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A recent Ohio Supreme Court ruling makes Ohio one of about a dozen states to find that its state sentencing scheme does not conform to a U.S. Supreme Court ruling requiring juries-and not judges-to determine facts that add to the recommended length of prison sentences. Ohio was one of about 15 states expected to be affected by the high court’s Blakely v. Washington decision, 542 U.S. 296 (2004). However, three of those states-Tennessee, New Mexico and California-have said their state sentencing schemes don’t require fixing. The U.S. Supreme Court has accepted a California case, which will review the state’s stance. Additionally, some states’ attempts to conform to Blakely will most likely require courts to determine if their fixes pass constitutional muster. Douglas Berman, an Ohio State University Michael E. Moritz College of Law professor, said that there are many second-generation Blakely issues that the high court will eventually have to resolve. “The U.S. Supreme Court didn’t say what other constitutional rights travel with the rights it defined in Blakely,” said Berman, who writes a blog on sentencing law and policy. For example, he noted that North Carolina’s new sentencing scheme doesn’t require factual elements that can enhance a sentence to be included in an indictment, but instead has notice requirements that kick in 30 days before trial. “We don’t know yet if that passes constitutional muster,” he said. A first from Ohio The Ohio Supreme Court said that trial courts now have full discretion to impose a prison sentence within the statutory range. That means that judges are no longer required to make factual findings or give their reasons for imposing maximum, consecutive or more than the minimum sentences. The decision frees judges to raise or lower the sentences of hundreds of people whose cases are still on appeal. State v. Foster, 2006 Ohio 856; State v. Mathis, 2006 Ohio 855. Ohio is the first state to say that Blakely rights apply to fact-finding at sentencing that can increase a defendant’s sentence, said Berman. “It is the first state to find that Blakely rights apply to judicial findings that support a consecutive instead of a concurrent sentence,” he said. The Ohio opinion stands out because it allows judges so much leeway. Many state high courts that found that the Blakely decision applied to their states ordered judges to sentence defendants in the presumptive range. That was usually in the midrange. In Ohio, the presumptive range was the lowest possible sentence, and judges had to make factual findings in order to enhance sentences beyond that. None of the affected states has made identical fixes, in part because their original sentencing schemes differed. Some courts have required the impaneling of juries for re-sentencing purposes, while others severed the aberrant statutory provisions-the path Ohio took. And like California, a few states have found no Blakely violations at all when a judge increased a sentence above the presumptive term. On Feb. 1, the U.S. Supreme granted certiorari in one such case. Cunningham v. California, No. 05-6551. In Ohio, defense counsel had hoped that the state’s high court would order that people be sentenced in the presumptive range, the minimum sentence. Prosecutors got-for the moment-what they wanted. The lawyer who took Blakely up to the U.S. Supreme Court looks at the bigger picture. “At least the court got Blakely right,” said Jeffrey Fisher of Seattle’s Davis Wright Tremaine. “It’s an interim solution in a state where upward departures happen very often. What’s most important is that they invited the legislature to Blakelyize their system-to have juries determine the facts that would enhance sentences.” The invitation was deferential. “It may well be that in the future the Ohio Criminal Sentencing Commission may recommend Blakely-compliant statutory modifications to the General Assembly that will counteract these, among other, concerns,” the Ohio court said. Minnesota-where the law now dictates that a jury decide facts that could enhance a sentence-provides a window into other issues state high courts will likely address. After Blakely, some Minnesota judges re-sentenced defendants to the midrange presumptive term, while others impaneled juries. [NLJ, 9-23-05].

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