*1 although his responded briefs. And he
questions argument, on this issue at oral preserve
was too late to appeal. his claim for Alaska, University Adamson Cf. (Alaska 1991).
It argue is well-settled that "[flailure to
point constitutes an abandonment of it." Inc., Investigations,
State v. O'Neill 1980). Even if we were to (as did) accept Borough Stevens's claim give
that AS 29.85.210 Borough does not authority ordinance, to enact a noise we can
not, in the absence of briefing, adversarial
fairly larger resolve complex and more
question Borough of whether any has
authority under the Alaska Statutes to issue
the ordinance. argues
Stevens per we should supplemental
mit briefing on this issue. But support
the cases he cites in argument of this unrepresented
involve either an litigant or a who,
party reason, for whatever failed to
respond at all to a motion oppos filed
ing party. Stevens represented
counsel, and he filed briefs in two cases. briefs,
When he filed those he had notice of arguments
all the rulings made in dis
trict court.
Accordingly, in consideration of the Peti-
tion Rehearing July filed on
IT IS ORDERED:
The Petition for Rehearing is DENIED.
Entered at the direction of the court.
Troy SMART, Appellant, S. Alaska, Appellee.
STATE
Jayme Sobocienski, Appellant, Alaska, Appellee.
State of A-9025,
Nos. A-9037. Appeals
Court of of Alaska.
Oct. *2 brief) Linda (opening and
Quinlan Steiner brief), De- Public Assistant (reply K. Wilson (opening fenders, K. Brink and Barbara brief), brief) Pub- (reply Quinlan Steiner and Defenders, Appellant Anchorage, for the lic in No. A-9025. Advocate, Anchorage, Fink, Public
Joshua Appellant. aligned with curiae as amicus Terrell, Attorney Gen- Assistant Timothy W. Ap- eral, Special Prosecutions Office Marquez, David Anchorage, and W. peals, Juneau, General, Appellee for Attorney A-9025. in No. Seattle, Miner, Washington, and
David W. Advocate, Anchorage, Fink, Public Joshua in No. A-9087. Appellant for the Attorney Terrell, Assistant Timothy W. General, Special Prosecutions Office Marquez, and David W. Anchorage, Appeals, Juneau, General, Appellee Attorney in No. A-9087. COATS, Judge, and Chief Before: STEWART, Judges.
MANNHEIMER
OPINION
obliged
is therefore
apply
adopted by
Alaska
Court.
MANNHEIMER, Judge.
Having concluded
that we must
*3
296,
Blakely Washington,
v.
542 U.S.
test,
retroactivity
Alaska
question
next
is
2581,
(2004),
124 S.Ct.
United States Court held un- applied should be retroactively. We con- Amendments, der the Sixth and Fourteenth component clude that one of Blakely-its a criminal right by defendant has the to trial requirement proof beyond of a reasonable
jury-including right proof to demand doubt-is essential to a fair and lawful deter- beyond a any reasonable doubt-on issue of mination of a defendant's sentence under (other conviction) prior fact than a that will presumptive Alaska's sentencing law. Ac- penalty increase the maximum to which the cordingly, we hold that component of may subjected. defendant Blakely applied must retroactively. Finally, given question presented importance
The the central to this of Court is guarantee jury jury
whether the trial in our recognized trial
Blakely Washington justice system, applied should be ret- we conclude that if one or
roactively-that is, aggravators more in a case whether must be reliti- this Court gated because grant Blakely should of a error in relief to a the stan- defendant whose dard proof, imposed
sentence was the defendant violation of is entitled
if have a disputed the defendant's decide the already aggravators. conviction was final (June 2004).
when was issued Part I: question
Our answer to this parts. has two What Law Governs This Court's Decision? First, identify we must gov- the law that Are state by courts bound retroactivity inquiry-the legal
erns our test for assessing test announced in v. Lane retroactivity when a a federal constitutional prisoner seeks the new Blakely. decision like benefit of rule? Supreme The Alaska adopted Court has Supreme The Alaska Court has re retroactivity test modeled after the test en peatedly question whether, addressed the dorsed United States new rule is recognized by created or in Linkletter v. Walker.1 But in Teague v. judicial decision, that applied rule should be
Lane, 109 S.Ct. 103 is, retroactively-that applied to defendants (1989), LEd.2d 834 the United States Su whose already convictions were final before preme Court abandoned the Linkletter test the rule was announced.2 test-i.e, favor of a stricter one
grants (For retroactivity in discussion, fewer purposes instances. of this a criminal conviction is "final" if there is no further argues The State suprema- under the possibility of direct review or certiorari re- cy Constitution, clause of the federal we are view of Banks, the conviction. See Beard v.
now apply bound to test when 406, 411, 2504, 2510, 159 assessing whether a federal constitutional de- (2004); Bohlen, Caspari L.Ed.2d 494 510 cision should be retroactively in state 888, 390, 127 L.Ed.2d criminal cases. We conclude that the State (1994).) 286 wrong. here, For the reasons
we The Alaska conclude that the applies only Court most re corpus federal habeas litigation, cently summarized our retroactivity state's states, test in State v. Semaneik.
does not bind the and that this Court State, (Alaska Semancik,
1. See Judd
(Alaska
482 P.2d
277-78
2. See Statev.
99 P.3d
1971),
2004);
adopting
the test set
State v. Wickham,
forth in
reliance a retro- justice of
on the administration Teague deci- understand In order new rule. active context sion, understand one must 2004). Teague was purpose it arose.
Semancik, which by the feder- created problem to ameliorate after is modeled This test act which Act of 1867-an Corpus al Habeas *4 Supreme States United endorsed test authority grant to gave federal 618, Walker, U.S. in Linkletter Court convicted prisoners to corpus relief habeas 1741-42, 14 L.Ed.2d 636-38, rights their federal court if in state crimes has been (1965). And, this test because been violated. had court, this supreme by our state adopted this Grinols obliged this Court presumptively As Court inaugu Congress rule State,3 a new deciding whether States the United
test litigation relief retroactively. post-conviction rated modern should Prior Corpus Act. Habeas passed the when it an- Supreme Court States But the United Act, there was essen passage of to the Teague v. nounced a new seeking habeas only ground tially one
Lane, U.S. the court the assertion corpus relief: (1989). currently In the cases L.Ed.2d judgement criminal which entered (and all we us, argues that the State before jurisdiction to do lacked prisoner against courts) follow obliged to are now state other Act, prisoner a state the 1867 But under so. we retroactivity test whenever in fed conviction their eriminal attack could potential decide any right by alleging a violation eral court the Sixth as law-such rule of federal a new law.4 federal guaranteed announced trial Amendment 1960s, States the United Blakely. In the 1950s of decisions a series issued Supreme Court misinter- has the State conclude that We procedural expanded significantly Teague deci- Although the Teague.
preted defen criminal to state rights guaranteed retroactivity, with the issue deals sion aAs Constitution. the federal dants under authori- limit the was not intended fre began to resort result, prisoners state retroactively apply rules ty court state courts, invoking the federal quently to the reviewing its own law when constitutional challenge their state convictions.5 Corpus Act to Habeas Rather, as we convictions. criminal state's intend- here, was Teague decision explain Supreme by the States United As detailed courts to authority of federal limit the ed to Sykes,6 the Wainwright v. Court in federal convictions criminal state overturn procedural various responded with of Court purpose corpus proceedings.
habeas litiga corpus this habeas forestall rules to intru- minimize federal is to Teague test consideration tion, federal at least to defer proceedings-by criminal into state sion until those claims claims prisoners' of state in which a narrowing the instances greatly courts. the state presented had been to overturn is authorized court federal limita jurisdictional rules were These a rule of on based criminal conviction state courts; authority the federal until tions into existence not come that did 53 LEd.2d 6. 433 App.2000). P.3d 600
3. 10 Grinols, at 610. Sykes, Wainwright also Id. See L.Ed.2d 594 97 S.Ct
rather,
equitable
these rules were
restric
dural
governing
rules
raising
preser-
tions on the federal courts' exercise of their
vation of that federal claim.
corpus authority-restrictions
habeas
de
violation of if, rights striking a balance between competing socie procedural because of a default under state tal interests: (eg., rules failure to make a contemporane objection trial,
ous or failure to raise the A [federal] habeas court's decision ... appeal), issue on direct prisoner to review the prisoner's merits of a state litigating barred from this claim in state claim, prisoner when the has court.8 The exception to this rule of applicable failed to follow *5 exclusion, Supreme the declared, Court was rules in raising claim, the implicates two if prisoner the state good could show "cause" competing sets of concerns. On the one failing for to properly raise the issue in the hand, Congress' there is expressed inter- court, resulting state "prejudice" from est in providing a federal forum for the prisoner's the violation of the rights.9 federal vindication of the rights constitutional of although But Sykes the preju- "cause and prisoners. state There can be no doubt dice" rule generally operated to restrict fed- that{,] in enacting § [28 U.S.C.] Con- corpus eral habeas litigation, the rule encour- gress sought interpose to the federal aged habeas litigation in respect. one Under courts between the States people, and the rule, Sykes the prisoners state remained free guardians as people's the federal challenge to their state criminal convictions rights-to protect people the from uncon- by invoking a new right federal that was stitutional action. [Citation omitted]
recognized prisoner's the conviction be- after hand, On the other there is the State's came final. This result followed from the that, integrity interest the
fact of its if the rules and right federal truly was "new" (in proceedings finality the and the judg- sense that it merely was not its a
straightforward ments, already interest recog- that would be under- rights), then, by definition,
nized prisoner mined if the federal courts were too free to good
had cause for asserting not this new ignore procedural forfeitures state right federal until it was announced. justice court. The system eriminal in each of the 50 States is ... structured to re-
This precise was the holding in Reed v.
Ross, questions solve all incident to 468 U.S. deter- [the] 82 L.Ed.2d (1984) guilt innocence], mination [of including Supreme Court declared judicial constitutionality procedures
when the decision that a established prisoner's leading up
state to the federal claim verdict.... [Wle was not issued
until prisoner's long after the recognized that conviction ... became considerations of final, prisoner (under comity would have "cause" and concerns orderly for the admin- ) Sykes failing for comply to proce- with state justice istration of eriminal [sometimes] re- equitable
7. See Reed v. Ross,
court's
discretion in the use of this
468 U.S.
(1984):
82 LEd.2d 1
"Our decisions have
power?"
uniformly acknowledged that federal courts are
empowered
§
under 28 U.S.C.
2254 to look be-
8.
