One Arizona Justice Gets It: Blakely & Unenumerated Aggravators

Long, long ago, when wishing still helped, and Blakely was new and full of promise (as well as threat), I picked up on the astonishing, but correct, observation by the Vera Institute in this September 2004 piece that Blakely should / could mean the end of using aggravating circumstances not specifically defined by a statute. (See this post on aggravating circumstances and common law crimes.) And I included this as one of the 12 questions that I thought Smylie should address. (It didn't.)

I don't believe I have seen the issue discussed in an opinion before.

Well, on December 3rd, the Arizona Supreme Court issued State v. Price, Case No. CR-06-0435-PR. The majority opinion reverses a sentence because of Sixth Amendment problems created by Blakely's application to Arizona's sentencing system.

Justice Hurwitz wrote a concurrence in Price that addresses precisely this issue:

Price raised only Sixth Amendment arguments on appeal and the Court’s opinion thus appropriately turns only on the denial of a right to jury trial. But even when a jury trial is afforded, a serious Fourteenth Amendment due process problem is presented if the “catch-all” is the only factor that makes a defendant eligible for a sentence beyond the presumptive term.

. . . .

A defendant has no notice, in advance of the conduct that exposes him to jeopardy for the “aggravated crime,” of precisely what is proscribed under the critical “catch-all” element. It is as if the criminal code had one punishment for theft, and another for aggravated theft, the former consisting of theft simpliciter and the latter consisting of the elements of the theft plus “anything else the court or the state may someday later find relevant.”

Slip op. at ¶¶26-29. (The Arizona Supreme Court numbers paragraphs, which has to be the future to accomodate web citation.) Because Price did not raise the 14th Amendment Due Process problem, Justice Hurwitz is "content to leave final resolution of this conundrum to another day."

Doug Berman calls the "conundrum" "another tough Blakely nut" in his post on Price. I don't think it is either a conundrum or a tough nut. It's just an issue that no one has raised. The focus has been entirely on Blakely's Sixth Amendment implications. Even Price didn't raise the issue in his appeal. And he obviously had at least one justice waiting to return serve.

With the April 2005 amendments to Indiana's sentencing statutes and their evisceration of Blakely in Indiana well behind now, one might think that this issue is of purely academic interest among Hoosiers. It's just possible, though, that the 14th amendment common law crime claims that were not raised in direct appeals would provide some fertile post-conviction ineffective assistance claims.

Thanks to Doug Berman's work and his Blakely in the States mashup on Sentencing Law & Policy for making it so easy to catch up and keep up.

State's Response to Amicus Brief & Aggs as Els

I have received permission to post the State's response to the Marion County Public Defender Agency's amicus brief in Heath and Smiley. The Acrobat version is here; the Word version is here.

I may have more comments about the State's brief later, but one thing leaps out from this brief that I think is really something new--at least it's an argument that I have not seen before. It is that even after Blakely, aggravating circumstances are not elements or even their functional equivalent because of the particular way Indiana's presumptive sentencing scheme works:

Furthermore, the requirement that aggravating factors be submitted to a jury does not make them “elements” of a substantive offense, although, under the Public Defender’s interpretation of Blakely they are the functional equivalent of elements. Unlike in a guidelines state, where a sentencing factor may have a quasi-elemental effect, in that its presence or absence directly impacts the sentence imposed, in Indiana no particular aggravating circumstance is necessary to support a maximum sentence, even though some aggravating circumstance must exist. The need to submit aggravating factors to a jury, rather than to a judge, does not convert them into elements, thereby creating innumerable new “offenses” based on innumerable combinations of aggravating factors. Even if the aggravating factors were deemed elements, however, this would not result in the creation of common law crimes. The legislature has already set forth the aggravating factors by statute. See Ind. Code § 35-38-1-7.1. It no more creates a common law crime to combine a statutory aggravating factor with a statutory offense than it does to combine the attempt statute or the accomplice liability statute with a statutory offense.

(Emphasis added). I am not sure what to understand from the last sentence. Maybe someone can tell me what that means in a comment. (Sometimes I just look at a sentence and have a brain cramp; and this cramp won't go away.)

Also, the State's argument at least omits mention of § 35-38-1-7.1(d), which permits trial courts to find their own aggravating circumstances not enumerated by statute.

But the argument seems to be that aggravating circumstances are elements, or may be, in guidelines states, because guidelines work by a step function. Each new aggravating circumstance increases the required sentencing range. In Indiana, an aggravating circumstance once found merely moves the permissible range from the fixed presumptive sentence or less, if there are mitigating circumstances, to the presumptive sentence up to the maximum sentence for the offense's class.

A partial answer to the State's very interesting argument is, of course, that Indiana's presumptive sentencing scheme also works by a step function. It is just a single step. Any aggravating circumstance can, as a theoretical matter, authorize a judge to impose the maximum sentence.

That answer is only partial, because it does not meet the State's more central point that each new aggravating circumstance in a guidelines regime usually requires an increased sentence, which is not the case in Indiana. The complete answer to the State's argument may be, not unsurprisingly, in Blakely itself, which I am finding it is always a mistake not to reread when considering any of this. For example, the Court says in Blakely:

Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact. n.8

Footnote 8 says:

Nor does it matter that the judge must, after finding aggravating facts, make a judgment that they present a compelling ground for departure. He cannot make that judgment without finding some facts to support it beyond the bare elements of the offense. Whether the judicially determined facts require a sentence enhancement or merely allow it, the verdict alone does not authorize the sentence.

(Emphasis added). And perhaps the most important sentence on the whole subject aggravating circumstances as elements is the following: "Even a defendant who stands trial may consent to judicial factfinding as to sentence enhancements, which may well be in his interest if relevant evidence would prejudice him at trial." (Emphasis added). From this sentence, it appears to me, that the Court is not contemplating that there will be bifurcated trials with sentencing juries. Rather, aggravating circumstances become treated as elements--indeed, they become elements--and so the facts relevant to proving those aggravating circumstances will always be admissible at a single trial just as are any facts relevant to proving what we have, before Blakely, thought of as elements.

There is also another very good reason, I think, to conclude that the Court is going to treat aggravating circumstances essential to increased punishment as elements. It is United States v. Cotton, which government entities everywhere, including the Indiana Attorney General, are relying upon heavily for their waiver / forfeiture / procedural default arguments. Having failed to raise an Apprendi objection to an indictment that did not include an allegation regarding drug quantity that exposed him to a greatly increased sentence, Cotton complained on appeal that Apprendi, decided after his trial, but while his case was still on direct appeal, required his grand jury indictment to include an allegation regarding drug quantity. Everyone agreed that Apprendi required the allegation regarding drug quantity in the indictment.

As far as I know, the only constitutional requirement regarding the content of a federal grand jury indictment is that it "charge each and every element of an offense." United States v. Standard Brewery, Inc., 251 U.S 210, 220 (1920) (emphasis added). Standard Brewery is an old case, infrequently cited, but I can't find any contrary authority. The only reason I can think of that Apprendi would have required an allegation regarding drug quantity in the circumstances of Cotton is that drug quantity was an essential, constitutionally required element. Perhaps I'm mistaken.

The importance of whether, after Apprendi and Blakely, aggravating circumstances are elements or something else, say, the "functional equivalent" of elements that can be manipulated procedurally, can hardly be overstated. Justice Kennedy in his opinion for the Court in Harris v. United States, 536 U.S. 545, 549 (2002) pointed out why:

Once more we consider the distinction the law has drawn between the elements of a crime and factors that influence a criminal sentence. Legislatures define crimes in terms of the facts that are their essential elements, and constitutional guarantees attach to these facts. In federal prosecutions, "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury" alleging all the elements of the crime. U. S. Const., Amdt. 5; see Hamling v. United States, 418 U. S. 87, 117 (1974). "In all criminal prosecutions," state and federal, "the accused shall enjoy the right to ... trial ... by an impartial jury," U. S. Const., Amdt. 6; see Duncan v. Louisiana, 391 U. S. 145, 149 (1968), at which the government must prove each element beyond a reasonable doubt, see In re Winship, 397 U. S. 358, 364 (1970).

Yet not all facts affecting the defendant's punishment are elements. After the accused is convicted, the judge may impose a sentence within a range provided by statute, basing it on various facts relating to the defendant and the manner in which the offense was committed. Though these facts may have a substantial impact on the sentence, they are not elements, and are thus not subject to the Constitution's indictment, jury, and proof requirements. Some statutes also direct judges to give specific weight to certain facts when choosing the sentence. The statutes do not require these facts, sometimes referred to as sentencing factors, to be alleged in the indictment, submitted to the jury, or established beyond a reasonable doubt.

