Doug Berman says that the case "may dovetail with some of the issues that were debated in Burton, the Blakely retroactivity case now awaiting a decision from the Supreme Court." I'd say more than "dovetail." In the Burton oral argument, Jeff Fisher spent a great deal of his time answering questions about consecutive sentencing in Washington. He fends off Justices Souter, Breyer, and Stevens on this issue in pages 4-9 of the transcript. And then he has to deal with Chief Justice Roberts' question beginning on page 9:
CHIEF JUSTICE ROBERTS: I'm not sure I understand that. I mean, we have not held, for example, that the fact of a prior conviction is something that has to be submitted to a jury under Blakely. Why, if you're determining that sentences run consecutively, isn't that just the same as looking at a simultaneous conviction and saying they're going to run consecutively?At page 35, the State argues:
MR. FISHER: Under some State systems that might be the case, Mr. Chief Justice. However, in Washington the way that the code works is that judges are directed that for multiple crimes the sentences shall run consecutively.
CHIEF JUSTICE ROBERTS: So you'd have --
MR. FISHER: Unless they make the exact kind of extra finding, and it refers them to the precise same statute that was at issue in Blakely itself.
CHIEF JUSTICE ROBERTS: And you're saying that that extra finding can't simply be that this is a conviction for a particular serious crime that's going to go unpunished otherwise?
MR. FISHER: That's right.
CHIEF JUSTICE ROBERTS: So under this system if you had a regime where if you're convicted of murder
and you've been convicted of rape before that, you get an enhanced sentence beyond the normal murder sentence, that would not contravene Blakely. But if you're convicted at the same time for rape and murder and those two sentences run consecutively, you say that that does violate Blakely.
MR. FISHER: If the judge needs to make an extra finding beyond the elements of either of those two
crimes to run them consecutively, then it would violate Blakely.
THE COURT: But we've never held that? We've never held that consecutive -- that the treatment of sentences as concurrent or consecutive is covered by Blakely?
MR. FISHER: You haven't had a case in the Apprendi-Blakely line of cases dealing with consecutive sentences. But what you've done is laid down a rule from the very State that we're dealing with here that says that if the judge needs to make an extra finding beyond the elements of the crime for conviction and beyond the facts encompassed in the jury's finding of guilt for those crimes, then those findings need to be proved to a jury beyond a reasonable doubt. That's why in this case that line, that rule, is triggered.
MR. COLLINS: So I just briefly want to go, Justice Souter, to where you started about the consecutive sentence issue. We believe that consecutive sentence is quite different than, from what exists in Blakely and that, in fact, there aren't really additional findings of fact.Whatever other problems Burton may have--and there are a number--Van Delft directly resolves this particular dispute. (Fisher was correct; and there really should not have been much of a dispute about this. It is a pity that so much argument time was spent on it.)
Of course, the Indiana Supreme Court in Smylie already has held that Blakely does not apply to Indiana's pre-fix consecutive sentencing provisions. Because there was a judicially imposed requirement that consecutive sentences be supported by an aggravating circumstance, I was not sure why. I am even less sure now.
I still think that Burton, despite its problems, is going to be a blockbuster. Why else grant cert in an unpublished 9th Circuit case that affirms the denial of habeas relief? And whatever the result, you have to love Fisher's strategy: Blakely was compelled by Apprendi--indeed, it was no different. You don't like that? O.K., Blakely was so new and fundamental that it should be applied retroactively, not just back to Apprendi, but to the beginning of time.