86-87,
at
97 S.Ct. at
Sykes,
2506.
yond
a state
forfeiture and entertain a
prisoner's
state
contention that his constitutional
87-89,
Ross, 104S.Ct. courts. in the state came final comi federal-state for its concerns Despite above, held that Ross judgements, we finality state court As
ty proce- normal in favor cireumvents the issue a claim resolved such Court the Ross preju- the "cause to entertain bar erected dural allowing the federal Sykes. Wainwright v. corpus requirement claim. dice" habeas prisoner's plurality declared requirement Sykes But held that Court petitioner to raise fails no difference a defendant made met when "cause" failing good cause of that (Teague) the basis could show if constitutional earlier-because, reasonably not claim was raise his federal claim constitutional time.11 al- at the corpus lawsuit to the defendant habeas Teague's known if forward, not Teague would go lowed later, years five A mere any relief. entitled all but Teague, a decision decided authority grant- corpus the habeas
abrogated the rea- Teague plurality, According courts Ross. the federal ed to relief is that not entitled Teague was son nor- should rule new federal opin- lead O'Connor's (Technically, Justice are who applied to defendants mally not be plurality of represented ion in criminal con- attacks pursuing collateral However, Court, majority. new already final when the were victions that subsequently been has opinion plurality litigation, announced. rule was majority of the by a clear adopted *6 wrote, "considerations O'Connor Justice Parks, See, 494 U.S. eg., Court. Saffle compelling": significant and (1990); finality [are] L.Ed.2d 110 S.Ct. McKellar, 110 S.Ct. {[that
Butler rules constitutional Application of (1990).) L.Ed.2d 347 a convic- at the time in existence not were] seriously undermines final tion became Teag and Ross years between the five essential finality which is principle Supreme Court
ue, membership of justice sys- of our criminal operation decision- a five-to-four was changed. Ross law is finality, the criminal tem. Without in remaining dissenters by ef- of its deterrent of much deprived pare back votes to had mustered Ross defendants, one, criminal not "No fect.... corpus relief habeas scope of the federal society as a system, not judicial not the in Ross. granted judgment [that is benefited whole accomplished Teague decision tentatively togo that a man shall provides] interpretation of by renouncing goal, day every jail today, but tomorrow Ross, rather but adopted good "cause" shall incarceration continued his thereafter rule retroactivity rule-a announcing a new litigation." subject to fresh from federal courts essentially barred at 1074-7 109 S.Ct. Teague, 489 U.S. prison- corpus relief to state granting habeas 5.12 rules of on new claims were based whose ers prisoners these law, though words, premised is In other (as defined good cause could demonstrate of a criminal litigation if the principle ) claims raising their for not Sykes and Ross in exis- that was the law complied with case earlier. judge- time, if the criminal at the tence final, should be there then has become ret- ment words, Teague addresses In other compel a re- which decisions, very few cireumstances
roactivity of federal judgement based eriminal prison- examination of a state context specific in the but concurring and dis- Quoting 14-15, Harlan's Justice at 2909- U.S. at States, Mackey v. United senting opinion in 28 LEd.2d seeks, developments but instead the purposes on new in constitutional law. fendamt which the writ
A collateral attack on a corpus judge habeas final criminal is made allowed, ment should be Justice O'Connor available. concluded, only if the new constitutional rule always corpus Habeas has been a collat- "[puts] primary, certain kinds of private indi remedy provid[es] eral [that] an avenue for vidual power conduct of [the [overturning] judgments that have become regulate through states to legisla otherwise final. It designed is not as a tion]" or unless the new constitutional rule substitute for direct [of review a criminal "requires the procedures observance of ... this, conviction]. [Because of the] interest implicit that are concept of ordered in leaving underlying] litigation [the in a liberty".13 repose, subject ... not to further According Teague plurality to the opinion, judicial revision, may quite legitimately category this second is limited to new rules found ... outweigh[,] in ... most in- "improve which the pre-existing fact-finding stances[,] the competing readju- interest procedures" to such an extent that their ab dicating [criminal] convictions according to "implicate[s] sence the fundamental fairness legal [of all the] standards in effect when a trial" procedures [a] 14-"new without petition habeas is filed.
which the likelihood of an accurate conviction
[Rather,]
sounder,
it is
in adjudicating
seriously
diminished".15
petitions,
habeas
generally
the law
It is true that section
IV of the
prevailing at
the time [the defendant's]
decision contains a discussion and criticism of
conviction became final....
prior
the Court's
decisions concerning retro-
activity-in
particular,
the test
announced
Teague,
305-06,
thority of the federal courts to overturn state ered in determining proper scope of ha- judgements: court And, beas above, review."19 as we noted retroactivity [The doctrine of] for cases on Justice O'Connor declared that "consider collateral review responsibly [can] be de- of finality significant ations [are] compel and only by termined focusing ... on the ... ling ... in the criminal [law]context".20 adjudicatory process in which cases [these] arise. The relevant reference, Quoting Mishkin, in Professor Paul J. Justice frame of words, other is not purpose the new O'Connor problem stated that was "not
[constitutional] rule whose the de- so much prospectivity one of retroactivity benefit 307, Teague,
13. 489 U.S. at Quoting 109 at extensively S.Ct. 1073 17. from Justice Harlan's (quoting concurring Justice Harlan's and dissent- concurring dissenting opinion Mackey in ing opinion 692-93, Mackey, States, U.S. at 667, 682-83, 689, United 1180). S.Ct. at 1171, 1175, 1178, (1971). 28 LEd.2d 404 Teague,
14.
problem was habeas "federal have merit.... could obtain prisoners
state otherwise go [an] behind corpus [review] at 1084 109 S.Ct. at Teague, 489 U.S. Justice of conviction".22 judgment
final added). J., (Brennan, dissenting) (emphasis concluded O'Connor the States upon imposed costs [tlhe Supreme (b) Why we conclude of con- rules of new application Teague retro- not intend did Court gener- ... corpus law on habeas stitutional binding on state activity rule to appli- of this benefits outweigh the ally far ways application many In cation.... may review on collateral to cases new rules in which context Having reviewed enjoining of than intrusive be more decided, closely ex- having Teague was continually prosecutions, criminal decision, we the text amined resources to marshal the States forces that divides to a fundamental now turn whose prison defendants keep order the United States Did this Court: then-exist- appeals conformed trials to be bound the states intend for Court Further- standards. ing constitutional retroactivity test? Isaac, Engle v. more, recognized in as we Court, argues this State understandably frus- In its brief courts are "Isltate existing law, faithfully apply they trated a federal courts' Teague governs to have law
constitutional announced proceed- discover, during a [habeas] federal constitu-
court rules of of new commands."
ing, (such new interpretation the new as tional an- jury trial Amendment 109 S.Ct. the Sixth
Teague, 489 U.S. Coats, in his Judge Blakely). Isaac, 128 n. nounced Engle v. (quoting n. 71 L.Ed.2d interpretation adopts dissenting opinion, 102 S.Ct.
(1982)). Teague. said, reasons, Justice O'Connor For these conclusion, Judge both reaching this adopting Justice favored Teague plurality rely the United and the State Coats retroactivity for of narrow doctrine Harlan's in Ameri- decision Supreme Court's States review. habeas on federal cases Smith, Associations, Inc. v. Trucking can at 1075. U.S. at Teague, 489 L.Ed.2d 148 Brennan, Reed had authored who Justice Trucking, In American before, dissented years a scant five v. Ross stated: *8 He, too, clearly Teague. in the decision from consti- whether [of] determination The not retroac- Teague saw that the is retroac- of this Court decision tutional se, seope of federal rather the tivity per but is, to con- applies [it] whether tive-that con- criminal of state corpus review habeas the before that occurred or events duct victions: of federal a matter decision-is of the date Court, without of this Today plurality generally courts [Although] state law. argument, oral briefing and benefit the retro- authority to determine have the for federal threshold adopts a novel ... [t]he decisions activity of their own ha- convictions review of state of a applicability would for plurality corpus.... [The beas every as ... bit this Court decision courts the preclude time the first federal issues of question [the as federal of a much review considering on collateral from Id. S.Ct. 309-310, Teague, 489 U.S. Mishkin, The Foreword: (quoting Paul J. Writ, Court, Process and the Due High Great the Law, L.Rev. 79 Harvard Time and (1965)).
substantive law resolved in the decision tive of a new constitutional rule.
itself]. Teague The test was consciously designed promote to comity federal-state
Id.,
pre
and to
clude that this obliged, by Court is law, apply Teague test when we decide Supreme As the Court later grant relief to defendants who Netherland, O'Dell v. 521 U.8. were sentenced in violation of but 1969, 188 (1997), L.Ed.2d 851 bottom, "At whose convictions became final before the Teague doctrine reasonable, validates Blakely decision was issued. good-faith interpretations of existing prece by courts[,] dents made state though Trucking
But American merely says that, supremacy clause, interpretation [the state court's state of the law is] shown to any contrary must follow rule of to later retroactivity im- decisions." U.S. at 117S.Ct. at
posed 1978.26 by on them Supreme Court. The underlying question that remains to be ad- words, In other Teague ap- decision question dressed-the that American pears to derive from the same concerns Trucking does not answer-is whether about federal-state relations that motivated Supreme Court intended the Teague retro- Wainwright Sykes and the various other activity test binding on the states. decisions in which Supreme placed Court It is true that Justice opinion O'Connor's equitable authority restrictions on the of fed- Teague contains a discussion princi eral grant courts to corpus habeas relief to ples of retroactivity in general-i.e., prin prisoners. state Teague does not address ciples employed identify situations authority courts; rather, of state which it is fair to or to withhold a new restricts authority of federal courts to rule of law in criminal cases that have al overturn state criminal convictions. ready been However, concluded. as we ex interpretation This of Teague is confirmed plained in some detail in preceding see by later decisions of the Court. tion of opinion, Justice O'Connor ended repeatedly has held that this discussion declaring ultimately, Teague's principle of non-retroactivity "is not question had to be an jurisdictional in the sense that federal courts swered examining purposes "the for which must raise and sponte decide the issue sua ". the [federal] writ of corpus habeas is made Bohlen, Caspari v. 8883,889, available".23 127 LEd.2d 286 explicitly decision states that Rather, Teague is a defense that problem plurality wished to government a state may interpose in federal
resolve was "not so much prospectivi one of corpus habeas litigation, prevent a federal ty or retroactivity of new [a constitutional] court from reaching the merits of a state rule", but problem rather of defining prisoner's constitutional claim. the situations in which prisoners might equitably demand "federal corpus habeas Although always the federal courts go *9 [review] to behind [an] otherwise final the discretion to consider whether to abstain
judgment of conviction".24 To resolve this from granting prison- habeas relief if a state problem, Teague the plurality fashioned er's claim Teague fails the test for retroactiv- test greatly that narrowed ity, the situations in a federal court obliged becomes
which prisoners state could obtain retroac Teague the if the state raises the 306, Teague,
23.
489 U.S.
309,
109
Teague,
S.Ct. at 1073.
25.
