Blakely Representation

In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), the United States Supreme Court differentiated between two sentences. One is the sentence presumptively authorized by the legislature for conviction for a particular offense. The other is any increase in that sentence or in the sentencing range. The U.S. Supreme Court held that any fact which was essential to an increase in the sentence or in the sentencing range either (1) had to be found beyond a reasonable doubt by a jury, or (2) admitted by the defendant at or before sentencing. Thus Blakely involved two issues: (1) a right to a higher standard of proof for aggravating factors (from a preponderance of the evidence to beyond a reasonable doubt) and a right to a jury trial on aggravating factors.

Recent developments in published case law dealing with the new rule of constitutional law announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000) and clarified in Blakely have not been particularly favorable and there still remain conflicting issues that have not yet been resolved. The final answers on some issues already "settled" by the Arizona Supreme Court are not truly "final," because the ultimate issue is one of federal constitutional law -- and the federal courts have not yet had an opportunity to affirm or overrule most of the critical issues.

It would require many paragraphs of highly detailed and highly technical writing to address all of the many issues that arise from Apprendi-Blakely, but a few matters of broad concern deserve comment.

One Blakely-Exempt Aggravating Factor

Arizona continues to hold that there is one aggravating factor -- one or more prior convictions -- which is exempt from the constraints of Blakely. Prior to Apprendi and Blakely, the United States Supreme Court issued an opinion whichheld that the fact of a prior conviction could be determined by a judge rather than a jury. That decision was Almendarez-Torres v. United States, 523 U.S. 224 (1998). The Almendarez-Torres court indicated that recidivism did not relate to commission of the crime and therefore was not an element of a greater offense. Apprendi dodged the issue because the defendant in Apprendi did not challenge the fact of his prior convictions. Blakely did not address the issue because prior convictions were not cited as aggravating factors by the sentencing court in the Blakely case.

There are reasonable arguments why prior convictions should not be exempt from the constraints of Blakely, particularly in certain cases, but this issue ultimately will have to be resolved by the United States Supreme Court in a new case, and no one can say when that will occur or what the outcome will be.

Multiple Aggravating Factors

Recent decisions involving Blakely issues include the Arizona Supreme Court's decision in State v. Martinez, ___ Ariz. ___, 115 P.3d 618, 456 Ariz.Adv.Rep.6 (2005). Martinez holds that a sentencing judge may find and consider additional aggravating factors after one aggravating factor has been found in compliance with Blakely (that is, the aggravating factor has been found to be true beyond a reasonable doubt by the jury, is inherent in the jury's verdict, or has been admitted by the defendant). Martinez also holds that prior convictions -- currently exempt from Blakely constraints -- constitute an acceptable first aggravating factor.

The holding of Martinez has neither been approved nor rejected by the United States Supreme Court. There are cases that are working their way through the federal court system on this very issue. The logic of the Arizona Supreme Court decision in Martinez is that a single Blakely-compliant or Blakely-exempt aggravating factor permits aggravated sentencing all by itself, and therefore any other or additional aggravating factors need not comply with the constitutitonal requirements imposed by Blakely. This analysis ignores the substantive question of which aggravating factor or factors were actually used by the sentencing judge in determining that an aggravated sentence was appropriate and to what degree the sentence should be aggravated.

The arguments opposed to the ruling in Martinez are varied, but primarily consist of the following. Under Martinez, the specific aggravating factor which a court might use as a determining factor in imposing an aggravated sentence might be some alleged "fact" which was not found beyond a reasonable doubt or admitted by the defendant, while the aggravating factor that supposedly "qualified" the defendant for aggravated sentencing was not considered particularly important. This would be a case of the unconstitutional tail wagging the constitutional dog (that is, a non-Blakely-compliant aggravating factor determining the sentence). Such an approach is indicative of an intent to evade the very constitutional problems that concerned the Blakely court to begin with -- that of the government increasing the defendant's imprisonment based on factors not determined in comliance with constitutional procedures. The logic whereby an unused Blakely-compliant factor subjects a defendant to an increase in his sentence while a different factor that was actually used as a basis for the increase need not be Blakely compliant simply confounds reason.

Retroactivity of the Blakely Decision

In State v. Febles, 210 Ariz. 589, 115 P.3d 629 (App. 2005, Div. 1), the Arizona Court of Appeals held that Blakely applies to all convictions not yet final on direct review the day Blakely was decided (June 24, 2004), even if the defendant was sentenced before the decision. Mr. Febles filed a Petition for Review before the Arizona Supreme Court, but that court denied review. It is important to keep in mind that the critical date is not the date of the offense and not the date of the conviction or sentencing, but the date on which a person's direct appeal was "finally decided" within the state court system. "Finally decided" means either (1) the date of the decision from the Court of Appeals (if no appeal was taken to the Arizona Supreme Court) or (2) the date of the decision from the Arizona Suprme Court (if the case was appealed that far).

In Colorado, Blakely is retroactive to June 26, 2000. See People v. Johnson, ___ P. 3d ___ (Colo.App., 2005) (No. 03CA2339) (holding that Blakely is retroactive to Apprendi)

Finanity of Appeal for Purposes of Blakely

IF YOU WENT TO TRIAL:

In Arizona, all persons who go to trial have a right to a direct appeal. The direct appeal is filed in the Arizona Court of Appeals. If the appeal is denied, the person has a right to file a Petition for Review before the Arizona Supreme Court. When the Arizona Supreme Court issues a decision on that Petition for Review, the case is considered "final" for purposes of federal law.

IF YOU PLED GUILTY:

For persons who accepted a plea agreement rather than going to trial, the first Petition for Post Conviction Relief (also called "PCR" or "Rule 32") is the functional equivalent of a direct appeal. A PCR is filed in the original trial court in which the conviction and sentence occcurred. If the Superior Court denies relief, the person can take a Petition for Review to the Arizona Court of Appeals. If denied, the person can take a Petition for Reivew to the Arizona Supreme Court. When the Arizona Supreme Court issues a decision on that Petition for Review, the case is considered "final" for purposes of federal law.

If the Defendant had a trial and was convicted, and then filed a PCR either at the same time as the Direct Appeal or after the Direct Appeal, that PCR is NOT the functional equivalent of a direct appeal. The critical date is the date that the first appeal as of right is final, which means the direct appeal for a trial defendant, and means the first PCR for a pleading defendant.

The Argument for "Full Retroactivity"

Despite the fact that Febles holds that Blakely does not apply to any case that was final before June 24, 2004, it is important to make a distinction between the jury trial aspect of Apprendi and Blakely (the right to a jury trial on aggravating factors) and the beyond-a-reasonable-doubt standard of proof aspect of those cases.

There is a line of cases from the U.S. Supreme Court which hold that increases in the standard of proof are to be applied retroactively, even to cases that were final prior to the change in the standard of proof. One might refer to this as "full retroactivity," to distinguish it from the more limited retroactivity announced in Febles. Once again, there are cases from around the country which are working their way through the federal court system on their way to the U.S. Supreme Court. The U.S. Supreme Court will make the final decision as to whether this aspect of Apprendi and Blakely is to be afforded full retroactive applications.

There are complicated issues involved in a Blakely analysis. You should consult with an experienced attorney to determine if Blakely might apply to a case you are interested in. This law firm has extensive experience in the Blakely issues, as is evident by the information/analysis provided above.

Don't Wait to Start Your Case

Many cases have extenuating circumstances that need to be addressed in a timely matter for the best case results.

*Name:
*Phone:
*E-mail:
Legal Issue: