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Courts are still reeling from the legal tsunami caused by the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The sea change hit the courts in a series of ground-shaking waves. First, the court decided in Apprendi that New Jersey’s sentencing scheme violated the Sixth Amendment right to a jury trial because it allowed a trial judge to increase a defendant’s sentence beyond the “statutory maximum” without a jury finding on the aggravating factors. Next came Blakely v. Washington, 124 S. Ct. 2531 (2004), in which the court held that the “statutory maximum” that triggers the right to a jury trial is not necessarily the maximum penalty stated in the statute for the crime; rather, it is the “maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S. Ct. at 2537. Finally, the high court this term decided U.S. v. Booker, 125 S. Ct. 738 (2005). Booker called into question determinate sentencing schemes and specifically held that it is unconstitutional to use the Federal Sentencing Guidelines as anything other than advisory in federal sentencing decisions. Impact of three rulings ripples through state courts The impact of these three decisions is still rippling through the state courts. After Blakely and Booker, state courts have been left to determine what effect the court’s interpretation of the Sixth Amendment has on their sentencing schemes. Although the process is far from complete, it may be helpful to examine how these state courts have been interpreting their own sentencing schemes in the post-Booker era. For example, in People v. Black, 2005 Cal. Lexis 6566 (June 20, 2005), the California Supreme Court decided that the California sentencing scheme survives the changes brought on by Blakely and Booker. California, like many other states, uses a determinate sentencing law. Under that law, the judge has the discretion to select the upper, middle or low term in sentencing a defendant. In order to select the high term, the court must identify aggravating factors, such as the degree of cruelty displayed by the defendant; the victim’s vulnerability; the defendant’s use of a weapon or attempt to obstruct justice, prior criminal acts and abuse of positions of trust; and other similar factors. Under California law, the judge, not the jury, makes the finding that there are aggravating factors supporting the high term sentence. In Black, the defendant challenged his sentence for sexual abuse of a child. At trial, the prosecution presented evidence that the defendant repeatedly had sexual intercourse with his 8-year-old stepdaughter. The offense of continuous sexual abuse of a child is punishable by a term of six, 12 or 16 years’ imprisonment. Calif. Penal Code � 288.5. The court sentenced the defendant to the upper term of 16 years for that offense, selecting the high term based on the aggravating circumstances related to the nature and seriousness of the crime. The court also noted that the victim was particularly vulnerable: Black had abused a position of trust and confidence, and had inflicted emotional and physical injuries on the victim. Under another provision of California law, the court also imposed two indeterminate terms of 15 years to life on separate lewd-conduct counts that had been filed against the defendant. After Black was convicted on these charges, the court ordered that he serve the additional terms consecutively. Black challenged his sentence under Blakely and Booker. He contended that the state’s sentencing procedure is unconstitutional because it does not provide the defendant with a jury trial on the aggravating factors relied upon by the judge in imposing an upper- term sentence or consecutive sentences. The California Supreme Court rejected Black’s challenge and upheld the state sentencing scheme. For several reasons, it held that allowing the judge instead of the jury to determine whether there are aggravating factors justifying a high term does not undermine a defendant’s Sixth Amendment right. First, the court noted that California’s move to determinate sentencing in 1977 was designed to reduce, not increase, the length of potential sentences. Importantly, California did not convert elements of a crime into sentencing factors. Jurors must still decide the key elements of an offense. Second, in structuring the sentencing scheme, the legislature did not restrict the facts that could be used to select a high term at sentencing. The trial judge can look at a wide variety of factors related to the circumstances of the crime. Finally, and most importantly, California’s overall sentencing scheme expressly provides for jury verdicts on “sentencing enhancements” that significantly aggravate a defendant’s sentence. The court also held that Blakely did not bar the California system of allowing the judge to decide when sentences will run consecutively. The jury’s verdict authorizes the statutory maximum sentence for each offense; permitting a judge to decide