24 (without engaging in Bohlen, assumed sylvania court timely fashion . in a Teague defense should rule analysis) the Mills 389, at 953. Teague 114S.Ct. 510U.S. Banks, the but retroactively to 389, n. Moran, 397 509 U.S. v. See Godinez jury instructions the court concluded 8, 321 2680, 125 L.Ed.2d 2685 n. 8, 113 S.Ct. did not violate Mills.29 Banks's case 222, Farley, 510 U.S. v. (1993), and Schiro 47 783, L.Ed.2d
228-29, 114 S.Ct. petition for writ filed a federal Banks then forfeits the a state (1994)-both holding that court district federal corpus. The of habeas fails to the state Teague if protection concluded relief, Third Cireuit but the denied timely in a defense assert case in Banks's jury instructions Youngblood, And see Collins manner. Mills, fact, and thus had, violated 2715,2718,111L.Ed.2d 110 S.Ct. U.S. sent Banks's death reversed Cireuit Third proceed (1990), Supreme Court where ence.30 prisoner's a state the merits to decide ed attorney the state's after claim litigation, constitutional the State federal habeas In this protection expressly waived the federal argued that Pennsylvania argument.
during oral of Banks's the merits not reach should courts right, because, was if Banks claim the au- Teague limits principle-that This under not retroactive rule was Mills but does courts
thority the federal therefore, test-and, the federal also authority of state courts-is limit the granting habeas from barred were courts decision Supreme Court's illustrated Third Cir But the to Banks.31 corpus relief Banks, in Horn apply to Teague did not (2002). concluded cuit L.Ed.2d 801 Pennsylvania Su case because Banks's prisoner who Pennsylvania Banks was on notions not relied had preme Court and sen murders of several convicted
was case; Banks's retroactivity when it decided his His convictions to death. tenced had reached instead, Pennsylvania court Pennsylvania by the were affirmed sentence argument.32 Mills of Banks's the merits petition for Court, federal and his Supreme that, circum these held Third Cireuit in October denied was writ of certiorari the federal stances, not bar Teague did 1987.27 reaching the merits from likewise courts 1988), (in June later Eight months argument.33 Banks's Maryland.28 Mills v. decided Supreme Court that, Mills, held Supreme Court Court. to the The case then went cases, unconstitutional it was penalty Banks, death In Horn v. (2002) ), unanimously agree (per jurors curiam require the 158 LEd.2d factor had been mitigating particular that a unanimously reversed Supreme Court jurors to consider allowingthe proved before of whether question the Third Cireuit deciding whether mitigating factor when Teague. The governed case Banks's penal the death should receive the defendant cases even in Supreme Court
ty. merits of a reach the courts where the state claim, prisoner's federal Millis, Banks Following the decision apply the obliged to remain court, in state relief post-conviction filed for if the restriction case his jury instructions that the arguing proce- raises this properly government Banks's case reached Mills. When
violated moves to Court, litigation the Penn- defense when Pennsylvania dural Cir.2001). (3rd Horn, 271 F.3d 30. Banks v. U.S. Banks, 542
27. See Beard 2508, 159 L.Ed.2d S.Ct. at 543. 271 F.3d 100 LEd.2d 28. 486 *10 384 Id. 541. 143, Banks, 656 540 Pa. v. 29. Commonwealth at 543. Id. 470 467, A.2d
25 State, 451, Banks, (Minn.2006); 272, 718 455 federal court. N.W.2d 122 114, v. Egelhoff, State 272 Mont. 900 P.2d 260, (1995); Palmateer, 267 Page v. 336 Or. present purposes, For thing 379, 133, 84 P.3d 136-38 Supreme
about the Court's in decision Horn Supreme
v. Banks gave is that Court no majority The of courts which have ad- Pennsylvania hint that the state courts com- dressed this issue have concluded that Teag- they mitted error when addressed the merits govern ue does not a state court's decision to of Banks's constitutional claim without first grant of a new consti- considering whether the Mills decision was tutional rule in post-conviction state relief Rather, Teague retroactive under the test. proceedings-that, instead, Teague binds Supreme declared the Third only federal courts in corpus federal habeas Circuit committed error when it addressed proceedings. the merits of Banks's claim without first People See Bradbury, 494, v. 68 P.3d 498 considering Teague issue. (Colo.App.2002) (asserting that a state court Banks, Court's decision as authority has the adopt a different retro- Moran, well as the Court's decisions Schi rule, activity so); declining but to do John ro, Youngblood, support all the conclu State, 400, (Fla.2005) son v. 904 So.2d 408-09 Teague sion that binds the federal courts ("As noted, courts in other states have state they prisoner's consider a state habeas courts are not Teague bound in determin corpus (assuming claim gov the state ing retroactivity of decisions. ... We con timely ernment Teague objection raises apply tinue to our longstanding analysis, Witt court), Teague federal but that does not bind provides which expansive more retroactivity the state courts. State courts remain free to standards than adopted those in Teague."); reach prisoner's the merits of a federal con State, Figarola 5746, v. 841 So.2d 577 n. 1 stitutional claim even when federal habeas (Fla. ("The App.2008) opin Court's corpus relief would be barred because of in Teague ion reflected that court's narrow Teague. ing view of the rule of corpus. habeas acknowledge We that the courts of several policy Teague considerations behind are other states have Teague held that necessarily the same as those for state governs litigation. state But of these relief."); post-conviction most court People v. assumed, simply courts have apparently Flowers, 218, 804, 138 Ill.2d 149 Ill.Dec. 561 issue, without examining Teague (1990) 674, N.E.2d (concluding 682 Teag- litigation controls state as well as federal applies only ue corpus federal habeas liti litigation. Warden, habeas See v. Johnson gation, but deciding adopt Teague as a 791, 407, (1991); 218 Conn. 591 A2d 410 law);, Mohler, matter of state State v. 694 State, 864, Whisler 290, v. 272 Kan. 36 P.3d 1129, (Ind.1998) N.E.2d ("Teague 1182 estab (2001); Hastman, 296 People v. 85 N.Y.2d retroactivity lished the standard for federal 265, 83, 88-89, 459, 624 N.Y.S.2d 648 N.E.2d reviewing corpus petitions habeas (1995); Russell, Agee 464-65 v. 92 Ohio St.3d relief judgments. from state State courts 540, 1048, (2001); N.E.2d 1046-47 Thom [adjudicating] claims for collateral review State, (Okla.Crim. as v. are free to set their own rules
App.1994); Hughes, Commonwealth v. independent State, Teague."); Brewer v. Pa. (2004); 865 A.2d State v. (Iowa 1989) 444 N. W.2d 81 (agreeing with Gómez, (Tenn.2005); 163 S.W.3d policy adopting it as a Taylor (Tex. 10 S.W.3d law); matter of state Taylor State ex rel. Crim.App.2000). (La.1992) Whitley, 606 So.2d
Among the state courts which have ad- ("[ adopt are not bound to
dressed the fact question standards."); there is a Whitfield, State v. 107 S.W.3d
concerning seope (Mo.2008) ("It Teague, only a few up to each state to held that binds the states. See determine apply whether to the rule set out Houston, (Minn.
State v. Teague, N.W.2d [or] continue to the rule 2005), recently ..., re-affirmed set out in Linkletter apply yet or to Danforth *11 question retroactivity controlling on determining was appropriate rule other
some corpus proceeding. in a state habeas rule constitutional retroactivity a new [the] long as the So review. on collateral
to cases Cowell, at 517. 458 N.W.2d that set than narrower is not state's P.3d People, 129 v. Edwards See also pass constitutional will Teague, it forth Tallard, 149 (Colo.2006), v. and State 981-82 State, Nev. muster."); v. Colwell (both (2008) 979-981 A.2d N.H. (2002) ("Teague is n. 41 & Teague possibility recognizing the courts court, than other controlling on this not cireumventing states, then does not bind es- protections constitutional minimum matter of state deciding, as a problem exceptions.... States by its two tablished rule). law, Teague apply the to protections greater provide are free ac- dissent, Judge Coats does his the Feder system than justice criminal their (with excep- decisions knowledge these Lark, v. requires."); State al Constitution de- Supreme Court's Washington tion (N.J.1989) A.2d 117 N.J. Evans, mentions he which cision State analogy be that, although the (concluding State, footnote). The long of a the end proceedings corpus habeas federal tween all of these however, explicitly contends proceedings relief post-conviction state Teague rule wrong, and that are courts types post-conviction the two imperfect, of whether the states does bind sufficiently similar litigation were ap- should be decisions federal constitutional retroactivity follow should court retroactively. plied court); case before rule, in the at least States argues that the United The State Evans, 154 Wash.2d
State Teague ret- for the intended Supreme Court ulti (2005) Teague is (holding that 627, 633 binding the states on roactivity rule to be consider mately "grounded of con- definition uniform national "a ensure relations", and that federal-state ations of According liberties". stitutional authori court's not limit state Teague does federal constitutional a uniform definition aon relief based grant post-conviction ty to rule concern- a uniform include rights must ). application of those application ing the retroactive cited in to the decisions In addition if states points out that rights. The State of the South regarding the words law paragraph, their own
preceding to follow are allowed Leapley, constitu- in Cowell of new Supreme Court the retroactive
Dakota post-con- seeking (§.D.1990), particularly are rules to defendants tional
458 NW.2d relief, states in different defendants viction this issue: on noteworthy and instructive differently. treated will be in the arose decision have different if the true that states It is cor- habeas interpreting federal context rules, seeking post- defendants through federal law, right granted
pus will meet law under state relief conviction states, including The various statutes.... results, depending on which with different rights of Dakota, state have created South litigation. But their governs state law Each through statutes.... corpus habeas Su- the United States is whether question it how to decide sovereign has the this. to forbid intended preme Court extraordinary rem- to this access will allow controls government edy. The federal above, moti- primary As we remedy in its access to permits
how pro- an effort Teague was behind vation establishes courts, Dakota and South comity, protect and to mote federal-state convictions, to habeas provide access limit- that will
grounds finality state criminal it was Simply put, to use the ability in our courts. of federal
corpus ing the that a Corpus to hold Act to overturn court] the lower Habeas [for
error new rules convictions based criteria on what
federal decision
described
O'Connor
This is how Justice
law.
application of
for retroactive
years later:
opinion three
proceeding
corpus
in a federal habeas
*12
Teague simply requires that a
con- Youngblood,
41,
state
U.S.
viction
[under review
federal
habeas
(emphasis
original).
al
[proceeding generally]
judged according
later,
A
years
few
Moran,
in Godínez v.
to the law in existence when the conviction
389,
8,
397 n.
113 S.Ct.
2685n.
became final.
