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June 25, 2004 - The Spokesman-Review (WA)

Only Juries Can Give Criminals More Time

Ruling Stripping Judges' Power May Affect Existing Convictions

John Craig, Staff writer

A U.S. Supreme Court decision Thursday in a Grant County, Wash., case stripped judges of independent power to sentence defendants to longer-than-standard prison terms.

Aggravating factors used to justify extra-tough sentences now must be determined by juries, not judges. Defendants may waive that right, but a guilty plea alone is not sufficient, the high court said.

The 5-4 decision could eventually affect hundreds, if not thousands, of existing convictions in Washington and countless more in at least eight other states and in federal courts.

Already the ruling is forcing judges to reconsider how they conduct business.

"You may want to look at (the ruling) fairly soon if you are handling any criminal sentencing matters," Spokane County Superior Court Judge Sam Cozza advised jurists around the state in an e-mail Thursday morning.

Cozza, chairman of the Criminal Law and Rules Committee of the state Superior Court Judges Association, predicted the ruling will "create some major issues" for the association, the state Sentencing Guidelines Commission and the Legislature in coming months.

Thursday's decision springs from another 5-4 ruling in June 2000, when the Supreme Court held that a defendant's constitutional right to a jury trial required all facts used in sentencing to be determined by a jury or admitted by the defendant. At issue was a New Jersey law that allowed a judge to increase standard penalties if a crime was motivated by hate.

In that case, Charles C. Apprendi Jr. fired shots into an African American family's home and pleaded guilty to second-degree possession of a firearm for an unlawful purpose. The normal penalty was five to 10 years, but a judge gave him 20 even though Apprendi didn't admit the crime was racially motivated.

In the Grant County case decided Thursday, Ralph H. Blakely Jr. pleaded guilty to kidnapping his estranged wife, Yolanda, in 1998.

Hoping to keep her from divorcing him, Blakely bound her with duct tape and forced her at knifepoint to get into a wooden box in the bed of his pickup in the presence of their 13-year-old son.

Blakely forced his son to follow in another car by threatening to shoot the boy's mother with a shotgun.

The boy escaped at a truck stop in Moses Lake and called for help, but Blakely proceeded to a friend's house in Montana.

Yolanda Blakely was freed and her husband was arrested when the friend called police.

Ralph Blakely pleaded guilty to reduced charges of second-degree kidnapping involving domestic violence, and to use of a firearm in the crime.

Blakely faced a standard sentence of 49 to 53 months in prison, but Grant County Superior Court Judge Evan Sperline gave him 90 months.

Sperline justified the three additional years on grounds that the crime involved "deliberate cruelty."

The Sentencing Reform Act that established standard sentencing ranges allows judges to go above or below the guidelines when they find special circumstances such as unusual cruelty, breach of trust or unusual vulnerability of a victim. Those findings must now be made by juries.

Juries already make similar sentence-boosting determinations about whether defendants used firearms or sold drugs near a school.

In cases settled by pleas instead of jury verdicts, judges may have to summon juries for "mini trials" on aggravating factors if they want to impose exceptional sentences, Cozza said.

The U.S. Supreme Court said its decision will apply only to future cases in federal courts, but Cozza said the Washington Supreme Court could apply it retroactively.

"It's a very large unanswered question" that could take months to resolve, he said.

Eventually, Cozza speculated, the state Legislature "will have to come up with some kind of a fix."

The impact could be huge if the new standard is applied to old cases. According to the Sentencing Guidelines Commission, Washington judges imposed non-standard sentences in more than 5,000 cases over the past five years.

The commission said 3,024 defendants got harsher-than-standard sentences in that period, while 2,011 got less than the guidelines prescribed.

Just last week, Spokane County Superior Court Judge Neil Rielly gave Frank P. Mann at least 15 years more than guidelines called for in a child-rape case.

Other examples of exceptional sentences in recent years include Shadle Park rapist George Grammer; Abdulwahab Al-Jazairy, who killed a teenage girl in a July 2002 vehicular homicide; and Nine Mile Falls special education teacher Carl J. Schubert, who was convicted last July of sexually abusing a mentally disabled student.

Sixteen other states have adopted guideline sentencing systems since 1980, according to the Davis Wright Tremaine law office in Seattle.

The firm said states with systems that work the same way as Washington's are Alaska, Michigan, Minnesota, North Carolina, Ohio, Oregon, Pennsylvania and Tennessee.

Those with similar systems include Colorado and Arizona, according to the law firm's analysis.

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