What is the Impact of Blakely v. Washington on Sentencing in Tennessee? – 2
What is the Impact of Blakely v. Washington on Sentencing in Tennessee? – 2
B.
For an extensive history of two hundred years of sentencing practices in Tennessee see this article which appears on my firm’s web site. Suffice it to say that for much of our history the jury, not the judge, imposed the sentence. Tennessee’s system of jury sentencing was altered in 1982 and more definitively in 1989.
Our current structure for imposing punishment on felony offenders under the Tennessee Criminal Sentencing Reform Act of 1989 was addressed in detail in State v. Jones, 883 S.W.2d 597 (Tenn.1994):
Included in the Tennessee Criminal Sentencing Reform Act of 1989 is the structure for imposing punishment on felony offenders. The Act divides felonies into five classifications according to the seriousness of the offenses [Class A, B, C, D and E]; it separates offenders into five classifications according to the number of prior convictions [Range I, II, III, etc.]; it assigns a span or range of years for each class of crime committed by each class of offenders; and it employs enhancement and mitigating factors to assess the definite sentence within each range. Tenn. Code Ann. §§ 40-35-105, 40-35-114. This sentencing plan was developed by the Sentencing Commission, in response to a mandate by the legislature, “for use by a sentencing court in determining the appropriate sentence to be imposed in a criminal case.” Tenn. Code Ann. § 40-37- 203(a) (1990). …The nature and extent of the punishment to be imposed for similar offenses committed by similar offenders has been determined by the classification of offenses according to their seriousness and the classification of offenders according to their prior convictions. The only discretion allowed the sentencing court is to accommodate variations in the severity of the offenses and the culpability of the offenders within the ranges of penalties set by the legislature. Even this discretion is restrained under the Act through the establishment of a “presumptive sentence” and the mandatory use of enhancing and mitigating factors.
The minimum sentence is the presumptive sentence. Tenn. Code Ann. § 40-35- 210(c) (1990). [This was later changed by statute to the mid-range for Class A felonies.] The sentence imposed cannot exceed the minimum sentence in the range unless the State proves enhancement factors. If there are enhancement but no mitigating factors, then the court “may set the sentence above the minimum in that range but still within the range.” Tenn. Code Ann. § 40-35-210(d). If there are enhancement and mitigating factors, “the court must start at the minimum sentence in the range, enhance the sentence within the range as appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating factors.” Tenn. Code Ann. § 40-35- 210(e). However, only those enhancement factors specifically authorized by statute may be used to increase a sentence. Further, there are two significant limitations on the use of enhancement factors that may be established by the proof – enhancement factors must be “appropriate for the offense” and “not themselves essential elements of the offense.” Tenn. Code Ann. § 40-35-114. The obvious purpose of these limitations is to exclude enhancement factors which are not relevant to the offense and those based on facts which are used to prove the offense. Facts which establish the elements of the offense charged may not also be the basis of an enhancement factor increasing punishment. The legislature, in determining the ranges of punishment within the classifications of offenses, necessarily took into account the culpability inherent in each offense.
As noted, the 1989 Tennessee Sentencing Act divides criminal penalties for each felony classification into several increasing Ranges of punishment. This objective sentencing system, as explained in the sentencing commission comments to Tenn. Code Ann. §40-35-101, imposes mandatory penalties for persons classified as “multiple,” “persistent,” or “career” offenders.
Under Tennessee law these enhanced sentence Ranges are only available for defendants who have a certain number of required “prior convictions.” Blakely v. Washington makes crystal clear that prior convictions may be used to enhance a sentence without running afoul of the Apprendi doctrine.
Unlike Washington and, for that matter, federal law, Tennessee has no “departure” sentences that permit a judge to deviate upwards from the prior-conviction driven Range determination. A judge may deviate lower into the “mitigated offender” category, Tenn. Code Ann. § 40-35-109 but this could hardly be the topic of a constitutional challenge.
Recall the earlier observation that it was the Washington “exceptional” sentence – sentencing outside (or above) the normal range – which was condemned in Blakely. This is analogous to an “upward departure” allowed in the federal sentencing guidelines. Both the Washington exceptional sentence and a federal upward departure permit the judge to sentence above the guideline range where the factors establishing the guideline range do not adequately reflect the seriousness of the offense. Clearly these “departures” are no longer permissible under Blakely absent a jury determination that the facts justifying such a departure exist beyond a reasonable doubt.
Tennessee does not have such an upward departure scheme. It may be the absence of such a departure device that arguably removes Tennessee from the ambit of Blakely. A court interpreting Tennessee law could find that the key to all of this is whether the sentence “range” is reasonably anticipated by either the plea or the nature of the conviction. As Justice Scalia, writing for the Blakely majority, said: “Faced with an unexpected increase of more than three years in his sentence, petitioner objected.” Why was this “unexpected?” The answer may lie in the use of the phrase “standard sentence” used by the majority:
Petitioner argued below that second-degree kidnapping with deliberate cruelty was essentially the same as first-degree kidnapping, the very charge he had avoided by pleading to a lesser offense. The [Washington] court conceded this might be so but held it irrelevant. …Petitioner’s 90-month sentence exceeded the 53-month standard maximum by almost 70%; the Washington Supreme Court in other cases has upheld exceptional sentences 15 times the standard maximum. … Did the [Washington] court go too far in any of these cases? There is no answer that legal analysis can provide. With too far as the yardstick, it is always possible to disagree with such judgments and never to refute them.
Another passage from the majority provides:
Any evaluation of Apprendi’s “fairness” to criminal defendants must compare it with the regime it replaced, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment,…. based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong. We can conceive of no measure of fairness that would find more fault in the utterly speculative bargaining effects Justice Breyer [dissenting] identifies than in the regime he champions. Suffice it to say that, if such a measure exists, it is not the one the Framers left us with.