(1998),
based the need for federal sought federal corpus habeas relief-and respect courts to by the decisions made this defense was forfeited if the state courts.") failed to timely assert it in a manner. primary If the purpose Teague behind is to Supreme The Court's decisions in Young- scope limit the corpus federal habeas re- blood, Moran, and simply Schiro are incon- convictions, view state criminal rather sistent with the State's assertion that than to uniformity achieve among of results Teague rule was intended to achieve nation- states, then expect one would the Su- uniformity wide application the retroactive preme Court not govern- to care if a state of federal By rules. allowing ment declined rights to assert its the State of Texas protection to waive the Teague-thus allowing the federal courts to Teague Youngbloodcase, in the by de- decide the prisoner's merits of a state claim claring had, that Nevada and Indiana relief, corpus habeas though inaction, through protection forfeited the claim would by Teague. otherwise be barred Teague in cases, the Moran and Schiro precisely And this is happened what in a case Supreme United States expressly earlier, we mentioned Youngblood, Collins v. countenanced non-uniform application of 111 LEd.2d 80 Teague restrictions on retroactivity. Supreme Young Court's decisions in Youngblood prisoner was a state who was blood, Moran, and Schiro confirm that seeking federal corpus habeas relief based on underlying Teague aim of is not to achieve a a new rule of constitutional law. Even uniformity states, among fifty results though Teague apparently would bar but impose equitable rather to restrictions on litigation, "[the State Texas ... did not the federal courts' authority exercise of their Teague [the address ] [issue] under the Federal Corpus Habeas Act to petition its for certiorari or in its briefs on review state criminal convictions. merits, and when asked about the issue reasons, For reject these we the State's argument, oral counsel [for an- Texas] by contention that we are bound federal law swered that the rely State had chosen not to apply Teague retroactivity test when Teague." Youngblood, we decide Blakely's expansion S.Ct. at 2718. The Court re- Sixth Amendment right trial should sponded to this by declaring announcement Rather, retroactively. we con-
that, given position taken the State of clude that the retroactivity test binds Texas, the Court proceed would to decide the courts, not state courts. Youngblood's merits of case:
Although grounded rule is rule, we are not bound what If considerations of federal-state deciding should we the ret- relations, think "jurisdictional" we it is not roactivity Blakely? in the sense that this Court ... must raise and decide [retroactivity] Court's decisionin issue sua Griffith Kentucky,
sponte. granted ... We certiorari to con- claim,
sider the [Youngblood's] merits of (1987), governs L.Ed.2d 649 the proceed
and we to do so. to defendants whose as- Teague, O'Connor Justice test. ter yet final when were convictions rule of that the Linkletter serted decided-because Griffith *13 Instead, consistent results. all defen not led to applies to has expressly retroactivity application limit used to federal, convie- has been it whose dants, and both state review, direct cases on rules to certain new (i.e., are still cases whose not final tions are in defendants review) only to the rules other new certiorari review or on direct pending rules, and announcing [those] cases is ann rule a new constitutional when trials in to cases which new rules other still ounced.34 yet commenced. not [had] is this Court confronting question But the at 1071. at Teague, retroac- applied Blakely should be
whether wrote, O'Connor consequence, Justice As a convictions whose defendants tively to state day field have had a veritable "commentators decided already final when were standard, much of with the Linkletter with 2004). just explained, (June 24, have As we nega mildly than being more the discussion on this our decision governs no federal at 109 S.Ct. tive." decide this must matter. We 1071.35 law. state Moreover, the state courts several opin- beginning of at the noted As we by they are not bound recognized repeated- has ion, Supreme Court the Alaska neverthe- retroactivity rule have whether, when question of ly addressed a matter Teague rule as adopted the less judicial by recognized or rule is created new they were troubled Iaw-either because state applied retroac- decision, that rule should by the Linkletter posed by the difficulties Semancik, 99 P.3d v. tively. See State bring they wished to rule, simply or because Wickham, 796 (Alaska 2004); v. State conformity federal with law into their (Alaska 1990); State P.2d subject. law on this (Alaska 1979); 10, 12-18 Glass appellate is an intermediate But this Court 482 P.2d Judd advan- may the relative court. Whatever retroactivity 1971). is Alaska test test, or the Linkletter tages preserving in Semancik. summarized in favor of the abandoning Linkletter deciding three factors consider We altogether different test, crafting an or even retroactively a new rule apply whether test, that we remains retroactivity the fact (1) to be purpose prospectively: precedent established by the are bound (2) rule; extent of by the new served words, In other Supreme Court. the Alaska (8) rule; the effect and on the old reliance Alaska retro- apply the continue to we must justice of a retro- administration in such applied activity forth and rule as set the new rule. application of active Wickham, Glass, Semanmcik, cases as Judd.
Semancik, at 548. State, however, that this is not argues for retroactive This Alaska test Leg- Alaska that the contends so. The State en after the test modeled a new rule is that we must has decreed islature Supreme Court by the United States dorsed law) (as when- matter of state test 636-38, Walker, 381 U.S.
in Linkletter collaterally attacks a convie- a defendant ever L.Ed.2d 601 or sentence. tion the United States It is true points out The State the Linkletter Supreme Court abandoned post-conviction (as amended Alaska's Lane, legislature we have Teague v. but
test 12.72.010, statute, the corre- AS here) relief by the not bound we are Rule rule, Alaska Criminal court Nevertheless, sponding Teague does Teague decision. appears to 35.1(a), adding language the Linklet- critique of an extensive contain Beytagh, Years 323-24, 328, Quoting Ter Francis X. Griffith, U.S. at Proposal, Non-Retroactivity: Critique A 713-14, 716. & n. 3 L.Rev. Va.
codify similar, if regard With courts, to the federal the Su- identical, Teag-u to the one preme announced Court's might directive conceivably be amended,
e.36 As both the statute and the interpreted as an exercise of its supervisory (7);
rule contain a now subsection this sub power over the judiciary. But relief is Supreme Court's directive to the states could section post-conviction declares that if a not be
available defendant shows that: supervisory based on its power. In-
(A) stead, appears significant there has been a that the change underlying premise is that law, Court has the procedural, substantive or Griffith authority, process as the leading per- interpreter to the ultimate *14 Constitution, to order state courts to sentence;
son's conviction or degree extend this
(B) of change the in the law was not rea- to new rules of federal constitutional
sonably law. by judge foreseeable a compe- or a attorney; tent If, suggested as by Griffith, appellate (C) appropriate it is to retroactively ap- authority court's to decide the retroactivity ply change the in change law because the of a new constitutional rule stems from the requires procedures observance of without judicial power granted by constitution, the which the likelihood of an accurate convic- legislature then the would authority have no diminished; seriously tion is to enact a mandating statute a different rule (D) the failure retroactively apply the retroactivity. of change in law would result in a fundamen- But we need not resolve this constitutional justice, tal miscarriage of which is estab- in present issue the litigation. The defen- by demonstrating lished had the present appeals dants the are pursuing changed law been in effect at the time of their Blakely in petitions claims post- trial, applicant's the a reasonable trier of conviction relief under AS 12.72.010 and fact would have a reasonable doubt as to 35.1(a). Rather, Criminal Rule they filed guilt the applicant[.] motions for illegal correction of an sentence argues The State that the 1995 amendments 35(a). under Alaska Criminal leg- Rule codify
were Teague rule, intended to islature any did not add retroactivity limita- that obliged we are therefore to follow this 35(a). Thus, tion to Criminal Rule the defen- rule when we decide whether a defendant dants' by cases are not affected the 1995 pursue can a Blakely claim after the defen- amendments to AS 12.72.010 and Criminal dant's conviction is final. 85.1(a). Rule We believe that argument the State's reasons, For these we conclude that we legislature's action ques- raise serious apply retroactivity must test established tions under separation doctrine of of the Alaska Court. powers. might One argue that legisla- improperly
ture has encroached on matters Part II: judicial entrusted to the govern- branch of ment attempting to mandate a rule of test, Under the retroactivity Alaska should (or, rather, a rule of non-retro- Blakely applied retroactively? be activity) interpretations for new of constitu- The two components Blakely: require-
tional
law.
particular
ment
issues
be re-
of fact
We note that
v. Kentucky, 479
Griffith
by jurors
solved
judges,
rather than
and the
must new rules of constitutional law to We must now the Alaska retro- all defendants whose yet activity convictions were not to resolve the issue of whether
final when the new rule was
announced.37
Blakely
should
retroactively-that
be
§§
See SLA
Griffith,
323-24, 328,
ch.
32-39.
were before if relief to obtain entitled
nevertheless beyond a reasonable proof centrality Blakely. in violation they sentenced were doubt it is question, To answer components separate two distinguish the Su by the United States As evidenced jury announced trial right v. Sum in Schriro decision preme Court's 355-58, v. New Jers merlin, Apprendi predecessor, and its (1) the are components (2004), two ey.38 reasonable These 159 LEd.2d (rather than demand first of the right might debate people fact, and disputed issue
judge) right decide to have protections-the government (2) perti to demand judge, decide than jury, rather beyond a fact disputed included prove fact-should nent issues (as lesser opposed to some implicit doubt reasonable are among "procedures proof). standard liberty". In Sum- concept of ordered *15 give to merlin, declined Supreme the Court level, are requirements these two On one . was who to a defendant relief retroactive explained, Scalia As Justice inseparable. Apprendi in violation to death sentenced in Sullivan Court Supreme the writing for jury, decided (because than a judge, rather protections Louisiana, procedural two these whether that determined of fact the issues the interrelated, aspects of concomitant are pen subject to the death was the defendant jury trial: right to alty). think, Fifth self-evident, that the we It is reach the did not Court The Summerlin beyond proof requirement Amendment reasonable doubt- proof beyond a Amend- the and Sixth doubt a reasonable Blakely, and because, Apprendi before jury verdict are of a requirement ment penalty fac- that death required Arizona law satisfy the It would interrelated. doubt. beyond a reasonable jury deter- proved have a tors be Amendment Sixth 584, 597, Arizona, 122 Ring v. See probably guilty, is the defendant mine that 2428, 24937, 1583LEd.2d S.Ct. judge to deter- up to the leave it and then had in Summerlin Thus, Supreme Court the guilty is defendant] [the ... whether mine proof to consider no occasion jury [The doubt.... beyond a reasonable "implicit [our] was Amendment doubt by the Sixth a reasonable required verdict liberty". concept of ordered beyond a reason- guilty jury verdict of
is a jury instructions [When able doubt. Supreme Court the United States But both with- a defendant jury to convict allow have re- Supreme Court the Alaska and beyond a guilty finding the defendant out beyond a proof emphasized peatedly doubt, defendant's] Sixth
reasonable to our criminal is central doubt reasonable denied. jury [is] trial Amendment justice system.
Sullivan, Winship, 397 U.S. In In re (1998) (emphasis LEd.2d 182 (1970),the 1068, 1073, L.Ed.2d 368 omitted). (footnote original) beyond a proof held that Supreme Court fundamen- among words, in which trial doubt reasonable
In other process fac- the due prove guaranteed its required rights tal is not
government Nei- Amendment. doubt is the Fourteenth beyond a reasonable clause of
tual assertions any state nor government purposes of Sixth the federal jury trial for ther not a valid subject a authority to has the government Amendments.
and Fourteenth on a lesser penalties based citizen to section, next explain in the we But as proof. standard two distinguished the in Leland Frankfurter And, Quoting Justice Blakely. be- forth
requirements set Winship declared Oregon, proof be- two, requirement of tween LEd.2d
requirement proof beyond reasonable applied wholly is, retroactively. That law", doubt was "basic in our it was Court held that the states were obliged grant requirement retroactive relief to all de- both "a safeguard and a of due
process Winship, of law". 897 U.S. at (or fendants who had been adjudi- convicted S.Ct. at 1071.39 The Court delinquent) added that cated based on a lesser standard proof-even proof
this standard of those among the "histori defendants whose con- victions were final before Winship
cally grounded was an- rights system, of our devel nounced.
oped safeguard men from dubious and unjust convictions", and that it is "[one of] short, In its opinion V., unanimous in Ivan the fundamental principles that are deemed Court declared that it was obvi- protection essential for the of life and liber major ous that "the purpose of the constitu- Id.,
ty".
vital role in the American scheme of erimi-
finding
function"-and
reason,
for this
procedure.
nal
It
prime
is a
instrument
Winship
given
must be
complete retroactive
reducing
the risk of
resting
convictions
despite good-faith
effect
reliance
on factual error.
provides
The standard
governments
law,
prior
regard-
concrete substance for
presumption
impact
less of the
innocence-that
bedrock axiomatic
might have on
justice.
the administration of
elementary principle whose enforcement
of Court, our eriminal person too, law. ... Alaska [A] accused has em- phasized
of a crime would the [deprived] importance fundamental of funda- of re- quiring proof beyond
mental fairness ... a if he could be ad- reasonable doubt in criminal
judged guilty cases. imprisoned supreme and years for court on most re- cently
[a lesser
addressed this
in
proof].