between concurrent and consecutive sentences does not undermine the jury’s role in the case. One justice, Joyce Kennard, dissented. Although she agreed that Blakely and Booker do not limit the power of judges to determine whether a sentence should run consecutively, she took the position that judges should not be able to decide whether there are aggravating facts justifying an upper term. Other than aggravating factors relating to a defendant’s prior convictions, Kennard read Blakely and Booker as requiring a jury verdict on those issues. California is not the only state that has had to confront the constitutionality of its sentencing scheme in light of the U.S. Supreme Court’s recent decisions. In People v. Lopez, 2005 Colo. Lexis 504 (May 23, 2005), the Colorado Supreme Court rejected a general challenge to Colorado’s entire sentencing scheme. It noted that under Blakely, there are four kinds of acts that can lead to an aggravated sentence: (1) facts found by a jury beyond a reasonable doubt; (2) facts admitted by the defendant; (3) facts found by a judge after the defendant stipulates to judicial fact-finding for sentencing purposes; and (4) facts regarding prior convictions. To the extent that Lopez’s sentence was based upon facts relating to his prior conviction that were discussed at his plea, the trial court had free rein to impose the higher sentence. The Colorado Supreme Court referred to other courts that have been troubled by their sentencing schemes. For example, in Arizona, the court found that a sentence imposed beyond the presumptive range and in the “super-aggravated” range based on facts found by a judge alone violate Blakely. See State v. Brown, 99 P.3d 15 (Ariz. 2004). Likewise, in Indiana, the court found that the mandatory aggravation of a sentence by the judge alone is unconstitutional and it therefore excised portions of the sentencing statute. See Smylie v. State, 823 N.E.2d 679 (Ind. 2005). It refused, however, to hold that aggravating factors that support consecutive sentences must be found by the jury. See Sowders v. Indiana, 2005 Ind. Lexis 538 (June 16, 2005), citing, Smylie, 823 N.E.2d at 686. The Minnesota, Oregon and Washington systems have faced similar challenges. See State v. Shattuck, 689 N.W.2d 785 (Minn. 2004) (Minnesota statute requires imposition of presumptive sentence unless court finds “aggravating factors”); State v. Dilts, 337 Ore. 645 (Ore. 2004) (Oregon statute states that “the sentencing judge shall impose the presumptive sentence . . . unless the judge finds substantial and compelling reasons to impose a departure”); State v. Hughes, 2005 WL 851137 *5 (Wash. April 14, 2005) (Washington statute provides matrix for determination of sentence absent judge finding of “substantial and compelling reasons”). Some states unwilling to invalidate their statutes Although many states have statutes that are vulnerable to constitutional challenge, several of them, such as Oregon, Washington and Arizona, have not been willing to invalidate their statutes, but focus on whether the particular sentence in that case needs to be vacated. So long as the judge used permissible factors to enhance the sentence, the court did not have to strike down the entire sentencing scheme. Some jurisdictions go one step further. The Maine, Colorado, Indiana and Arizona high courts have held that even when a sentence is unconstitutional, the courts have the power to modify the state’s sentencing procedures to make their sentences constitutionally viable by allowing for jury findings on aggravating sentencing factors. See, e.g., Maine v. Scholfield, 2005 Me. 82 *P39 (June 29, 2005). However, the Washington and Ohio supreme courts have rejected the argument that they may impose a system of jury sentencing. See Hughes, supra; State ex re. Mason v. Griffin, 819 N.E.2d 644, 647 (Ohio 2004). States have a wide range of sentencing schemes. Most have withstood systemic attack. Those best situated to weather the storm are states that use their sentencing guidelines as only advisory. As in Booker, the voluntary and nonbinding nature of sentencing guidelines exempts the sentences from the Blakely requirement that the jury determine the critical facts the judge will use to decide on the proper sentence. Indeterminate sentencing systems are unaffected by the holding in Blakely. See, e.g., State v. Stover, 104 P.3d 969 (Idaho 2005). See also Shabazz v. Delaware, 2005 Del. Lexis 221 (June 14, 2005) (unpublished). The aftershocks from Blakely and Booker continue. Even in those states where the sentencing schemes have survived, lawyers keep flooding the courts with challenges to individual sentences. Just offshore, dissenting judges stand ready to broadly interpret Blakely by striking down sentencing schemes that put more power in the hands of judges than those of the legislatures and juries. See, e.g., People v. Rivera, 2005 N.Y. Lexis 1214 (June 9, 2005) (unpublished).

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