.S. at 353.

Summerlin compels the conclusion that Blakely announced a procedural rule. Like Ring, Blakely did not alter the range of conduct that may be punished, but instead regulated the manner in which such conduct was to be proved. See Summerlin, 542 U.S. at 353.

Slip op. at 8-9.

But if Blakely announced something new at all--and I hold with Mike Limrick that Blakely changed nothing, except perhaps the unwillingness of judges outside of Kansas to recognize Apprendi's clear import--it certainly did alter the range of conduct punishable by Indiana. And it did so drastically. Because "sentencing factors" are to be treated as traditional elements, the whole standard smorgasbord of non-statutory aggravating factors became off-limits in Indiana after Blakely. The use of non-statutory aggravators, when treated as elements, is nothing more than the prohibited judicial creation of common law crimes.

In the Blakely litigation in Indiana, this aspect of Blakely has arisen only once, as far as I know. It was in a brief interchange in the Smylie oral argument. Justice Sullivan asked if Blakely forbids the use of non-statutory aggravators at all. The answer was, "Yes." The issue and the argument then went walkabout--beyond Indiana apparently.

I have no idea why this aspect of Blakely never seems to have been raised in the cases. In case after case, the Court of Appeals finds some reason that the use of a non-statutory aggravator at sentencing was just fine. But it should not matter what a defendant admited or waived for Blakely purposes, if the admission or waiver was not related to a statutory aggravator.

Not quite a random example of what I mean comes in this less than edifying snippet from Frye v. State, about which I posted in a different context here:

The State filed notice of the aggravating factors they would be presenting for consideration by the trial court in sentencing Frye. The aggravating factors submitted by the State include Frye's criminal or delinquent activity, the nature and circumstances of the crime committed, Frye's character and a violation of a no contact order as well as the high risk that Frye will commit another crime, and that Frye was in need of correctional and rehabilitative treatment that can be best provided at a penal facility.

During sentencing the trial court referred to two aggravating factors not specifically mentioned in the State's notice. One was that there were two guns used by Frye, and that the place of occurance was, in fact, Royal's home.

Two reasons weigh heavily against Frye's argument on this issue. One is that he specifically waived a jury that would have considered his Blakely rights. The defendant must express his personal desire to waive a jury trial and such personal desire must be apparent from the court's record, whether in the form of a written waiver or a colloquy in open court. Jones v. State, 810 N.E.2d 777, 779 (Ind. Ct. App. 2004). After an explanation by the trial judge, Frye expressly, on the record, waived a jury.

The other is that this court has observed that Blakely need not be read 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, 825 N.E.2d 1274, 1276 (Ind. Ct. App. 2005).

(Footnote omitted).

The one thing that Frye seems to have gotten right is that Huffman merely made the observation: "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." This unsupported "observation," written by Judge Sullivan, who is usually quite careful, would seem to fly in the face of the now familiar language from Apprendi and Blakely--going all the way back to Jones, actually--laid out as a rule: "[a]ny 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. And the Huffman observation seems quite hollow indeed in light of the following from Blakely:

This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the "truth of every accusation" against a defendant "should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours," 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that "an accusation which lacks any particular fact which the law makes essential to the punishment is ... no accusation within the requirements of the common law, and it is no accusation in reason," 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872).

(Footnote omitted).

But I digress. The bold portions in the excerpt from Frye above set out six non-statutory aggravators--and two of them were not charged--so the Huffman digression was not entirely digressive. The use of these non-statutory aggravating circumstances, regardless of waiver, is simply not permissible, because to use them is, after Apprendi, Blakely, and Recuenco, to create common law crimes with the bolded facts as judicially created elements.

The use as aggravators of these facts and others like them was permissible--and usual--before Blakely. After Blakely, and for crimes committed before April 25, 2005, when the General Assembly unanimously adopted Indiana's Blakely statutory fix, these sentencing factors / elements no longer could increase punishment.

And after Recuenco, there cannot be much doubt about this aspect of Blakely: sentencing factors are to be treated as traditional elements. From Recuenco:

Our decision in Apprendi makes clear that "[a]ny possible distinction between an 'element' of a felony offense and a 'sentencing factor' was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation's founding." 530 U. S., at 478 (footnote omitted). Accordingly, we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt. Id., at 483-484. The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of "armed with a firearm" to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.

The only dodge I can think of is some distinction between treating elements and sentencing factors the same for Sixth, but not Fourteenth Amendment purposes. That would be an artful dodge indeed.

I do not know what it might portend for Burton, but it is very interesting to me that the snippet from Recuenco above relies entirely on Apprendi. That makes some sense, because the Court is saying that Recuenco's case is indistinguishable from Neder. But the implication would seem to be that Blakely changed nothing of the Apprendi analysis.

Given the uniformity with which all the courts have rejected retroactivity claims for Blakely, are we about to have another Blakely moment with Burton? That is, will the SCOTUS decision in Burton do what Blakely at least arguably did: explain the obvious to the nation's judges, who have all gotten it "wrong"? (And don't forget that Burton involves consecutive sentences too.)

And a final question: might Blakely retroactivity, to the extent it depends on Blakely having announced a new substantive rule, depend upon the law of the jurisdiction in which retroactivity is sought?