standard of
Shaw Alaska
Department
Administration,
Moreover, use of the reasonable-doubt indispensable
standard is Shaw, command the supreme the court declared that primary goal, "a perhaps paramount
respect the goal, confidence of community the applications of the eriminal law. It of justice is the criminal system protect is to
critical the against that the innocent moral accused an force of the criminal erroneous conviction".40
law not be diluted proof standard of people leaves in doubt society inno- Our has made "a fundamental being cent men are condemned. It is also value determination ... that it far is worse in our society free every convict an innocent man than to let a
individual going guilty ordinary go about his man affairs free." Winship, In re 858, 372,
have confidence that government 1068, 1077, his can- (1970) adjudge guilty (Harlan, J., him LEd.2d of a criminal of- concur- ring); Alto,
fense without convincing
see also
proper
State v.
factfin-
(Alaska 1979) ("[P
guilt
der of his
with
certainty.
utmost
llacing the burden of
proof
beyond
on the state
a reasonable
Winship,
363-64,
90 S.Ct. at
doubt in criminal cases reflects our belief
(internal quotation
omitted).
marks
that it is worse
an
tha[t]
innocent man be
years later,
Two
in Ivan
City
V. v.
New of
jailed
free.").
than
guilty
that a
go
man
York,
208, 205,
Shaw,
32 LEd.2d 659 held that process the due requirement of As our supreme court
proof beyond a
Shaw,
reasonable doubt had to
goal
protecting
of
the innocent
Leland,
Quoting
Shaw,
from require- Blakely's application retroactive society's interest it overrides tant doubt beyond a reasonable proof ment case. facts of the determining the accurately facts can be reason, those unless
For opinion, in this explained earlier As we doubt, our a reasonable proved adopted a three- has Supreme Court Alaska unproved: facts remain that the requires a new determining whether part factfind- reliable dispute that Few would retroac- should be rule both goal of significant ... ing is (1) pur- are: criteria three tively. The systems.... [justice] and the civil criminal (2) rule; by the new to be served pose however, goal system, In the criminal (8) rule; the old of reliance extent goal pro- factfinding and reliable justice of administration on the effect may conflict. innocent accused tecting the rule. the new conflict, goals these two when] [And P.2d 946 factfinding ... must But of reliable goal Rutherford declared (Alaska 1971), supreme court our protect- goal paramount way to the give to be purpose criterion-the the first [Professors] As accused. ing the innocent supersede other rule-will by the new served noted: and Israel LaFave of the purpose "the whenever considerations itself, goal in factfinding, as a Reliable integrity related to primarily rule is new accura- equally the seek to ensure would is the If Id. at of the verdict". nonguilty verdicts guilty cy of both complete retroactivi- case, extend courts will innocent, of the Protection verdicts. rule. ty to the new however, priority places greater It re- verdict. accuracy guilty opinion plurality White's QuotingJustice chance of to minimize a desire flects States,41 supreme v. United Williams person convicting an innocent declared: court that a chance increasing the price consti- major of new purpose Where may escape conviction. person guilty aspect to overcome tutional doctrine Israel, H. & Jerold Wayne R. LaFave substantially which trial *17 1.6(c), § at 45 Procedure Criminal and so truth-finding function impairs its
Shaw, P.2d at 570-71. accuracy the about questions serious raises system words, justice criminal our In other trials, the new past guilty verdicts of the protecting the conflict between "resolves retroactive complete given rule [is bel factfinding by and reliable innocent reliance good-faith Neither effect. ensuring the of on the side choosing to err prior consti- on authorities state or federal Shaw, 861 P.2d accuracy guilty verdicts." of se- practice, nor accepted tutional law greatest achiev- the And to ensure at 571. jus- of the administration impact on vere in a crimi- accuracy, a defendant of able level rule to] the new [limit suffice[s] tice govern- unless the acquitted must be nal case cireum- in these application prospective beyond a guilt the defendant's proves ment stances. doubt. reasonable at 952-58. Rutherford, P.2d our crimi- principle is so This doubt" beyond a reasonable "proof notions to our system, so central justice nal Blakely is the and Apprendi component of society a relationship between proper the of Supreme Court Alaska that the type of rule citizens, proof on be- insist that we its a rule talking about is, insist we yond a reasonable doubt-that Rutherford: to the is "related purpose primary whose the inno- protecting achieving goal the of on verdict", function and whose the integrity of there will know though we cent-even ques- that "raises serious a flaw is to cure sacrificing goal the means when this times accuracy guilty verdicts". tions about case. particular a truth in determining the at 952. Rutherford, 486 P.2d Id. L.Ed.2d
It must be remembered in this con- finding that the defendant has committed text, "accuracy" of a Rather, verdict refers to Blakely crime. violation under- something different from the accura- mines factual foundation of the sentenc- factual cy of supreme the verdict. As our court ing authority court's to impose an increased Shaw, explained in our law's insistence on punishment (i.e., punish- defendant principle proof beyond a reasonable exceeding ment applicable presumptive actually doubt sacrificing goal entails imprisonment). term of fact-finding accurate in favor of a im- more Alaska, But in retroactive portant goal: goal precluding gov- of new constitutional rules is not limited to ernment inflicting penalties from rules that affect finding guilt at the a defendant when possi- there is a reasonable defendant's trial. In Thessen v. bility that the defendant did not do the 1978),43 1195 n. 15 things penalties. would merit those Alaska Court held that preven "the Thus, an "accurate" verdict a criminal case tion of punishment" unconstitutional is also a preserves is a verdict goal. this latter compelling reason to a new rule of Blakely holds that a criminal defendant retroactively. proof entitled to demand beyond a reason- The Blakely requirement proof beyond (other able every doubt on issue of fact than a reasonable doubt is a designed rule conviction) prior that will determine the prevent punishment. unconstitutional Blaoke- defendant's maximum punishment under a ty precludes punishment enhanced when the sentencing determinate law. government has prove, failed to beyond a As this repeatedly Court has recognized, doubt, reasonable the defendant has pre-March pre version of Alaska's things done the sentencing authorize the sumptive sentencing Blakely law violated be impose court punishment. this enhanced cause, law, under that disputed former issues Thus, Thessen, under of fact that would determine a defendant's Rutherford grant Court should full retroactivity to the maximum proved sentence were "proof beyond a compo- reasonable doubt" "clear convincing evidence" standard nent of the decision even if the other rather than a reasonable doubt.42 parts (the two the Alaska This constitutional flaw raises serious rule, extent of reliance on the old and the questions concerning "integrity" or "ac- resulting effect on jus- the administration of curacy" of those decisions. judges Because tice) against would militate appli-
used a "clear and convincing evidence" stan- cation. dard to disputed resolve issues of fact under pre-2005
our But we also conclude that presumptive law, sentencing merits
there a possibility is that these full issues of fact retroactive under the Alaska
were test even if all resolved three of the incorrectly-"incorrectly" test's criteria are
the sense that considered. defendants received increased imprisonment terms of though even gov- We concede that prong second prove beyond ernment did not a reasonable Alaska test non-retroactivity favors the doubt that the defendant things had done the (as Blakely. The State of plain- Alaska
that would make the eligible defendant for cases) felony tiff in criminal and the Alaska penalties. these increased (in judiciary its role of sentencing convicted defendants) It is true that a Blakely felony relied for more than two violation does not
undermine legal underpinning of the de- presumed decades on the constitutionality of fendant's "conviction"in the narrow sense of sentencing procedures specified in the is,
that word. That Blakely pre-March violation does 2005 version of AS 12.55.155-in
not undermine the integrity accuracy particular, procedures proving for e.g., (Alaska
42.
grounds
Dague,
43. Overruled on other
See,
State v.
34 hundred a few there are that estimate We a defen- increased factors aggravating affect- potentially that will cases Alaska's under sentence maximum dant's retroactively. We applied Blakely is if ed fact mili- This sentencing law. presumptive that, according the fact on this estimate base retroactivity full giving against tates Office, there Clerks' Appellate Court
Blakely. cur- Blakely appeals 250 over slightly are Alaska test- prong of third But the awaiting our decision stayed and rently erimi- to the disruption i.e., the extent retroactivity issue. this retroactivity full system justice nal Blakely cases on But based retroactivity. We entail-again favors would decided, appears already has felony Court large numbers acknowledge enti will be defendants of these only a few Alaska's sentenced were defendants retro Blakely if to relief tled during the twen- sentencing law presumptive date, has decided this Court actively. To and its its enactment years between ty-five to resolve required us appeals that thirty-five in March amendment post-Blakely relief in have denied Blakely We issues. defendants majority of those However, grant haveWe these cases.45 thirty-three of completed custody longer in no are these cases.46 in two of ed relief Thus, full giving parole. probation their affect the Blakely not would were sentenced defendants of these Some cases. justice in those administration by indeter- governed felonies unclassified apply. sentencing, did so minate v. (As in Cleveland recently explained we sen- by presumptive governed the cases Of legislature enacted
State, the Alaska factors con- aggravating many tencing, re sentencing, it nevertheless presumptive the defen- on appeal were based tested Alaska's sentencing for tained indeterminate 4 convictions, they flowed 12.55.125(a) or else prior dant's AS felonies. See serious most And jury's verdicts. directly from not affect (b). does Blakely decision instances, er- even when other v. most See Carlson these felonies.44 sentencing for (Alaska App. State, occurred, harmless P.3d 128 the error ror was no there doubt because a reasonable appli 2006). Thus, extending full facts that concerning the dispute validity reasonable affect the Blakely will not
cation aggravating factor. gave rise to sentences.) those State, (Alaska 123 P.3d App.2005); v. Moore (Alaska 1096 App.2006). 987 143 State, (Alaska Alaska App.2005); v. Stithem 1081 (October Opinion 5016 No. App. Memorandum chronological these cases order, reverse 2757786; Kalmakoff, 26, 2005), State v. WL 2005 (Alaska App. Dague, P.3d 988 v. 143 are: State State, (Alaska v. App.2005); Simon 224 122 P.3d (Alaska State, 2006); 977 143 P.3d v. Cleveland State, (Alaska App.2005); v. Greist P.3d 815 121 State, App. Memo Alaska App.2006); v. Steward (Alaska App.2005); v. DeRushe P.3d 811 121 23, 2006), (August Opinion No. 5109 randum State, Opinion No. App. Memorandum Alaska 140 P.3d Herrmann, v. 2458574; State WL 2006 2444359; 5, 2005), (October WL State, (Alaska Alaska App.2006); v. Ohler (Alaska App.2005); 121 P.3d State, v. McDole (June Opinion No. App. Memorandum State, (Alaska App. 120 P.3d v. Grossman 2006), State, v. 1720076, Richards 2006 WL (Alaska State, 2005); Dayton P.3d 1073 Opinion No. 5077 App. Memorandum Alaska State, App.2005); Ned v. 1515606; Aguchak 31, 2006), (May WL App. Alaska App.2005); Middendorf *19 State, Opinion No. App. Memorandum Alaska (August Opinion 5002 No. Memorandum 1360938; 17, 2006), Walsh (May 2006 WL 5075 State, 1971243; 118 2005), v. Grohs 2005 WL State, (Alaska Tyler v. App.2006); 366 134 P.3d v. State, (Alaska v. App.2005); Edmonds P.3d 1080 (Alaska State, App.2006); Geisler v. 686 133 P.3d (Alaska Milligrock v. App.2005); P.3d 17 118 State, Opinion No. App. Memorandum Alaska State, (Alaska v. App.2005); Peltola 11 118 P.3d 3883159; 22, 2006), (March State 2005 WL 5062 Paige (Alaska v. State, App.2005); P.3d 771 117 (Alaska App.2006); Olson Avery, P.3d 959 130 v. (Alaska v. App.2005); State 1244 State, 115 P.3d State, Opinion No. App. Memorandum Alaska v. Gibbs, (Alaska App.2005). P.3d 145 105 306907; 8, 2006), Carl WL (February 2006 5038 (Alaska App.2006); P.3d 197 State, 128 son v. State, App. Memorandum Croughen Alaska State, Opinion App. Memorandum Alaska Fox 22, 2006), WL (February 21, 2005), Opinion No. (Deceraber WL No. (Alaska State, 438749; P.3d 775 Haag v. State, 3508661; Vandergriff App.2005). Snelling v. App.2005);