The importance of the question cannot be overstated, because almost every aspect of the Indiana Supreme Court's decisions in Heath and Smylie will necessarily turn on the answer. And I do mean almost every aspect--from waiver or procedural default to retroactivity and everything in between.

For example, Smylie is a guilty-plea case. If the aggravating circumstances used to enhance his sentence are treated as elements, at least from one perspective, he is no longer appealing his sentence, which he may do, but the voluntariness of his plea, which he may not do. See Robinson v. State, 805 N.E.2d 783, 786 n.2 (Ind. 2004) ("Even though a direct appeal may not be used to allege errors involving a conviction based upon a guilty plea, it may be used to challenge sentencing errors. Johnson v. State, 734 N.E.2d 242, 247 (Ind. 2000); Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind. 1996)." While I do not think it a likely result, I see it as at least possible that Smylie could be dismissed. But such a dismissal would, ironically, be a huge Blakely victory for the defense bar.

In its written argument, the State seems to be conceding, on the one hand, that if Blakely applies to sentencing in Indiana, aggravating circumstances must be alleged in a charging information, submitted to a jury, and proven beyond a reasonable doubt. On the other, the State argues, aggravating circumstances in Indiana, at least, are not elements even after Blakely. I do not know that the State will not win that argument. I do know I am happy not to be the one who will be facing the court on Wednesday defending the position for 40 minutes.

If one were of a mind to boil down the legal argument about aggravating circumstances as elements for Heath and Smylie to a phrase, "Duck Test" comes to mind; and after Blakely, aggravating circumstances, even in light of Indiana's specific sentencing provisions, look like pure mallard to me.

Aggravators & Common Law Crimes

I was gobsmacked some days ago when I read in the Vera Institute September publication about Blakely (here) that the use of aggravating circumstances not specifically enumerated by statute might amount to the creation of a common law crime. (See page 6, first column, right around footnote 30). If aggravating circumstances are to be treated as the functional equivalent of elements, that is absolutely true. This is yet another example of how I keep being surprised by Blakely and my own failure to think through all of its implications.

The Vera Institute's suggestion appears to have received some support yesterday during the government's rebuttal as reported on BlakelyBlog (here):

First, [Clement] noted again that a ruling for the Respondents would mean overturning Mistretta. Such a ruling would mean that the USSC was defining crimes, and under Mistretta that is not what the USSC either can do or in fact does.

It was similarly reported by Doug Berman (here):

[Clement] also ultimately asserted that the key precedent really at stake was Mistretta, as he suggested that Mistretta itself would have to be reversed because the respondent’s argument would essentially mean that the US Sentencing Commission has functionally created elements for thousands of new federal crimes.

In the same post, Professor Berman adds his own answer to Clement's point in rebuttal:

But I think Clement is wrong when saying that extending Blakely to the federal guidelines would essentially overrule Mistretta. This claim is based on the assertion that extending Sixth Amendment rights to guideline factors would turn them into de facto elements. But because such guideline factors require judges to impose longer sentences, they truly are already de facto elements (and this is why Ex Post Facto law limits the application of new guidelines to old cases).

In Indiana, common law crimes were abolished by statute at least as early as 1843. Doe v. Methodist Hosp., 690 N.E.2d 681, 689 (Ind. 1997). Only the General Assembly can define crimes. Indiana Code § 1-1-2-2 provides: "Crimes shall be defined and punishment therefor fixed by statutes of this state and not otherwise."

Whatever the Sentencing Commission does or doesn't do, it looks awfully like Indiana trial judges, when they enhance sentences post-Blakely based on aggravating circumstances unenumerated by statute (see the catch-all aggravator provision in § 35-38-1-7.1(d), which provides, "The criteria listed in subsections (b) and (c) do not limit the matters that the court may consider in determining the sentence") are quite probably doing the forbidden thing of defining crimes. (Recall Justice Scalia's discussion, in response to Breyer's dissent, about 17-element robbery charges in footnote 12.)

If this is analysis is correct, then that is the end of the "especially heinous," "position of trust," and other aggravators of the same, non-statutory ilk. At least until the General Assembly gets (very) busy next year.