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Blakely Factors You May Not Know Are Blakely Factors, Part 1

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by: Ryan • May 17, 2012 • no comments

A few weeks ago, I was in a room with a few prosecutors. In the course of our legal discussion, I mentioned that juvenile adjudications were Blakely factors, i.e., not only did they have to be proven to a jury (if not admitted) but the state was required to give notice within the statutory deadline of an intent to prove said adjudications beyond a reasonable doubt.

One of the prosecutors scoffed. He clearly believed that my argument was a loser and no judge would buy it. He's a nice guy, but he is quick to scoff at any defense argument rather quickly.

If I were a better poker player, I would have let him scoff and hoped his ignorance would continue until it benefited some future client of mine or one of my fellow defense attorneys. But I couldn't resist. I pointed out that it wasn't a hypothetical argument; according to the Oregon appellate courts, it was the law.

And it is. Juvenile adjudications, which in some circumstances can move a defendant along the sentencing grid so that an otherwise presumptive probation offense becomes presumptive prison, must be proven to a jury (if he doesn't waive jury on that specific issue or admit to the adjudications). State v. Lafferty and State v. Harris.

Further, because they are Blakely facts, the prosecutor must give notice of an intent to prove their existence to a jury. I doubt merely providing a criminal history is enough. And that notice must be timely, absent good cause for missing the deadline.

When the Oregon appellate courts ruled that juvenile adjudications must be proven to a jury, they distinguished those adjudications from convictions, which would also be Blakely facts, but for the fact that years ago, the US Supreme Court ruled that prior convictions which increased a defendant's sentence were an exception to the Blakely rule. They said so in a case known as Almendarez-Torres.

Almendarez-Torres is sorta unique in Supreme Court history. When it carved out the prior conviction exception, it was a 5-4 decision, with Justice Thomas in the majority and Justice Scalia -- the passionate 6th Amendment advocate -- in the minority. Keep in mind that if it had gone the other way, prosecutors would have to prove prior convictions to a jury in order to enhance the sentence, assuming the defendant didn't admit to them or waive jury.

Anyway, you'd think that would be the end of it, except two somewhat strange things happened. Not terribly long after Almandarez-Torres was decided, the US Supreme Court in Apprendi said, in effect, "you know, it's not really before us right now, but Almendarez-Torres might have been wrongly decided."

Strange. But even stranger, Justice Thomas would publicly admit that he made a mistake in voting for the prior conviction exception. He regretted his vote. And at the time he said so, the original four dissenters were still on the court. So those four, plus Thomas, would have been enough to eliminate the prior conviction exception.

Except that the issue never again reached the court. There were never four votes to grant cert to any case challenging A-T. It appears that Justice Stevens -- and, presumably, at least one other justice from the minority -- felt that even though A-T was wrong, stare decisis- type rationales justified not revisiting the issue and overturning A-T.

In the years since, there have been times it looked like maybe SCOTUS was showing interest in a case that could overturn A-T.

But it never happened. Yet here we are, once again, and the possibility exists that SCOTUS will revisit the prior conviction exception to Blakely. Among the many petitions for cert that the Court looks at each term, the court has "re-listed" Staunton v. California. Re-listing can mean a few different things, some utterly inconsequential, but it can mean that someone on SCOTUS is trying to convince their fellow justices to grant cert. Or at a minimum, somebody on the court is interested in the issue. Also increasing the odds of cert: the court has requested the record in Staunton.

So what's the issue in Staunton? It's the issue that began this post: assuming juvenile adjudications are Blakely facts, do they fall under the prior conviction exception?

Recall that even though Oregon appellate courts have said juvenile adjudications do not fall under the prior conviction exception, SCOTUS has never weighed in on the issue. So if SCOTUS does grant cert, it's a real mixed bag for defendants. On the one hand, maybe the court will hold -- over the passionate dissents by Thomas and Scalia -- that prior adjudications are encompassed within the prior conviction exception, and we in Oregon will lose some defense-friendly 6th Amendment case law.

Alternatively, this could be the case where a majority finally does what Justice Thomas wants it to: overturn A-T and eliminate the prior conviction exception altogether. Keep in mind though that there has been significant turnover since A-T and Apprendi were decided and it's no longer certain that there is a majority who think A-T was wrong decided, much less that there's a majority that would overturn it.

So, if you're a defense attorney, what should you do? Right now, probably nothing. But if SCOTUS grants cert in Staunton -- and we'll let you know at this website if they do -- then you'll want to object to the use of defendant's alleged criminal history at sentencing (assuming such history makes a difference, either on the grid or for a REPO sentence). You'll lose the argument at trial of course, as you should, but assuming cert has been granted, Staunton will be decided by the time the appellate attorney writes the brief in your case. If Staunton has overruled A-T, appellate counsel will conclude you are a prescient genius.

That's a lot of ifs, and right now, like I said, I wouldn't worry about it. But if anything changes, we will let you know.