Moreover, recently we held in Cleveland v. to proof beyond demand a reasonable doubt any single State that aggravating factor is any which, on issue of fact if decided in the Blakely, satisfy sufficient any and that government's favor, subject will the defen- remaining aggravating lawfully factors could types dant to these of increased sentences. proved be procedures under the specified in this, Because of even if several dozen de- 12.55.155(f)-that is, former proved AS by might fendants ultimately be entitled to relief sentencing clear convincing evidence to the if Blakely applied were retroactively, we jud ge.47 would still confront the following question: past Based on our in Blakely decisions it fundamentally Is fair to allow defendants (that is, cases thirty-five Blakely claims prison serve terms that could be three resolved), appears we a times, times, four or in some cases five times percentage small pending Blakely ap- longer than presumptive term, their peals present will a actually claim that merits imprisonment this added imposed in vio- relief. relatively Given this impact small on lation of the defendants' right justice the criminal system, given proof demand a reasonable doubt purpose crucial by rule, served Blakely of the facts that authorized the sentencing
we conclude that Blakely requirement judge impose longer these sentences? proof beyond a reasonable doubt should be We would, conclude that indeed, this applied retroactively. fundamentally unfair. We therefore hold Moreover, we would reach this same con- that, under the Supreme Alaska Court's ret- clusion if the number of cases affected test, roactivity the Blakely requirement of by our decision significantly were higher. proof beyond a reasonable doubt must be pre-March Under the 2005 version of Alas accorded full retroactivity. presumptive law, ka's sentencing a first felo ny offender convicted of first-degree sexual Why we conclude applica- if assault first-degree sexual abuse of a mi Blakely tion requires a new determination nor faced a maximum years' term of 8 im the aggravating in a factors defendant's prisonment if proved the State aggrava- no case, that determination should be by made tors, sentencing but the judge impose could a rather judge than a up years' to 40 imprisonment if the State far, Thus our discussion has aggravators.48 focused proved one or more component requires Similarly,felony first offenders convicted of a class proof beyond a reasonable doubt. Our con felony A a faced maximum term of either 5 clusion component that this must be years' imprisonment or 7 if the proved State retroactively If, raises question: one more aggravators, no but the sentencing judge error, because of one or aggra more impose up years' could imprisonment if vating factors in a defendant's case must be proved the State aggravators.49 one or more relitigated, can relitigation performed words, In other pre- Alaska's former by sentencing judge (using "beyond sumptive law, sentencing defendants could be reasonable doubt" proof)? standard of Or prison sentenced to terms that were substan- disputed should the aggravating factors be
tially longer than applicable presumptive by jury? decided instances, term-in some three or four or longer-based five times single on a aggrava- The United States Court's deci ting factor proved only that was clear and sion Schriro v. suggests Summerlin50 convincing evidence. But the Sixth Amend- re-assessment sentencing judge
ment, interpreted as Apprendi might Summerlin, Blake- suffice. the ty, guarantees a criminal rejected defendant argument that fact-find *20 977, (Alaska 47. 143 P.3d App.2006). 987 12.55.125(c) 49. (pre-March Former AS 2005 ver- sion}. 12.55.125(i) (pre-March Former AS 2005 ver- 348, 2519, 50. 542 U.S. 124 S.Ct. 159 L.Ed.2d sion}. 442
36 247-48, 119 Id., at by erosion". but penalty (on death issue of the judge
ing by a at 1226. S.Ct. accurate less significantly was aggravators) jury.51 fact-findingby a than debates the ratification contributor One did Court the Summerlin that It is true guaran- trial jury ..., commenting on the facing us: now issue precise the not confront in Blackstone III, § echoed Art. tee jury trial should of whether question with the guard the "to the need warning of in the stan- error if, of an because ordered the against cireumspection jealous most particular fact-finding in a the proof, of dard arbitrary new, methods and of introduction any- re-performed and vacated must be case variety plausible of which, trial, under a of suggests Nevertheless, Summerlin way. un- time, imperceptibly may in pretenses, signifi- has fact-finder identity of the the that LIBER- of preservative this best dermine fact accuracy of the cantly less effect TY," proof. the standard
finding than does 119 S.Ct. Jones, U.S. 526 not the fact-finding is accuracy of But The Rights: Bill Complete quoting The of trial guarantee of the constitutional goal (Neil Sources, Debates, Origins and Drafts, fact-finding is Indeed, accuracy of by jury. editor, 1997), p. 477. Cogan, H. guarantee. goal of this primary not even States Both the United jury not by of trial Thus, guarantee Supreme Court the Alaska idea primarily solely or even acknowl- based by jury is of trial guarantee edged when than one" are better "twelve heads other and foster to serve meant Rather, the discerning the truth. it comes concerns. societal constitu- underlying the concept fundamental these con juries some jury is that ourselves trial guarantee We tional (Alaska in the justice", 1266 public 1 P.8d Malloy v. "instruments cerns are the historical of the "representative we discussed they when are
App.2000),52 sense jury Texas, right to trial U.S. of the importance community". Smith 85 L.Ed. law:
American the common development of on this elaborated Supreme Court between by a tension marked England was Lowisiana, in Duncan concept popular of the expression jury, an as (1968): 20 LEd.2d S.Ct. representa- as the
will, judiciary, and the Parliament authority.
tive of established knew constitutions our who wrote Those barring the practice engaged in it was experience history and from new, it defined jury trial when right un- against protect necessary [citizens] Act Stamp such as statutory offenses elimi- brought charges founded trade within regulating statutes and other enemies{, protect them] as to as well nate practice This Empire. British voice to the responsive judges too against Blackstone, occa- condemned authority. The framers higher Decla- the American protest sioned indepen- to create strove constitutions depri- against Independence further upon ration insisted judiciary[,] but dent jury trial. right to vation of arbitrary [governmen- against protection with Providing an accused 1288-84. 1 P.8d at action.
Malloy, tall peers jury of his by a tried to be ad- Supreme Court States The United against safeguard inestimable him an gave v. United in Jones this same dressed prosecutor corrupt overzealous States, biased, or eccentric compliant, against (1999), noted the Court LEd.2d 311 preferred If the defendant judge. our federal who drafted Americans jury to the of a judgment common-sense right to that the understood constitution sympathetic less perhaps but denial, more tutored only by gross lost "could be trial Malloy, grounds in State on other Overruled at 2525-26. U.S. at 2002). *21 single judgel,]
reaction of the ry he was to forward. The Magna Carta declared
have it. taken, that "no freeman shall be impris- or oned, exiled, or any or in other manner
Duncan,
391 U.S. at
destroyed, except by the judgment of his
Or,
as Justice Black
in his dis-
peers,
by
or
the law of the land."
[As
States,
sent in
Green United
quoted in Blackstone's Commentaries on
(1958):
L.Ed.2d 672
England
the Laws
(Cooley, Ath ed.
by
impartial
jury
Trial
indepen-
1899),
4, p.
Vol.
348]
laymen
dent
imposing
raises another
barri-
Baker,
served, jury "The institution of the ... places society the real direction of in the Our wisely law has ... placed this governed, hands of the portion or of a strong ... barrier by jury trial [of] ... governed, in gov- and not that of the between the liberties people of the and the [Quoting ernment." Tocqueville, De De- prerogative of the crown. It was neces- (Reeve mocracy translation, in America sary ... to vest the power executive of the edition), p. Vol. jury 282.1] The prince: laws yet power this injects a democratic element into the law. might dangerous and destructive ... if This element is vital to the effective admin- [by exerted judges appointed by the justice,
istration of criminal
not
control,
crown] without check or
... who
safeguarding
accused,
rights
of the
but
then,
might
as in
Turkey,
France
impri-
in encouraging popular acceptance of the
son, dispatch, or
any
exile
man that was
necessary
laws and
general
acquies-
government,
obnoxious to the
by an instant
application.
cence in their
declaration that such is
plea-
their will and
Green,
sure. But the
founders of
English
position in the jus- short, framework of American declared, the Baker Court by jury tice. Trial is one of guarantee the oldest trial is "a valuable distinguishing
discernible and safeguard institutions liberty"-if very palla "the Anglo-American of our system of jurispru- government". dium of free 471 P.2d at heritage dence. Its can be traced in an quoting Hamilton, Federalist, Alexander 88.54
unbroken line at least from the 14th centu- No. 53. Green v. 462 employed sense in which Hamilton this word 1969). legend derives from Troy that the citadel of unconquered only would long remain so as the using "palladium" Hamilton was the word goddess, statue of its Athena, Pallas patron thing the sense of "a safety on which the preserved. Id. something depends". "palladi- else The word originally any um" god- referred to statue of the http://en.wikipedia.org/wiki/Palladium See also dess Pallas Athena. College Webster's New World _-(mythology). (2004), Dictionary, p. Fourth Edition 1037. The
38 rea- beyond a proof of requirement Blakely to returned Supreme Court Alaska The remaining is the doubt-and State, sonable P.2d 891 v. in Alvarado
this theme requires a whether, where in cases Alvarado, supreme 1971). our (Alaska In factors, re- that aggravating jury the though that even emphasized court re-assessment jury. by a performed should assessment finding the truth task of the "charged with is litigation]", criminal [in asserted facts the acknowl- Alaska law and Both federal in our jury's role the aspect of one
this is but jury as a by of trial importance the edge government: system of and as a citizenry's liberties the guarantee of in our institution (in- an essential jury is The government of the power the on check multifaceted serves addition, democracy, [it] and judges). cluding power the utility as a find- [Bleyond its purposes.... sug- Fairbanks, court supreme our v. Baker equally other fact, jury fulfills the er of constitu- of our framers that the gested pur- psychological and political jury vital trial right adopt to intended tion safeguard aas jury serves] at that recognized right [The . .. poses. the than broader tyr- governmental possibility against the at 398- 471 P.2d law. under federal time protection as] oppression[, anny and arbitrary the exercise against barrier if, reasons, we conclude these For power|.] error, or more one of a because supreme Alvarado, at 908.55 P.2d must be case particular in a aggravators explained: then court to have is entitled relitigated, the defendant our institution, jury offers the an aggravators. As disputed the jury decide participate opportunity the citizens government, our workings of Part III: justice in system our legitimize serves Holding to Application of Our ac- and the public eyes of both Us Before Two Cases cused. vote, is funda- right to received Troy Smart jury, like S. Appellant are second-degree which assault of ideals
mentally preservative sentence enhanced system. aggravating When proof of to our democratic on the State's
essential based injury 12.55.155(c)(13)-the allegation neglected, is guarantee] AS [this "tlhe factor is defendant-there his knowingly to the directed not limited
is that Smart law as an system, to the officer law enforcement
injury an active at conduct large, and community of, perform institution, officer's to the during, or because in the actively disput reflected ideal Smart democratic duties.
