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August 7, 2004 - St. Paul Pioneer Press (MN)

Ruling Could Allow Longer Sentences To Be Challenged

COURTS: Minnesota Appeals Court Cites A Supreme Court Ruling In Ordering New Hearings.

By Todd Nelson

Thousands of Minnesota defendants serving stiffer prison terms than state guidelines require will probably challenge those sentences under a recent U.S. Supreme Court decision that has judges, prosecutors and defense lawyers scrambling.

A preliminary review has found the state's sentencing guidelines are safe from a major overhaul, according to two members of the Minnesota Sentencing Guidelines Commission, which is to submit a report on immediate effects of the decision to Gov. Tim Pawlenty today.

But the judicial system will have to come up with new procedures for conducting trials where longer-than-guideline sentences are sought, the members said. The number of prisoners affected is unclear, but there are nearly 2,500 defendants convicted between 2000 and 2002 who are expected to challenge their sentences.

The confusion, gripping federal courts nationwide as well as state court systems where guidelines are used, stems from a June U.S. Supreme Court ruling that found that Washington state's sentencing guidelines are unconstitutional. The court in its Blakely v. Washington decision invalidated the guidelines because they allowed a judge, rather than a jury, to determine whether aggravating factors existed to justify increasing a defendant's sentence.

The Minnesota Court of Appeals, citing Blakely, has ordered new sentencing hearings for a Washington County sex offender sent to prison for 10 years beyond the maximum and a Hennepin County sex offender sentenced to 40 years in a case where the guidelines called for just less than six years. In Ramsey County, a convicted sex offender this week challenged his sentence and had the 139-year term cut to nine.

The decision is a hot topic in legal circles.

"It's so new we're just really trying to absorb it," said Kathleen Gearin, assistant chief district judge in Ramsey County. "We're in the same boat as everyone around the country, saying, 'What is this going to mean?' "

That's the question on the minds of thousands of inmates serving increased sentences. Ben Butler, an assistant state public defender, said he and his colleagues anticipated most of the nearly 2,500 defendants who had received upward departures from 2000 to 2002, and unspecified numbers before and since, would attempt to challenge the legality of their increased sentences.

"We are getting a lot of issues from inmates, from former and would-be clients," Butler said. "We are going to be hearing from, I would guess, the vast majority of people who were sentenced to upward departures since 2000, if not the last 10 years. The word is definitely out that there's a new case out there, and that people may be entitled to some relief because of it."

Among the unknowns is whether judges will apply the Blakely ruling retroactively, to defendants whose cases were not on appeal when the Supreme Court issued its decision.

Minnesota's sentencing guidelines differ enough from Washington state's to remain constitutional with modifications, said Darci Bentz, a public defender in the 5th Judicial District and a sentencing guidelines commission member.

Minnesota judges have the discretion to impose a longer sentence based on a finding of aggravating factors such as particular cruelty or use of firearms in a crime, Bentz said. Federal sentencing guidelines, which resemble those in Washington state, require judges to impose longer sentences when they find that such aggravating factors exist.

"We don't view our guidelines as being unconstitutional," Bentz said of the commission's short-term review.

"It's going to require some fixing, but it's not going to be far-fetched," said Steven Borchardt, sentencing commission chairman and the Olmsted County sheriff.

Hennepin County Attorney Amy Klobuchar said her office had 28 cases in which defendants were appealing convictions or seeking new sentences after the Blakely ruling.

Ramsey County has 21 such cases, including 15 before the Court of Appeals, County Attorney Susan Gaertner said.

Hennepin County District Court has established new ways to handle cases in light of the Blakely decision, Chief Judge Lucy Wieland said. In new cases, defendants in plea bargains must waive their right to a jury trial on aggravating factors and give sworn statements concerning those factors. Defendants who pleaded guilty before Blakely and return for sentencing can agree to such a waiver or withdraw their guilty plea.

Cases might involve two trials before one jury, the first to determine guilt, the second to address aggravating factors.

"It's these few cases that do go to jury trials that present the challenges," Wieland said.

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