Blakely v. Washington
U.S. Supreme Court
By Senior Attorney J. Phillip Griffin
On June 24, 2004, the United States Supreme Court announced its decision in Blakely v. Washington (No. 02-1632), a case that will have far-reaching implications for the way criminal defendants are sentenced in North Carolina. This article will review the facts and ruling in that decision, explore its application to North Carolina sentencing law, and speculate on how it will be applied in this state.
The Blakely Case
Ralph Blakely was originally charged with first degree kidnapping. He entered into a plea bargain in which he pled guilty to second degree kidnapping involving domestic violence and the use of a firearm. The plea bargain left the sentence up to the judge.
Under Washington law, second degree kidnapping is a class B felony with a maximum sentence of ten years. However, the sentencing law further provided that the "standard range" for sentencing for second degree kidnapping with a firearm is 49-53 months. The judge may impose a longer sentence only upon finding additional, aggravating factors. In Blakely's case, following a hearing, the judge found the aggravating factor of deliberate cruelty, and imposed a sentence of 90 months. Blakely appealed his sentence, arguing that the judge increased his sentence based upon facts Blakely had not admitted and which had not been found by a jury. This, Blakely argued, violated his right under the Sixth Amendment to a trial by jury. The Washington State appellate courts upheld the trial court decision and Blakely petitioned the United States Supreme Court for review.
By a five to four vote, the Supreme Court agreed with Blakely. The opinion for the Court, written by Justice Scalia and joined by Justices Stevens, Souter, Thomas, and Ginsburg, held that a defendant is entitled to a sentence authorized under the law no longer than is supported by the facts he either admitted or that were found by a jury to be true beyond a reasonable doubt. Without a plea of guilt or a jury finding of the additional aggravating facts, only a sentence within the standard range was authorized by law. The aggravated sentence violated Blakely's right to a jury trial.
North Carolina Sentencing Law
Justice O'Connor dissented. She pointed out that sentencing enhancements based upon facts found by the judge in a sentencing hearing have long been standard practice in a number of jurisdictions, such as the federal system and as well as those of several states, including North Carolina. In fact, the North Carolina structured sentencing process depends upon the very features condemned by the Court in Blakely . Under North Carolina's Structured Sentencing Act, there are nine classes of felonies. For the only A-class felony, murder in the first degree, the sentence is either life without parole or death. The determination of which sentence will be imposed rests with the jury, which determines whether there are aggravating factors that require imposition of the death sentence. For each of the remaining classes of felonies, there are three ranges of sentences for each of six prior record levels. NC Gen. Stat. Section 15A-1340.17(c). The Blakely ruling does not require the fact of prior convictions to be determined by a jury, so that aspect of North Carolina's sentencing scheme is not affected by the case. But the North Carolina statute allows the sentencing judge in her discretion to depart from the presumptive range (called the "standard range" in Washington State) if she finds that the presence of additional facts justify a mitigated or aggravated sentence. The North Carolina statute (Section 15A-1340.16(d)) lists 19 specific aggravating factors, with a twentieth "catch-all:" "Any other aggravating factor reasonably related to the purposes of sentencing." Aggravating factors are to be argued to the judge and proven by the state "by a preponderance of the evidence." NC Gen. Stat. Section 15A-1340.16(a).
It is readily apparent that, since the Blakely decision, a North Carolina defendant may not receive an aggravated sentence without either a trial by jury for the presence of an aggravating factor beyond a reasonable doubt, or the defendant's specific waiver of the right to the jury finding. The terms of a plea bargain may include either an admission of aggravating factors or an agreement that the judge may find such factors following a hearing. If there is no such agreement, then the maximum sentence the court may impose is the maximum sentence in the presumptive range for the offense charged.
Where there is no plea bargain and the felony proceeds to trial, the application of Blakely is more complicated. In capital trials, juries now receive evidence on aggravating and mitigating factors in a proceeding following a verdict of guilt. There is no provision under current law for the jury to find aggravating factors in a non-capital trial. Holding such bifurcated trials in every felony case would be expensive and time consuming. It is possible that the guilt/innocence and sentencing issues could be tried together, but it is difficult to envision how the trial could be structured to comply with the Rules of Evidence and keep jurors from being confused or distracted by the complexities of their task. Reconciling the Structured Sentencing Act with Blakey will be challenging for prosecutors, defense lawyers, and judges alike.
Prospective or Retroactive Application
Generally, new interpretations of constitutional requirements cannot be applied in cases that have already been decided. In state court motions for appropriate relief, and in federal court petitions for habeas corpus, changes in federal Constitutional rules announced after the conviction became final are not ordinarily applied in the defendant's favor. State v. Zuniga, 336 N.C. 508 (1994); Teague v. Lane, 489 U.S. 288 (1989). A conviction is final when the time for further direct review has expired. Griffith v. Kentucky, 479 U.S. 314 (1987). If a conviction is not appealed, it is final when the fourteen day period allowed for the filing a notice of appeal expires. Rule 4(a)(2) N.C. Rules of Appellate Procedure. If a conviction is appealed and the Court of Appeals affirms the conviction, it is final at the expiration of the fifteen day period for filing a notice of appeal or petition in the North Carolina Supreme Court. Rules 14(a), 15(b), N.C. Rules of Appellate Procedure. If the North Carolina Supreme Court either denies review or affirms the Court of Appeals, the conviction is final at the expiration of the ninety day period for filing a petition in the United States Supreme Court. Rule 13.1, United States Supreme Court Rules.
If your conviction is final, Blakely probably will not provide grounds for challenging your sentence. There are a few narrow exceptions to the prohibition against applying new rules to final convictions. Teague v. Lane, 489 U.S. 288 (1989). But it is very unlikely that the Blakely rule will be applied retroactively. On the same day the Court announced its opinion in Blakely, it also issued an opinion in Schriro v. Summerlin, (No. 03-526) which held that the rule announced in Ring v. Arizona, 536 U.S. 584 (2003) would not apply retroactively. The rule announced in Ring was that, in capital trials, the jury must find the aggravating factors that support a death sentence. The Court was unwilling to apply the Ring decision to a capital defendant whose conviction was final when Ring was decided. The decision in Schriro would almost certainly foreclose application of the Blakely decision to sentences that have become final.
However, in all pending criminal cases, including those where direct review is still available, Blakely does apply. Defendants who have received aggravated sentences (sentences in excess of the presumptive range), but who did not either admit the aggravators or waive a jury determination, are entitled to re-sentencing.
Conclusion
This article can only provide general information. Moreover, the Blakely decision will have ramifications that are not presently known. If you have questions about how Blakely affects your case, you should consult your attorney. If you do not have an attorney, you may write to NCPLS.