to the ance of official court, but superior of our courts." in the processes aggravator ed this him. On against judge ruled sentencing (quoting Bal-
Alvarado, at 9083-04 finding judge's upheld the appeal, this Court 187, 195, 67 States, lard v. United record was concluded we because (1946)). L.Ed. 181 that this conclusion support the sufficient by jury far of trial importance Because by clear proved had been aggravator fact, a finder jury's role as transcends State, Smart convincing See evidence. United States that the argued could be Opinion No. App. Alaska Memorandum Court, deciding Schriro 4-5; 2008), opinion at slip (January solely Summerlin, have focused should *2. WL findings accuracy of comparative Blakely must be we hold Because findings made juries versus made superior retroactively, vacate the we may, this Court as it But judges. (c)(18), we aggravator finding of court's one con- from the problem different faces a renewed to hold court superior in Summerlin. Supreme Court direct fronting the aggravator. Smart this proceedings that defendants already concluded
We government to demand entitled to retroactive are entitled omitted). 1969) (quotation marks 994, 997 Quoting Green Blakely,
prove aggravator beyond Under Sobocienski a reasonable had a *23 doubt. demand that aggravators these proved beyond a However, reasonable doubt. Appellant Jayme Sobocienski was superior rulings court's on aggravators these charged first-degree with sexual assault and did not hinge on the proof difference between second-degree sexual abuse of a minor after by "clear and convincing proof evidence" and he fourteen-year-old invited a girl to his "beyond a reasonable doubt". None of these house, gave liquor, her and then had sex with aggravators four litigated. Instead, was So- passed her after she out. Sobocienski ulti bocienski conceded three of aggravators, mately agreed plead guilty to a reduced superior court ruled that Sobocienski charge of third-degree sexual assault. had, by failing to comply applicable with Sobocienski received an enhanced sentence rules, court forfeited his right
for this offense based on the State's proof of contest the aggravator. fourth aggravating four factors under AS 12.55.155(c): (c)(10)-that Sobocienski's con Moreover, this Court repeatedly has among duct was the worst included within held that a Blakely subject error is to harm
the definition third-degree sexual assault analysis-and less error that a Blakely error (because actually his conduct constituted a reasonable doubt if harniless higher (c)(12) degree assault);56 of sexual there is no possibility reasonable that a that Sobocienski was on bail release from would have found in the defendant's favor on felony charge another when he committed the challenged aggravator.57 The United (c)(20)-that assault; the sexual Sobocienski States recently confirmed felony probation
was on parole or when he approach this to Blakely error is cor assault; committed sexual -- Washington Recuenco, rect: v. (e)(18)(B)-that previously Sobocienski had --, 165 LEd.2d 466 committed sexual assault on another victim. Sobocienski conceded the first three of In Sobocienski's is nothing in case, there aggravators. is, these That he conceded that suggest-and record to Sobocienski has his conduct among the worst included alleged-that never any there was doubt con- within third-degree the definition of sexual (c)(12) (the cerning aggravator fact that So- assault, he conceded that he was on bail bocienski was on bail release from another release felony from another charge, and he (c)(20) felony charge) (the aggravator or fact conceded that probation he was parole or probation Sobocienski was parole on previous felony from a conviction. conviction). from a felony Accord- previous However, Sobocienski contested the State's ingly, any arguable error with re-
remaining aggravator-the allegation that he spect aggravators to these two is harmless sexually had assaulted another victim. This beyond a reasonable doubt. allegation was not based on a criminal convic- pre-March Under Alaska's presump tion; rather, it was based on sexual assault law, sentencing tive proof any single charges in another case that was dismissed aggravator was sufficient to authorize Sobo-cienski's part as plea of the bargain State's with Sobo- sente nce.58 Accordingly, we affirm sentencing cienski. The judge ruled that superior deny court's decision to Sobo- Sobocienski had waived his challenge cienski's motion for correction of sentence because, aggravator fourth after 35(a). under Criminal Rule gave State notice of proposed aggrava- its tors, (The Sobocienski's attorney defense failed to superior actually court denied Sobo- responsive file a pleading required as clenski's motion on theory, a different but we 82.1(d)(1).
Alaska Criminal Rule are authorized to affirm superior court's (Alaska
56. See App.2005); Milligrock State, Benboe v. v. 698 P.2d 1230, 1232 (Alaska App.1985). State, (Alaska App.2005). 118 P.3d See, State, eg., Tyler State, 133 P.3d 58. Cleveland v. (Alaska App.2006); App.2006). Snelling have con appeal The cireuit by the ree-o revealed any ground
decision rule sidered rd.)59 corresponding Blakely or announced announced sentences governing rule Conclusion have held Booker3 States in United here, we hold the reasons For on collateral to cases the rule does Blake, declared jury trial right of a new constitutes rule because review retroac- must be Washington ty v. procedure.4 of criminal rule *24 defendants, those whose all tively to from non-retroactivity doctrine already final when were Under convictions rule "when a new creates Teague, a decision
was decided. obli imposes a new or ground new it breaks appeals, present two regard to the With Govern Federal or the the States gation on court Sobo- superior
the decision 5 newa opinion creates When ment." AFFIRMED, the deci- but case is cienski's judg final previously rule, applies to the rule case in Smart's superior court sion For cireumstances.6 in limited ments finding court's superior REVERSED. de rules which new substantive example, (c)(13) case is VA- in Smart's aggravator prohibit conduct class of criminalize is remanded CATED, case and Smart's class of defendants for a capital punishment proceedings for renewed court superior new retroactively.7 These apply generally aggravator. on retroactively because apply rules substantive was con- the defendant a risk there is concurring.
STEWART, Judge, or faces not criminal that is an act vieted for by law.8 allowed dissenting. is not
COATS, Judge, punishment Chief generally do However, rules procedural new concurring.
MANNHEIMER, Judge, retroactively.9 New apply not some possibility that "merely raise rules concurring. STEWART,Judge, invalidated use of the with the convicted one that we Judge Mannheimer agree with I other acquitted been might have procedure question law on Alaska apply con speculative this more Because wise. rath Washington1 Blakely v.
retroactivity of ef innocence, give retroactive we nection Lane.2 Teague v. analysis in than the er rules of "watershed only a small set fect funda implicating procedure Judge Mann- However, disagree with I accuracy the criminal fairness mental grant- Blakely should be
heimer on " 10 proceeding. Teague. under ed retroactive Price, Cir.2005); (9th v. States United 1034-36 186, 188 872 P.2d Hamilton, v.
59. See Torrey Cir.2005); (10th 844, re 780, New, 845-49 1994); 400 F.3d (Alaska 737 P.2d v. Demoski Cir.2004). 1287, (11th Dean, 1290 1987); 375 F.3d (Alaska v. Millman 786 190, v. Anchor App.1992); Russell 195 586, (Alaska App.1981). 4 age, 588 n. 626 S.Ct. at 1070. Teague, 301, at 109 489 U.S. 5. 2531, 296, 403 159 LEd.2d S.Ct. 124 1. 542 U.S. 351-52, 348, U.S. Summerlin, 542 6. Schriro (2004). 442 LEd.2d 159 2519, 124 S.Ct (2004). 1060, 288, 334 LEd.2d 103 489 U.S.
2. 7. Id. 738, 220, 160 LEd.2d S.Ct.
3. 543 at 2522-23. S.Ct. 352, Id., 542 U.S. 8. S.Ct. at 404 F.3d States, v. United
4. See Guzman Cir.2005); (2d 403 F.3d In re Olopade, 141-44 Parks, 494- (quoting Id. (3d Cir.2005); Safflev. States v. Gen- United 160-64 (1990) 108 L.Ed.2d Cir.2005); (5th 602-06 F.3d try, citation (some quotation marks and internal 679, 376 F.3d States, United Simpson omitted)). Cir.2004); F.3d (7th Schardt Payne, Summerlin,11
In Schriro v. the United Ring nounced in apply did not retroactively Ring
States Court held that v. Ariz already to cases final on direct review.19 ona'12 retroactively did to a case Judge While thoughtful Mannheimer has a on collateral review because the rule an argument why Blakely should be retroac Ring nounced was neither a substantive tive under beyond-a- because of the rule nor a proc "watershed" rule of criminal standard, reasonable-doubt my judgment it is Ring, edure.13 In the Court held that a United States Court will
jury, judge, rather than a had to determine course, conclude otherwise. Of because the whether an aggravating justified factor that granted Court has certiorari on a case rais penalty present.14 the death Because ing the of Blakely's retroactivity,20we Arizona required aggravators to be may soon have a ruling definitive proved beyond doubt, a reasonable the Court rule Teag- required was not to decide whether the re quirement proof beyond a reasonable
doubt amounted to a substantive or water *25 procedural
shed rule.15 COATS, Judge, Chief dissenting. The Schriro Court found that the rule Almost all courts that have considered the Ring announced in procedural rather question have held Blakely that Washingt v. than substantive because it "altered the only on1 applies retroactively to cases that range permissible methods for determin yet were not final at the Blakely time of the ing whether a punish defendant's conduct is decision. I would follow those decisions able death" range rather than "the order to avoid undue disruption with minimal persons conduct or the class of that the law benefits. 16
punishes." It further concluded that the required We are apply to federal law in
rule was not a "watershed" rule of criminal determining retroactivity
procedure.17 Blakely Supreme Court found that pointed decision. As we Haag out simply evidence v. equivocal too [was]
"tlhe State,2 scope "[the retroactivity support "judicial [the] conclusion" that fact-
finding so 'seriously decisions of the accuracy United States diminishe[s]' 3 Supreme "impermissibly governed by there is an Court is large risk' of federal law." 18 punishing conduct the law does not law, reach." Under federal "a new rule for conduct of
Thus, because it prosecutions did not fall [applies] within either of retroactively
the two exceptions, cases, federal, the Court con to all state or pending on yet direct review or not
cluded that the new parties final."4 The rule an 348, 352, 2519, 2523,
11. 542 U.S.
124 S.Ct.
Waddington,
(9th
159
20.
Fed.Appx.
Burton v.
142
(2004).
LEd.2d 442
--
Cir.2005),
granted,
13.
14.
