What open Apprendi questions remain?

This wikilog article is a draft, it was not published yet.

by: Ryan • June 17, 2013 • 5 comments

Here's my list of open questions. Who will be the first to argue that under the Apprendi/Blakely or a related analysis, juries must:

(1) Find a Jessica's Law defendant is over 18 in order to impose the full 300 month sentence.

(2) Find separate criminal episodes in order to reconstitute the defendant's grid score or make him REPO eligible.

(3) Find a substantial pause between repeated occurrences of the same offense in order to defeat merger.

(4) Find that the victim of Identity Theft was real and alive at the time the crime was committed.

(5) Find that the child depicted in porn photos was alive at the time the defendant viewed the pictures.

(6) Find the amount of restitution the defendant owes?

Additional open questions are:

(1) Must offense-specific enhancements be pleaded in the indictment, per the Oregon Constitution?

(2) Is the defendant entitled to a preliminary hearing on all upward departure factors under the US Constitution?

Questions that aren't open but might be worth preserving, in case SCOTUS revisits:

(1) Must upward departure factors be pleaded in the indictment pursuant to the indictment clause?

(2) Must a jury find -- absent a waiver or admission -- defendant's prior convictions?

I retain the perogative to update this list to include other Blakely-type issues I may have missed. But if you want full credit, add it in a comment.