What is the Impact of Blakely v. Washington on Sentencing in Tennessee? – 3

Footnote 4 in Ring v. Arizona, 536 U.S. 584, 597 (2002) answers a host of Blakely-related questions:

Ring’s claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him. No aggravating circumstance related to past convictions in his case; Ring therefore does not challenge Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that the fact of prior conviction may be found by the judge even if it increases the statutory maximum sentence. He makes no Sixth Amendment claim with respect to mitigating circumstances. See Apprendi v. New Jersey, 530 U.S. 466, 490-491, n. 16, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (noting “the distinction the Court has often recognized between facts in aggravation of punishment and facts in mitigation” (citation omitted)). Nor does he argue that the Sixth Amendment required the jury to make the ultimate determination whether to impose the death penalty. See Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (plurality opinion) (“[I]t has never [been] suggested that jury sentencing is constitutionally required.”). He does not question the Arizona Supreme Court’s authority to reweigh the aggravating and mitigating circumstances after that court struck one aggravator. See Clemons v. Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). Finally, Ring does not contend that his indictment was constitutionally defective. See Apprendi, 530 U.S., at 477, n. 3, 120 S.Ct. 2348 (Fourteenth Amendment “has not … been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury’”).

Given that nothing in Blakely calls into questions the continued vitality of these precedents, I believe I can make some suggestions which will maintain the integrity of Tennessee’s sentencing laws without resorting to our discarded practice of full-blown jury sentencing at a unified trial.

First, we should remember that the overwhelming majority of cases are resolved by a negotiated settlement via plea negotiations. Blakely makes crystal clear that a defendant may always waive his Apprendi rights:

When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial fact finding. … If appropriate waivers are procured, States may continue to offer judicial fact finding as a matter of course to all defendants who plead guilty. Even a defendant who stands trial may consent to judicial fact finding as to sentence enhancements, which may well be in his interest if relevant evidence would prejudice him at trial.

It is beyond the scope of this paper to make more specific suggestions as to guilty pleas except to say that all Tennessee jurisdictions now use pre-printed waiver forms and thus appropriate waivers can be included where there will be a later sentencing hearing. I strongly suggest that the guilty plea colloquy include a waiver of the right to a jury trial as to guilt and as to sentencing enhancement factors.

Recall that Blakely squarely held that: “every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.” Once we accept that sentencing enhancement factors are “facts legally essential to the punishment” it is a relatively simple matter to have a defendant waive that right just as he or she does regarding elements of the crime when entering a guilty plea.

Over-reliance on plea bargaining is not the only solution since sentencing negotiations are often a function of what the judge will impose in a contested case. What should we do in the contested case where there is no waiver of jury-determined sentencing enhancements? In my view, the unsatisfactory answer is that until we can amend the sentencing laws the judge is now limited to imposing the statutory presumptive sentence. The concluding passage from Blakely makes this inevitable:

Petitioner was sentenced to prison for more than three years beyond what the law allowed for the crime to which he confessed, on the basis of a disputed finding that he had acted with “deliberate cruelty.” The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to “the unanimous suffrage of twelve of his equals and neighbours,” 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State.

Confining sentences to the presumptive minimum is not the end of the world given the length of even the lower ends of some of the Ranges under Tennessee law. Our most serious offenses are Class A felonies which “presume” a mid-Range sentence and most of these crimes require 85% of the sentence to be served before the offender is released. Thus, there will be no mass release of dangerous criminals.

While I believe that a jury must now determine enhancement factors, there may be one exception for the enhancement factor permitting consideration of prior convictions not otherwise used to move the defendant to a higher Range. Tenn. Code Ann. § 40-35-114(2). Certainly, if Blakely allows prior convictions to justify a departure to higher Ranges, the opinion would permit prior convictions to increase the sentence within the same Range. We should exercise caution that such increases should be commensurate with increases prior to Blakely, lest this lone factor be used to compensate for the fact that other enhancements are prohibited until we can amend the law.

Recall also that defendants are often charged with multiple crimes. Rare is the case where a prosecutor cannot carve out a host of separate charges from a single criminal episode. Multiple convictions allow for the possibility of consecutive sentencing. We must be cautious that consecutive sentences are not inappropriately used as a vehicle substantially to increase a total sentence structure where Blakely compels the minimum sentence for each crime. There is nothing (at least yet) that suggests that a defendant must receive a jury trial on consecutive sentencing factors, but an “end run” around Blakely should not be tolerated.

