Criminal Sentencing in Colorado After Blakely v. Washington

• Publication year: 2005
• Pages: 85

34 Colo.Law. 85 Colorado Bar Journal 2005.

2005, January, Pg. 85. Criminal Sentencing in Colorado After Blakely v. Washington

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85

Vol. 34, No. 1, Pg. 85

The Colorado Lawyer
January 2005
Vol. 34, No. 1 [Page 85]

Specialty Law Columns
Criminal Law Newsletter
Criminal Sentencing in Colorado After Blakely v Washington
by Thomas L. Kennedy

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers and judges to provide information about case law legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in
Colorado state and federal courts.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 666-4064, lfrieling@lfrieling.com; and Morris Hoffman, a judge for the Second Judicial District Court, Denver

About The Author:

This month's article was written by Thomas L. Kennedy, a District Court Judge for the Fourth Judicial District in Colorado Springs, who currently presides over both criminal and civil trials - (719) 686-8014, tom.kennedy@judicial.state.co.us.

This article discusses the U.S. Supreme Court decision in Blakely v. Washington, and its impact on imposition of prison sentences in Colorado. Several recent Colorado cases that addressed Blakely also are discussed and suggestions for dealing with Blakely issues are presented.

On June 24, 2004, the U.S. Supreme Court announced its decision in Blakely v. Washington.1 The Court held that any fact not admitted by the defendant that increased a defendant's sentence beyond that which could be imposed solely on the basis of the jury's findings, other than a prior conviction, must be proved to a jury beyond a reasonable doubt. Nationwide, the eventual repercussions of the Blakely decision are yet to be determined. However, the impact in Colorado, although broad, probably will be significant only in cases in which aggravating factors are alleged and that go to trial. This is likely to be a small percentage of criminal cases.

This article discusses some of the recent U.S. Supreme Court cases leading up to Blakely and addresses the holding in Blakely. It covers Colorado's sentencing scheme relating to the imposition of aggravated sentences,2 as well as Colorado cases that have addressed Blakely. Finally, the article provides some suggestions for submitting Blakely issues to the jury and gives a brief discussion of Blakely waivers as part of guilty pleas. This article does not provide a detailed discussion of the impact Blakely and other decisions may have on the federal sentencing guidelines. The U.S. Supreme Court will be addressing that issue this term.3

Historical Precedents

In March 1986, in McMillan v. Pennsylvania,4 the U.S. Supreme Court upheld a Pennsylvania statute that required the trial judge to impose a minimum mandatory sentence of five years if he or she found, by a preponderance of the evidence, that the defendant visibly possessed a firearm during the commission of certain enumerated crimes. The defendant had argued that visible possession was an element of the crime and, therefore, must be charged in the information or indictment then proved beyond a reasonable doubt. The Court disagreed, deferring to the state legislature's definition of elements as opposed to sentencing factors.5

With little comment, the Court rejected the defendant's Sixth Amendment argument, which later prevailed in the two seminal cases, Apprendi v. New Jersey6 and Blakely. Chief Justice Rehnquist, writing for the 5 - 4 majority, stated, "[W]e need only note that there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact."7 The dissent argued that state legislatures do not have unbridled discretion to define elements. Further, if "a specific component of a prohibited transaction shall give rise both to a special stigma and to a special punishment, that component must be treated as a fact necessary to constitute the crime."8

The Court's next major pronouncement on this issue was Almendarez-Torres v. United States.9 The defendant had been charged with the federal crime of illegally returning to the United States after being deported. Normally, conviction for that charge would result in a sentence of no more than two years. However, if the deportation was a result of a conviction for an aggravated felony,10 a defendant could be sentenced to up to twenty years in prison. The indictment against Almendarez-Torres was silent as to the reason for the earlier deportation. The defendant pled guilty and admitted that he was deported after conviction for three aggravated felonies. The defendant argued that he could not be sentenced to a term greater than two years because the indictment had not mentioned the earlier felonies.

The trial court disagreed and sentenced the defendant to eighty-five months, in accordance with the federal sentencing guidelines then in effect.11 The Fifth Circuit Court of Appeals affirmed the trial court12 and certiorari was granted by the U.S. Supreme Court. Citing McMillan, the Court affirmed the lower court and held that the indictment need not set forth factors relevant only to sentencing. The majority concluded that the relevant factor in this case was recidivism, a factor judges traditionally considered in determining the appropriate sentence to be imposed. Further, the Court noted that if the jury were advised of the defendant's prior crimes, significant prejudice could result.

Justice Scalia, writing for the dissent, stated there was no rational basis for treating recidivism as an exception to the well-established rule that requires the prosecution to plead and prove to a jury beyond a reasonable doubt factors that substantially increase the penalty faced by a defendant. His principal argument, however, was based on the doctrine of constitutional doubt: where there is serious doubt about the constitutionality of a criminal statute, it must be construed in a manner to render it constitutional. In Justice Scalia's view, in Almendarez-Torres, that would result in the prior convictions being treated as elements and therefore provable to the jury beyond a reasonable doubt.

In Jones v. United States,13 the Court adopted the constitutional doubt approach suggested by Justice Scalia's dissent in Almendarez-Torres. It held that a provision in the federal carjacking statute establishing higher penalties if the victim suffered serious bodily injury should be considered an element of the crime, not a sentencing factor. Therefore, serious bodily injury must be proven to the jury beyond a reasonable doubt to avoid a potential violation of the defendant's right to jury trial under the Sixth Amendment. The majority expressed its constitutional doubt this way: "[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."14

The next time the Court considered the question of sentencing aggravators, the constitutional doubt it expressed in Jones became the basis of the Court's substantive constitutional holding. In Apprendi v. New Jersey,15 the Court struck down New Jersey's hate crime statute, which permitted the judge to increase a defendant's maximum sentence if the judge found, by a preponderance of the evidence, that the defendant acted with a purpose to intimidate a victim based on the victim's race, color gender, handicap,...