The Blakely majority embraces the concept of the realistic “maximum potential sentence.” Thus a “departure” from this norm violates the Sixth Amendment because the jury did not make this factual finding justifying the exceptional sentence.
As noted, Tennessee has no such exceptional sentences. Indeed, the defendant must receive pretrial notice of prior convictions used to trigger higher Ranges. See Tenn. Code Ann. §40-35-210(g): “A sentence must be based on the . . . record of prior felony convictions filed by the attorney general with the court as required by §40-35-202(a).” The pretrial notice provisions are based on “a defendant’s prior record” so that a defendant can evaluate the risks and chart a course of action before trial. State v. Lowe, 811 S.W.2d 526, 527 (Tenn. 1991), discussing current Tenn. Code Ann. §40-35-202(a). See also State v. Stephenson, 752 S.W.2d 80 (Tenn. 1988) which continues to apply to the 1989 sentencing law, State v. Gilmore, 823 S.W.2d 566, 571 (Tenn. Crim. App. 1991).
Arguably Blakely could be limited to such “exceptional” or “departure” sentences, which means that the case may have no impact in Tennessee save to prohibit our legislature from enacting such provisions in the future. I believe, however, that Blakely will not be limited to just the “exceptional” out-of-range sentence. Indeed, it would have been too easy for the majority to have limited the holding to the departure sentence and have left the within-the-range enhancement issue “for another day.”
There is no “other day.” Blakely prohibits all judicially imposed sentencing “enhancements” even within the “expected” Range. I am of this view since I cannot read Blakely in anything but a literal manner.
Blakely, applied to Tennessee law, requires that we first consider that our sentencing ranges encompass a significant span of years. The “expected” sentencing range under the Washington Sentencing Reform Act examined in Blakley was limited to 49-53 months. In Tennessee a “first offender” can be sentenced to 8 to 12 years within Range I for a Class B felony. The [1] difference between the high and low in Blakely was only 4 months; in the Tennessee example it is 4 years! In this light, Tennessee does not need a “departure” sentence since the Tennessee judge can impose a 50% increase if there are sufficient statutory enhancement factors.
Without question the Tennessee statutory enhancement factors have not been found by the jury since, as noted by State v. Jones, 883 S.W.2d 597 (Tenn.1994), our system precludes double dipping whereby an element of the crime can be once again used to enhance the sentence. Many of these factors are highly relevant to the sentence but should never be in evidence when the jury is considering guilt or innocence. For example, Tenn.Code Ann. §40-35-114(2) provides, as an enhancement factor, that the defendant “has a previous history of … criminal behavior.” No defendant could receive a fair trial if there were wholesale introduction of prior sins that a judge could appropriately consider at the later sentencing hearing. Yet it is the very existence of non-jury found “extra factors” which precludes an enhanced sentence according to this extended passage from the Blakely majority:
In this case, petitioner was sentenced to more than three years above the 53-month statutory maximum of the standard range because he had acted with “deliberate cruelty.” The facts supporting that finding were neither admitted by petitioner nor found by a jury. The State nevertheless contends that there was no Apprendi violation because the relevant “statutory maximum” is not 53 months, but the 10-year maximum for class B felonies in § 9A.20.021 (1)(b). It observes that no exceptional sentence may exceed that limit. See § 9.94A.420. Our precedents make clear, however, that the “statutory maximum” for Apprendi purposes 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. … “the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” … and the judge exceeds his proper authority.
The judge in this case could not have imposed the exceptional 90- month sentence solely on the basis of the facts admitted in the guilty plea. Those facts alone were insufficient because, as the Washington Supreme Court has explained, “[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense, ….which in this case included the elements of second-degree kidnapping and the use of a firearm, … Had the judge imposed the 90-month sentence solely on the basis of the plea, he would have been reversed. … The “maximum sentence” is no more 10 years here than it was 20 years in Apprendi (because that is what the judge could have imposed upon finding a hate crime) or death in Ring (because that is what the judge could have imposed upon finding an aggravator).
This extended passage is telling because it alerts us to the fact that sentencing enhancements apart from the elements of the crime may be beyond the judge’s constitutional authority to consider where they involve fact finding on potentially contested issues. I have earlier suggested that Blakely clearly prohibits “departure sentences outside the Range.” However, enhancements inside the Range may also be constitutionally suspect. This is so because of Tennessee’s “presumption” that, absent proof of enhancement factors, the defendant must be sentenced at the minimum within the Range (or at mid-Range for a Class A felony.)
Since our statutory sentencing enhancements can dramatically increase the sentence from the presumptive minimum to the maximum within the Range, I believe such enhancements are precisely the sort of factual determinations that must now be assessed by a jury beyond a reasonable doubt. Try as I may, I can read Blakely in no other fashion. This is particularly the case since our Ranges have presumptive minimums and have such an enormous spread of not just months but years.
The just-quoted passage from Blakely ends with a citation to Ring v. Arizona, 536 U.S. 584 (2002). Ring applied Apprendi to an Arizona law that authorized the death penalty if the judge found one of ten aggravating factors. The Supreme Court concluded that the defendant’s constitutional rights had been violated because the judge had imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding.
Ring was given little attention in Tennessee because it dealt with a judge-imposed death penalty where ours is imposed by a jury. However, upon closer inspection, Ring stands for a much broader doctrine. Ring held that the Constitution does not require that the jury impose the death penalty. Rather, the Constitution requires that it is the jury that must make the finding that a particular aggravator exists beyond reasonable doubt, which then authorizes a death penalty determination by either a judge or jury.