Overlooking a Sixth Amendment framework.

• Author: Cyrulnik, Jason Colin

State v. Kirk R., 812 A.2d 113 (Conn. App. Ct. 2002), aff'd, 857 A.2d 908 (Conn. 2004).

As the Supreme Court further plunges the world of criminal sentencing into turmoil, state courts in particular are scrutinizing their own statutory sentencing schemes and judicial practices. Ever since the Court's holding in Apprendi v. New Jersey (1) (recently reformulated and expanded in Blakely v. Washington (2)), states have been called upon to ensure that trial judges do not usurp the jury's exclusive fact-finding power and thereby violate criminal defendants' Sixth Amendment guaranty of a trial by jury. While the legal framework that protected this Sixth Amendment right has been developing for decades, Apprendi formulated a bright-line rule that prohibits a judge from finding by herself during sentencing, instead of submitting to a jury for determination at trial, any fact that increases a defendant's sentence beyond the prescribed statutory maximum absent that fact. (3) Under Apprendi, scores of factual determinations were taken from judges and placed back in the hands of juries.

But while courts have continued to occupy themselves with defining the scope of Apprendi and its progeny, they have remained blind to a more fundamental, and increasingly prevalent, problem. By mechanically examining the effect a factor has on the length of a defendant's sentence in determining whether it must be submitted to a jury, courts have permitted the Apprendi bright-line rule to eviscerate the preexisting substantive method for making that determination.

Long before Apprendi, the Court applied a less mechanical, more substantive analysis to determine whether a fact must be submitted to a jury. In Mullaney v. Wilbur, the Court analyzed how the presence or absence of a particular fact related to the underlying crime in order to determine whether or not that fact was indeed an essential element of that crime. (4) Apprendi did not replace or eliminate the need for this Mullaney inquiry; it merely short-circuited the inquiry in cases where the finding at issue increased the sentence beyond the otherwise available maximum sentence.

The current widespread misapplication of the Apprendi doctrine threatens the very Sixth Amendment and due process protections Apprendi was designed to safeguard. A recent Connecticut Appellate Court case, State v. Kirk R., (5) illustrates this problem. The Kirk R. court, relying primarily on the Apprendi doctrine, failed to conduct a Mullaney analysis and thereby permitted the finding of a particular element of a crime to be removed from the jury's purview, allowing the trial judge to make his own unilateral determination at sentencing.

Part I presents the relevant doctrinal background, describing the continuum between "element of a crime" and "sentencing factor" and demonstrating how Apprendi and its progeny do not--and were never intended to--displace the preexisting and entirely discrete element-of-acrime analysis. Part II discusses the facts and holding of Kirk R. Part III argues that the Connecticut court improperly relied on the Apprendi doctrine as relevant to, and even dispositive of, this issue; in truth, all Apprendi could have done was remove a special protection from the Kirk R. court's arsenal, forcing the court to then apply Mullaney's more basic element-of-a-crime test. Part IV closes by addressing the impact of Blakely on this Comment's thesis.

I

In the landmark In re Winship decision, the Court held that the prosecution must prove "beyond a reasonable doubt ... every fact necessary to constitute the crime with which [the defendant] is charged." (6) Although this standard gave defendants significant constitutional protection, Winship failed to provide lower courts with much guidance regarding what specific facts are "necessary to constitute the crime." As a result, the Court in subsequent cases voiced its concern that a state could manipulate its way out of this burden of proof merely by "redefin[ing] the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment." (7)

In Mullaney v. Wilbur, the Court addressed this concern by prescribing a substantive analysis of a fact's traditional relevance to the underlying crime to determine whether that fact should be deemed an element of that crime. (8) Specifically, the Court reasoned that because "the presence or absence of the heat of passion on sudden provocation," the fact at issue, had traditionally been "the single most important factor in determining the degree of culpability attaching to an unlawful homicide," that fact constituted an element of the crime and had to be proven to the jury beyond a reasonable doubt. (9) Although the decision did not set forth a hard-and-fast rule, it provided an analytical framework that the Court has applied on numerous occasions. (10)

Within the bounds of Mullaney, legislatures retained the discretion to classify facts as either elements of a crime or as sentencing factors. In McMillan v. Pennsylvania, for instance, the Court held that, under a Pennsylvania statute, a judge could consider "visible possession of a firearm" as a factor in calculating a defendant's sentence, even absent a specific jury finding on the matter. (11) But Mullaney and its progeny made clear that there were limits to this legislative discretion.

Despite its intuitive appeal, the Mullaney framework was subjective, complex, and difficult to apply. Nearly five years ago, the Supreme Court crafted a...