What about retroactivity? Are sentences imposed three years ago suspect? Probably not. Decided the same day as Blakely, Schriro v. Summerlin, __ S.Ct.__, 2004 WL 1402732 (U.S. June 24, 2004) held that Ring does not apply retroactively to cases already final on direct review. There is no reason to suppose that Blakely will be treated any differently.

The retroactivity “solution” begs the question of the disposition of cases that are not yet final on direct appeal. The answer is that if the defense lawyer raises the issue on appeal (even belatedly while the appeal is still pending), the case should be remanded for re-sentencing along the lines suggested here in that the presumptive sentence should be imposed. But I believe the judge is free to alter other sentencing determinations such as consecutive sentencing. There is nothing novel in this approach since other pipeline sentencing determinations had to account for new laws. Indeed, the 1989 Tennessee law applied to all pending cases and spawned a significant amount of litigation. See generally, State v. Pearson, 858 sw2d 879 (Tenn. 1993).

What about misdemeanors? Misdemeanor sentencing is governed by Tenn. Code Ann. § 40-35-302. Although otherwise entitled to the same considerations under the Sentencing Reform Act of 1989, unlike a felon, a misdemeanant is not entitled to the presumption of a minimum sentence. State v. Seaton, 914 S.W.2d 129 (Tenn.Crim.App.1995). Moreover, as a sentencing hearing is not mandatory, trial courts are not required to explicitly place their findings on the record.

In determining the percentage of the misdemeanor sentence that must be served in confinement, the court may consider enhancement and mitigating factors as well as the legislative purposes and principles related to sentencing. State v. Gilboy, 857 S.W.2d 884 (Tenn. Crim.App.1993). However, the statutory enhancement and mitigating factors do not have to be the only factors considered by the trial court in determining the appropriate sentence. Indeed, consideration of the statutory enhancement factors may very well be futile in the area of misdemeanor sentencing since the very terms of certain enhancement factors limit their application solely to felony offenses. See generally, State v. Palmer, 902 S.W.2d 391 (Tenn 1995). Fortunately, since our felony system of enhancement factors is not mandatory for misdemeanors and a judge has discretion to impose the full range of statutory penalties with no presumptive minimum, I am firmly of the view that Blakely has no application to Tennessee misdemeanors.

In the short term, we can accommodate the Blakely holding by assessing the statutory presumptive sentence for all felony cases where the defendant declines to waive his or her Sixth Amendment sentencing rights. Cases on direct appeal will have to be remanded but we have encountered similar dilemmas previously and survived. For example, some twenty-five years ago the jury instruction on parole was struck down and a number of cases were remanded as a result. See, Farris v. State, 535 S.W.2d 608 (Tenn. 1976) and Adams v. State, 547 S.W. 2d 553 (Tenn. 1977).

To remedy what I believe are constitutionally mandated limitations on judicial sentencing, I suggest we selectively amend the 1989 Sentencing Act. This does not require wholesale revisions of the law. Instead I advocate a bifurcated jury trial where – after guilt is assessed – the jury determines only the existence of statutory enhancement factors. That accomplished, the judge may then impose a sentence considering only those factors that the jury determined were proven by the government beyond a reasonable doubt. This system is workable because there is no requirement that the jury impose the sentence, only that the jury determines the existence of enhancement factors that increase the sentence above the presumptive sentence fixed by the legislature. This ignores for the moment that in Tennessee a jury must impose a fine of over fifty dollars because of our state constitution.

Recall that critical footnote 4 in Ring v. Arizona, 536 U.S. 584, 597 (2002). The judge can consider prior convictions even if it increases the statutory maximum sentence. Thus, we can use the existing Tennessee framework that drives a defendant to higher ranges based on prior convictions.

There is no requirement that statutory factors in mitigation be submitted to a jury except to the extent that they disprove enhancement factors. Apprendi v. New Jersey, 530 U.S. 466, 490-491, n. 16, (2000) (noting “the distinction the Court has often recognized between facts in aggravation of punishment and facts in mitigation”). Thus, once the jury has found the appropriate enhancement factors the judge may conduct a hearing where he or she weighs the various factors as contemplated by our current law. As Ring also observes, the higher courts can modify the sentence thus preserving our system of appellate review.

