Blakely v. Washington - The Effect on Oregon Sentencing

Article by Greg Silver 

In June 2004 the United States Supreme Court decided Blakely v. Washington, 542 US 296 (2004). That case clarified the Court’s rule from Apprendi v. New Jersey, 530 US 466 (2000) that said that any fact – other than a prior conviction – that increased a defendant’s sentence beyond a statutory minimum had to be proven to a jury beyond a reasonable doubt.

Oregon Sentencing Prior to Blakely

Oregon’s sentencing guidelines – which took effect in 1989 – did not require jury findings for increased sentences. Any person found guilty of a felony (except capital and Measure 11 offenses) was sentenced based on their position on the sentencing guidelines grid. The grid ranked the crime seriousness from 1 to 11 on the vertical scale (with 1 the least serious felony and 11 the most serious), and the defendant’s criminal history from A to I on the horizontal scale (with A meaning 3 or more felonies against people and I meaning someone with no criminal history). The point where those two lines intersected on the grid determined a person’s “presumptive sentence” (the sentence proposed by the grid).

The presumptive sentence could be doubled, though, if a judge found “substantial and compelling” reasons to do so. Because a judge and not a jury could find factors which could increase a person’s sentence, Oregon courts reexamined sentencing in light of Blakely.

The Initial Oregon Response to Blakely

As a result, the Oregon courts held that “the upward departure provisions of the Oregon sentencing guidelines… are unconstitutional [,]” State v. Sawatzky 195 Or App 159 (2004) and clarified that the statutory maximum for Blakely purposes is the presumptive gridblock since any upward departure would require additional findings. State v. Dilts 336 Or 158 (2004). What has this meant for people convicted under the sentencing guidelines? The answer is, “it depends.”

The Court of Appeals has vacated (set aside) the sentences of more than 100 people in cases where a judge made findings to increase the sentence above the presumptive. Even if those people hadn’t “preserved” that issue for appeal (in other words, objected at trial to the increased sentence), the Court found that the departure was a “plain error” and ordered the trial court to correct it. Those cases have been remanded to the trial courts for resentencing.

The Court is not vacating departure sentences in all cases though. The Court has declined to review unpreserved claims of error when the trial courts imposed consecutive sentences arising from a single criminal episode. And the Court rejected the Blakely claims of a post-conviction relief petitioner, declaring that the principles announced in Blakely and Apprendi do not apply retroactively in that type of proceeding (post-conviction relief proceedings).

No Oregon appellate court, though, addressed the question of what the procedure was to be when a sentence was remanded for “Blakely” reasons. Was a judge limited to the presumptive sentence? Could the trial judge impanel a sentencing jury to comply with Blakely?

The Most Recent Developments and the Near Future

On July 7 of this year, the Governor signed Senate Bill 528, otherwise known as the “Blakely fix” bill. This new law not only creates provisions for sentencing juries in Oregon, it makes them retroactive. It allows a trial judge to impanel a jury in cases that are remanded for resentencing under Blakely, and allows a judge to impanel a jury on any case in which a sentence has not yet been imposed.

Those parts of the law, though, are already being challenged. On September 9 the Oregon Supreme Court will head arguments in two cases that question whether a judge can impanel a sentencing jury on a case remanded for resentencing, and whether the new law can apply retroactively to crimes allegedly committed before the bill was passed. Those decisions will go a long way toward determining the effect of Blakely in Oregon.

Greg Silver is the Chief Attorney for the Metropolitan Defender in Portland, Oregon. This article originally appeared in the Summer 2005 Justice Matters.