the unexplored difference between reasons and facts
by: Ryan • June 5, 2014 • no comments
I hope we can all agree that under Apprendi, Blakely and their progeny, if a factual finding is necessary to increase a sentence that could be imposed on a single count, that finding is a jury question absent a waiver of jury or an admission by the defendant.
But what if the judge doesn't need to make factual findings to increase a sentence? Instead, what if the judge merely needs to "give reasons"? And does it matter if those "reasons" are, um, facts about the case?
These are the questions raised implicitly in today's opinion State v. Kelly by the Court of Appeals. The defendant objected to the classification of his racketeering conviction as a level-9, in the absence of any jury findings, on 6th Amendment grounds. As the court itself said, it "briefly" considered and rejected the argument. How "brief"? Read on, MacDuff.
In sum, the COA noted that racketeering is an unranked offense and that while there may be a presumption to rank the crime seriousness consistent with the underlying offenses, the court may rank it higher, because previous cases have indicated it has the discretion to do so. Although the court did not make the following comparison, I interpret its holding as follows: if a defendant falls in a 90/30 gridblock, then a judge need not make factual findings to impose up to 30 days in jail. It has the discretion to do so. (I'm leaving out the "jail-space" finding requirement, but mention it now to head off complaints from the pedantic among you.)
The problem with that analogy is that the court's discretion is not unfettered, not like it is when deciding between 0 and 30. Curiously, the COA did not quote the relevant OAR, which requires that a sentencing judge "state on the record “the reasons for the offense classification.” OAR 213-004-0004.
In this case, the sentencing judge gave two reasons: multiple victims and the extant of the loss. I learned of those reasons from reading the appellate brief, since they -- like the OAR -- are not mentioned in the opinion. They do sound an awful lot like factual findings, though, don't they?
The Court of Appeals must feel that "reasons" -- no matter how factual -- are not the same as "facts" or "factual findings," right? If the relevant OAR had said that the court, in order to impose a higher gridblock, must make factual findings, certainly the COA couldn't have found its way around Blakely and Apprendi so easily.
I'm not saying there isn't a meaningful distinction between "reasons" and "findings", although I don't see it myself in this context. But I am saying that explaining that distinction would have made it a much more interesting opinion.