Finally, the right to an indictment extends to elements of the offense and thus arguably the indictment need not include any statutory enhancement factors. In my view, Due Process dictates that the defendant be notified of the government’s intent to seek a higher sentence and thus we may want to require that enhancement factors be included in pretrial notice provisions as we do now for prior convictions.

The sentencing hearing can then be conducted exactly as it is now complete with a presentence report. Informed decision-making is critical and I believe Blakely did not intend to tamper with the procedural components of enlightened sentencing schemes.

What we must do is amend the law to require that whatever enhancement factors the government believes exist must be submitted to a jury. The framework for this already exists in our bifurcated system for determining aggravating factors in death penalty cases and in cases in which the government seeks life without parole. The same jury comes right back in after guilt is determined and the prosecutor puts on his or her proof, the judge charges the jury, and the jury returns a special verdict signifying if these factors have been proven beyond a reasonable doubt.

What about the various mitigation factors contained in our sentencing law? As noted in the Ring footnote, addressed earlier, a jury need not assess the separate statutory mitigation factors. Thus, a bifurcated proceeding should not require defense proof of mitigation. Such evidence is simply not relevant to the jury-determination of the statutory enhancement factors the government must establish for use at the later sentencing hearing conduced by the judge alone.

Since the jury does not impose any sentence these separate proceedings should not consume much time. Indeed, the government’s proof in the guilt phase may have already supplied the necessary evidence. For example, even though it is not an element of the crime, the state may chose to prove that a pistol caused the murder. If the firearm were the only sentencing enhancement factor, few attorneys would waste the daylight to have a separate hearing if that factor was not contested.

In other cases, the statutory enhancement factor may be the “whole ball of wax” and thus substantial time would be devoted to proving or rebutting the existence of a particular factor. Enhancement factor 22 relating to a “criminal street gang” comes to mind as a factor that could be hotly contested in a rural area where there may be gangs but very few streets.

It is precisely such a factual contest in front of a jury that convinces me that Blakely makes sense: why should the judge be allowed to enhance a sentence from say, three years to the statutory maximum of six based only on a preponderance of the evidence of dubious facts? This is particularly true given that our enhancement factors have no assigned weight. Perhaps it is appropriate that the Constitution now entrusts these enhancement findings to a jury.

For this proposal to work efficiently with a lay jury, we need to reassess our statutory enhancement factors. Some factors are highly subjective and needed improvements in language are obvious. Definitions for the enhancement factors are necessary for those factors that are retained. Careful attention must be given to how these factors will interact with each other. While daunting, this process is not as difficult a task as the four years of effort the Sentencing Commission needed to rewrite our substantive code and sentencing laws.

I believe we should avoid the “quick fix” solution that suggests we should do away with guidelines as a method of avoiding Blakely problems. Another purported remedy is to have a presumptive maximum and allow the defense to mitigate the sentence downward. Such solutions smack of a “Hanging Judge” mentality and are inconsistent with an enlightened sentencing system. I am not overly concerned about such proposals given the astronomical fiscal note that would accompany such legislation.

We have a sound sentencing system. Compared to other jurisdictions that may have to revise their entire Codes, our sentencing laws need no more than a modicum of procedural tinkering to comply with the dictates of Blakely.

Since I have been involved with sentencing laws for thirty years, my colleagues have asked my opinion about the correctness of Blakely. I agree that exceptional or departure sentences should be in the realm of the jury rather than the judge, somewhat like our old habitual criminal law. The problem is, as the Supreme Court held, where does one draw the line? When does the gun become an element of the crime, and when does it become a “sentencing factor” that the judge can use to double the sentence?

The dissenters in Blakely complained: “The consequences of today’s decision will be as far reaching as they are disturbing.” I agree that the decision is far reaching, but it is certainly not disturbing. I am not offended by the proposition that enhancements — be they labeled element of the crime or sentencing factors — can only apply against the defendant if the jury says so. That, in my opinion, is the beauty of Blakely, which views the Sixth Amendment in a new light: “[T]he Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury.” I applaud this observation since our Constitution must always be assessed in new lights so we can admire it the better.