Blakely v Washington
The impact of this decision will be felt for years to come in both federal and state jurisdictions, as lawyers and judges begin to interpret and apply it. In a nutshell, its holding has been stated: if a judge must find facts which increase or exceed the legislatively authorized range of punishment, Blakely is violated. Expressed more positively, the constitution guarantees a defendant the right to a jury determination beyond a reasonable doubt of any fact which is used to justify an increase in, or upward departure from, the legislatively authorized range of punishment.
To date, the Michigan courts have rejected application of the Blakely rule in Michigan, concluding that our indeterminate sentencing scheme is unaffected by the Blakely decision. See People v Drohan, 475 Mich 140; 715 NW2d 778 (2006); People v McCuller, 475 Mich 176; 715 NW2d 798 (2006). But in February of 2007, the United States Supreme Court granted cert in the McCuller case, vacated that decision and remanded to the Michigan Supreme Court for further consideration in light of Cunningham v California, ___ US ___; 127 S.Ct. 856; 166 L.Ed.2d 856 (2007). McCuller v Michigan, ___ S Ct ___ (2007). The Michigan Supreme Court has also granted leave to appeal in two cases involving a departure from an intermediate sanction cell. People v Burns, 477 Mich 933; 723 NW2d 567 (2006); People v Harper, 477 Mich 933; 723 NW2d 567 (2006). In the Harper case, the Court directed the parties to discuss whether a defendant's failure to object to facts contained within the presentence report constitutes an admission for purposes of the Blakely analysis. In April of 2007, the Michigan Supreme Court will hear oral argument in the Burns, Harper and McCuller cases.
The Criminal Defense Resource Center will collect the materials relating to Blakely’s application in Michigan, making them available to all criminal defense attorneys. Subscribers to the CDRC web-based services will have not only these, but also the contents of discussions taking place in the Forum, the online community of the criminal defense bar in Michigan (search messages for "Blakely.")
Blakely Resources from the National Center for State Courts.
Sentencing Law and Policy, web blog of Professor Douglas A. Berman of the Mortiz College of Law at the Ohio State University. Excellent resource for upto the minute resources on Blakely.
National Association of Criminal Defense Lawyers details federal sentencing guidelines.
First District Appellate Project (FDAP) Blakely Page.
United States Sentencing Guideline Project (USSGuide) Blakely Page.
Federal Public Defender for the District of Columbia (DCFPD) Blakely Page.
People v Barnes, Djuan Vincent, by Christine A. Pagac, December 27, 2007.
Blakely Argument, by Kevin Toll, February, 2005.
People v Hamilton, Supplemental Brief filed on August 27, 2004 by Gary Rogers.
Prosecutor's Answer Opposing Defendant's Motion for Peremptory Reversal, September 27, 2004.
Prosecutor's Supplemental Brief on Appeal, September 29, 2004.
People v Doe, Supplemental Brief on Appeal filed August 19, 2004 by Sheila Robertson Deming.
People v Grimmett, Supplemental Delay Application for Leave to Appeal filed on August 11, 2004 by Sheila Robert Deming.
People v Ossowski, Supplemental Brief on Appeal filed August 5, 2004 by Sheila Robertson Deming.
People v Head, Supplemental Brief on Appeal filed July 30, 2004 by Sheila Robertson Deming.
People v Thomas, #245668, Motion for Reconsideration of Opinion filed July 28, 2004 by Randy Davidson.
People v Smith, three pleadings, Sentencing Memorandum, Supplemental Sentencing Memorandum and Reply to State's Response. Submitted by Frederick N. Blanchard, July 12 and 22, 2004.
People v Schram, Supplemental Brief Filed in the Michigan Court of Appeals by Gary Rogers, 7-12-04:
DEFENDANT-APPELLANT IS ENTITLED TO RESENTENCING BECAUSE THE SENTENCING JUDGE INCREASED THE STATUTORY SENTENCING GUIDELINES RANGE IN HIS CASE BASED ON FACTS WHICH WERE NOT PROVEN TO A JURY BEYOND A REASONABLE DOUBT, IN VIOLATION OF BLAKELY V WASHINGTON, 542 US ___; 124 S CT 2531; ___ L ED 2D ___ (2004).
People v Schram, Motion for Leave to Amend Grounds for Appeal, Filed in Michigan Court of Appeals by Gary Rogers, 7-12-04.
People v Bryant, Application for Leave to Appeal in the Michigan Supreme Court, filed by Randy Davidson, 7-9-04:
THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS RIGHTS AT SENTENCING BY DEPARTING ABOVE THE STATUTORY SENTENCING GUIDELINE RANGE BASED ON ALLEGED FACTS WHICH THE PROSECUTOR DID NOT CHARGE AND PROVE BEYOND A REASONABLE DOUBT AT A TRIAL OR HAVE APPELLANT ADMIT AT A PLEA.
Blakely Memo to File, prepared by Randy Davidson for use in any case, July, 2004.
Blakely argument, prepared by John Minock, July 2004.
People v McCullar, 475 Mich 176 (2006).
People v Drohan, 475 Mich App 140 (2006).
People v Keller, Judge Timothy P. Pickard, Lenawee Circuit Court, August 27, 2004. Lenawee County Judge Declares State Sentencing Guidelines Unconstitutional (Associated Press) and Judge: Guidelines Unconstitutional (Lenawee Connection), August, 26, 2004
People v Claypool, ___ Mich ___ (#122696, 7-22-04) [Michigan Supreme Court addresses Blakely in a footnote, writing that Michigan sentencing guidelines are unaffected].
People v Motten, unpublished Michigan Court of Appeals opinion #246417 of 7-20-04 (remanded for resentencing in light of Blakely).
Supplemental Brief in Support for Writ of Habeas Corpus, Maxson v Hofbauser, in US District Court, Eastern District of Michigan, January 7, 2008.
The Indiana Supreme Court has applied Blakely to its state sentencing guidelines scheme, finding a Sixth Amendment right to jury trial defect, in Smylie v Indiana, March 9, 2005.
United States v Koch, Sixth Circuit Court of Appeals, August 26, 2004.
Tennessee v Syler, unpublished opinion of the Tennessee Court of Criminal Appeals (Docket No.E2003-02626-CCA-R3-CD, decided September 13, 2004), holding that Blakely precludes enhancing a sentence based on victim vulnerability or abuse of trust, where these factors were not reflected in the jury's verdict or admitted by the defendant, who was convicted of child rape and related offenses.
State v Whitley, ___ NW2d ___ (Minn App, 7/20/2004) [Blakely precludes enhancing a sex offender's sentence on the basis that the defendant committed a "predatory offense", where the defendant did not knowingly waive the right to a jury determination of that fact.]
Litigating Blakely Claims In A Land Of Judicial Uncertainty, by two of Michigan's top criminal defense attorneys, Stuart Friedman and Mark Stevens, analysis current to August 12, 2004.
State Appellate Defender Office
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