Blakely Case No. 1 1/2: Bledsoe v. State.

The Court of Appeals issued a second Blakely opinion today--again on rehearing from an NFP original opinion: Bledsoe v. State. Baker, Friedlander, and Bailey. Here's the passage of consequence:

In this instance, Bledsoe acknowledges that the trial court sentenced him to twelve years—two years beyond the presumptive—for committing the offense of burglary as a class B felony. See footnote Appellant’s Br. on Rehearing p. 7. In so doing, the trial court relied upon Bledsoe’s prior criminal history, noted that his rehabilitation could only occur in a penal institution, that he was on probation at the time of the offense, and that the trial court believed that Bledsoe would continue to engage in criminal activities. Tr. p. 105. As we have established in Carson, prior convictions shown by a defendant’s criminal history are exempt from the Apprendi rule as clarified by Blakely. Carson, slip op. p. 3. Also, just as we observed with respect to the circumstances in Carson, the remaining aggravating circumstances in Bledsoe’s case merely derive from his criminal history. Thus, the Blakely analysis is not implicated. Finally, there is no indication that Bledsoe objected to the contents of the pre-sentence investigation report.

As the passage says, it is simply following Carson, decided back on August 20th. Everything I think I have to say about this particular analysis I said in a long comment on Sentencing Law and Policy here. So there are now six judges of this opinion.

It continues to be amazing to me, however, how far the "fact of a prior conviction" can be taken--especially when it was not the prior conviction here in Bledsoe, apparently, that led to enhancement. All the more reason to object all the time to the "prior conviction" exception to prepare for the possible demise of Almendarez-Torres.

There have been some other developments on the home Blakely front as well. More anon.