Blakely Issues

InBlakely vWashington,542 US 296 (2004), the Court held that judicial factfinding could not be used to enhance a guidelines sentence.Such facts must be found beyond a reasonable doubt at trial.Originally our supreme court foundBlakelyinapplicable to Michigan's indeterminate statutory guidelines sentencing system,People v Claypool, 470 Mich 715 (2004).After much criticism based on the fact that this critical ruling was issued without briefing or argument of the issue, the court granted leave to fully assess the issue.InPeople v Drohan,475 Mich 140 (2006) andPeople v McCuller,475 Mich 176 (2006)(june'06), the court held that under Michigan's indeterminatesentencingsystem the maximum sentence is not determined by the court but is set by law - Michigan's guidelines system merely creates a range within which the trial court sets the minimum.(McCuller was later vacated and remand for reconsideration by theUnited StatesSupreme Court - see below).BlakelyandBookerfound a violation where the jury verdict alone did not authorize the sentence imposed - the judge acquired authority to impose the given sentence in those cases only through a judicial finding of some additional fact. The court held that in Michigan the jury verdict generally authorizes a sentence up to the statutory maximum. Justice Cavanagh concurred in the result inDrohanbut inMcCullerheld that prosecutors should charge aggravating factors in the information and request a special jury verdict.Intermediate Sanction Cell Issue.Justice Kelly, dissenting inMcCuller,would hold that when intermediate sanction cells are involved, the intermediate sanction is the "statutory maximum" forBlakelypurposes. She would invalidate Michigan's guidelines system. The court granted leave in November, 2006 in two cases to assessBlakelyin the intermediate sanction cell context and to determine whether a defendant can waive the issue by not objecting to the facts at issue (those facts that should be proved to a jury to justify departure perBlakely) when they appear in the presentence report.People v Harper,477 Mich 933 (2006)(nov'06)andPeople v Burns,477 Mich 933 (2006)(nov'06).See below.

InPeople v Uphaus,275 Mich App158 (2007)(april'07),the Michigan Court of Appeals issued a published decision jumping the gun on the supreme court's leave grants inHarper andBurns, and holding thatApprendiandBlakelydo apply in Michigan to prohibit judicial fact finding to be used to justify an upward departure from the intermediate sanction cell limitations imposed by MCL 769.34(4)(a). The case was later held in abeyance by the supreme court (No. 133928, June 22, 2007, 733 NW2d 21) and then reversed, consistent with the decision inPeople v Harper,479 Mich 599 (2007).People v Uphaus,480 Mich 939,November 21, 2007, No. 133928.

InWashingtonv Recuenco,548 US 212 (2006)(june'06),the Court held that failure to submit a sentencing factor to the jury, where required underBlakely,is not a structural error.The failure to submit to a jury the issue of whether a firearm was a deadly weapon is a matter that is subject to harmless error analysis in this case.

Cunningham v California,549US 270(2007)(jan'07). The Court, in a 6-3 decision, re-affirmed it's decisions inApprendi v New Jersey,530 US 466 (2000) andBlakely, invalidating judicial factfinding in sentencing under California's relatively new Determinate Sentencing Law (enacted in 1977).Under the DSL, crimes are punishable by a low, middle, or upper term sentence (here, for "continuous sexual abuse of a child," those amounts were 6, 12, and 16 years respectively). The court found that in Cunningham's case the jury verdict alone limited the permissible sentence to the middle number, 12 years. Additional factfinding by the judge, including victim vulnerability and Cunningham's violent conduct, resulted in a 16 year sentence. The imposition of a higher sentence after judicial factfinding was in violation of Cunningham's right to trial by jury underApprendiand Blakely.