(citing
16.
federal tion Blakely is to determine structure, sentencing presumptive Alaska's view, would my we retroactive. *26 code, was sentencing the former out in as set under Blakely further extend required to to reduce legislature by Alaska adopted Blakely rule adopted if we state sentencing of in the disparity unjustified Constitution. the Alaska under make criminal and to defendants pro predictable fair and more sentencing a of this courts appellate general, In sentencing judge's disc limiting the by cess a new rule adopting will consider
state WL 1060, 2006 --, 288, Wenzinger, 334 P.3d LEd.2d 103 S.Ct. -- 109
5. 489 (Colo.Ct.App.2006). other And at *4 « 1493802 (1989). federal as the have used state test, 348, reserving to use Summerlin, U.S. retroactivity while 542 v. 6. Schriro retroactivity principles to treat state their own (2004). 442 LBd.2d 2522, 159 2519, v. See State question law. of state as a universally appellate courts have 627, 438, Evans, 633 114 Wash.2d 154 determining is not Teague in used 886, 433 F.3d Zambrano, In re See retroactive. Gentry, 432 (D.C.Cir.2006); v. States United 888 889; Zambrano, Gentry, Cir.2005); 432 600, (5th v. at States F.3d United 433 7. See F.3d Cir.2005); (4th 414 69; at Schardt F.3d Morris, Payne, 429 65, 605; 69 at F.3d F.3d Morris, 429 Cir.2005); (Oth at Shot, 413 F.3d A Never Misses 1025, 1036; 1036 at 414 F.3d F.3d v. Payne, 404 Cirilo-Munoz, 413 F.3d States, 613; F.3d at v. United 407 783; A Shot Misses Lloyd, Never States, Cir.2005); Lloyd 781, (8th v. United 141; Varela, at 783 Guzman, 404 F.3d 533; F.3d at Cir.2005); Hum- (3rd 846; at 400 F.3d 867; Price, Cirilo-Munoz at 400 F.3d 608, 613 407 F.3d Cir.2005); 860; 527, (1st at States, McReynolds, 397 F.3d 532 at phress, F.3d 398 F.3d 404 v. United 139, (2d States, Consiglio, 141 404 F.3d 273-74; at v. United N.W.2d Houston, 702 481; Guzman 633; 864, 114 P.3d Cir.2005); 170; Evans, 400 F.3d States, v. United 27 Varela Cal.Rptr.3d 598, Price, (Fla.Dist. State, Cir.2005); 400 600 (11th v. So.2d Langford States v. 929 United 867 43, 46 Cir.2005); 844, (10th Humphress v. 922 So.2d v. Ct.App.2006); Smith 846 F.3d Cir.2005); (6th States, (Miss.Ct.App.2006). 860 398 F.3d United States, 481 F.3d 397 McReynolds v. United Cir.2005). courts that (7th the state Of (Alaska Coon, 394 974 P.2d v. 8. See State Blakely, have determined some considered 1999). retroactivity of this federal controls Consiglio, 128 In re question. See 2002). 46 P.3d (2005); 511, Cal.Rpir.3d 169 Cal.App.4th 27 (Minn. Houston, 702 N.W.2d
State LEd.2d 2005). utilized courts have Some Teague as its own adopted state has because their Ariz. Febles, test. See State Malloy, at 957. 46 P.3d (Ct.App.2005); State
retion.12 apply The former code did not nies. But we set out sentencing guidelines
presumptive upon logic sentencing first-felony based to presumptive of sentenc ing and our decision in
fenders convicted of B felony class and C pur Austin.21 The offenses.13 First offenders convictedof class pose of the Austin and Jackson decisions felony A presumptive offenses faced terms.14 carry was legislative out goal of mak legislature required presumptive sen ing sentencing logical, uniform, more and fair repeat felony tences for most offenders.15 by limiting directing judge's sentenc (Presumptive sentencing did not ing discretion. offenses.)16 murder kidnaping Once a In Apprendi, United States sentence, presumptive defendant faced a Court, by vote, a five to four "any held that sentencing judge pre could deviate from the (other [disputed] conviction) fact than a prior sumptive only by finding sentence one of penalty increases the for a crime many aggravating enumerated mitigating or prescribed statutory maximum must be three-judge referring factors the case to a jury, submitted to a proved beyond pane l.17 reasonable doubt."22 Blakely, In the Court State,18 In Austin v. we attempted carry judges' clarified that sentencing discretion in legislature's out the express goal having reaches the maximum sentence that can uniformity more sentencing by extending proved solely on facts reflected in logic presumptive sentencing to a first- verdict or admitted the defendant.23 Un felony offender felony. convicted of a class C der our sentencing former code the sentenc first-felony offender, Because Austin was a ing judge was not authorized to exceed an whom presumptive sentencing apply, did not applicable presumptive imprisonment term of sentencing judge legally authorized unless proved State aggravating fact up sentence him 5-year to the maximum ors.24 The sentencing former required code sentence finding any without aggravating that aggravating proved factors be to the Austin, factors. we concluded since sentencing judge by clear and convincing evid felony second offender would pre face a ence.25 This sentencing scheme violated sumptive years sentence of imprison *27 Blakely Blakely because required any fact ment, illogical it would be for sentencing (other conviction) prior than a that raised the
judge first-felony to sentence a offender to maximum sentence that the defendant faced more than presumptive term for a see- proved to jury beyond to a a reasonable ond-felony offender unless the sentencing doubt.26 judge found that the exceptional.19 case was Jackson,20 majority State v. we used a similar primary concludes that
analysis setting sentencing guidelines out reason to Blakely retroactively is be first-felony
for offenders convicted of B cause the deprived class defendant was of his Again,
felonies. the former code did not to have the prove aggravator State an be yond apply presumptive sentencing a reasonable unlikely first-felony doubt. But it is to
offenders who were convicted of class B felo- many that there are judge cases where a 19. Id. at 658.
12. See
Juneby
(Alaska App.1982),
superseded
and
on
modified
grounds,
(Alaska App.1983).
other
13.
Id. at
former AS
and
21.
Id. at 326-27.
version).
(pre-March 2005
22.
14. Former AS
23.
16. Former AS
25. Former
Juneby,
AS
18. 627
App.1981).
P.2d 657
Haag,
would available. are still witnesses and the evidence not have but would convincing evidence standard under
found charging decisions made has The State And, our decision doubt. reasonable upon based imposed sentences have State,27 judge would in Cleveland were effect sentencing that laws beyond a reason aggravator find one to have These deci- imposed. sentence time the Blakely. After with comply doubt able if the very different have been might sions aggrava- other find all judge could Sen- foreseeable. had been Blakely decision convincingevidence.28 by clear tors might the State aggravators tencing time of easily at the prove factors, have been able aggravating many are There might sentencing original some the defendant's always present are almost
some in a prove impossible difficult every case now be instance, almost For offenses. later. 'The State years have "em will jury trial conducted a defendant manslaughter call crime having to position in a might be in further dangerous instrument
ployed event, testify about will aggravator victims, long after This of the offense.29 ance put behind the victims incident that and, found be an if present, always be almost retroactive, we By making Blakely. satisfy them. doubt, will
yond a reasonable advancing an fore are not commits Similarly, who a defendant major adminis- creating a are principle. We always cause almost will assault sexual ible gets his person problem. Whether victim, aggravatingtrative another injury to his physical good may will be more aggravator turn reduced So sentence or.30 fact to me anything It seems else. than the case fortune every case and in almost present majority of courts overwhelming Blakely. comply with will Blakely retroac- to extend have declined decisions, we sentencing In our former retroactively concluded tively have al aggravator that when pointed out sentencing applies to law that changing the offense, it should in an always present most I unduly disruptive. unfair and would sen the defendant's to increase only be used majority. overwhelming follow this would Blakely, But after cases.31 in unusual tence almost that are factors aggravating
these MANNHEIMER, concurring. Judge, offense will particular for a always present issues two separately to address I write the court will allow satisfy Blakely and in the may confront supreme court our by clear and aggravating factors find other petition parties one or more event that convincingevidence. The first our decision. to review that court retroactively, *28 we When adopt the should Alaska is whether cases, as man- such in some result is matter of state retroactivity test as a Teague assault, Blakely forcible sexual slaughter and whether, the The second issue law. In every case. in almost be satisfied
will test, jury trial announced right of the Teague prove an to have the will other cases State appli- retroactive given be Blakely should Defen- the offense. long after aggravator cation. factors at aggravating who conceded dants they sentencing can claim original their retroactivity test adopt the Alaska Should they known had conceded have would not Lane? Teague v. those jury trial. to they were entitled ap- present to the Although parties the must factors aggravating the cases where II in Part primarily interested may be peals will face jury, the State proved to now be (our question of the resolution it is of our decision about decisions some difficult State, 12.55.155(c)(1); Woods v. AS 30. See (Alaska App.2006).
27. 143 P.3d 1983). 184, 187-88 at 987. Id. Woods, 667 P.2d 603; 731 P.2d Krasovich, 12.44.155(c)(4); Krasovich AS
29. See at 187-88. (Alaska App.1987). 598, 601 Blakely right
of whether the trial will rights corpus of habeas through [their applied retroactively), question it is the own] statutes.... sovereign Each has the is, question addressed Part I-that the to decide how it will allow access to governs what law appellate court's deci- extraordinary remedy. The federal sion as to whether a new constitutional rule government permits controls how it access applied
will be has a remedy courts, to the in its and South lasting importance more our to law and to Dakota provide [decides how will it] access people the of this state. to corpus habeas in our courts.... [A] federal decision on what [govern] criteria twenty twenty-five Within years, essen- tially all of the pre- defendants who received constitutional
sumptive in a federal pre-March corpus sentences under the habeas proceeding [is controlling not] on a retroactivity question
2005 version of our presumptive sentencing in a corpus state habeas proceeding. sentences,
law will have served their and the Blakely's issue of retroactivity will then be of Cowell, 458 .2d at 517. NW (Remember legal interest scholars. Nevertheless, several supreme state that Alaska retained indeterminate sentenc- they concluded that adopt should the ing felonies; for the most serious Teague test as a matter of state law. Of decision does not longer affect those sen- course, say one can not these courts tences.) But regard with larger ques- wrong, matter, were legal as a to declare that tion governs of what law retroactivity Teague retroactivity test was an accurate rules, new constitutional the answer will af- reflection of their state's subject. law on this fect the citizens of this state for the indefinite But I believe that these courts were wrong, future, in many different contexts. as a policy, matter of adopt Teague As majority opinion, test. adopted by test the United Teague retroactivity designed States Teague Court in v. Lane1 narrow-designed very so that few
was not Rather, intended to bind the states. rulings constitutional will be retroac test was intended to limit (To has.) tively. date, none Justice O'Con- authority of the federal courts when state nor declared that the narrowness defendants seek to their overturn convictions Teague test was based on two considerations: in federal corpus litigation. habeas comity, federal-state and the societal interest Teague, Under prisoner if a state initiates finality judgements.2 federal corpus litigation habeas and attacks
their comity" conviction on "Federal-state polite way the basis of a is a new rule of law, referring goal to the avoiding political federal courts difficultiesthat can be
must, instances, created when the fed- in most decline to reach
merits of the prisoner's claim (assuming that government eral authority exercises over might state raises matters that reasonably defense in a be viewed as fashion).
timely being primarily But pro- does goal concerns. This bearing
hibit has no extending question state courts from par- full or of whether a *29 supreme state grant court should or withhold
tial retroactivity to a new federal constitu-
tional application rule. of new constitutional rules to prosecuted defendants who were As the South Dakota Court ex convicted under that state's law.
plained in Leapley, Cowell v. 458 N. W.2d514 (S.D.1990): Society's finality interest in the of criminal Teague The decision right judgements is, however, [defines the just strong as corpus granted of] habeas fed- post-conviction litigation [under] state it as is in fed states, eral statutes.... post-conviction [But] various in- eral litigation. To echo what
cluding
Dakota,
South
have created state
Justice O'Connor
in Teague
judges,
said
Teague,
LEd.2d 334
prosecutors, But application. because faithfully ap for retroactive they when standably frustrated is, because narrow-that is so have test law existing constitutional ply ever, rarely, provide if courts will the federal ... new consti discover appellate] court [an was convicted prisoner who to a state proceeding for relief in a later commands" tutional .3 that violate procedures reliefs sentenced post-conviction rule of federal later-announced @rinols v. Moreover, noted as this Court state all the more is law-it
State: fairness as weigh considerations courts to has a substantial Society whole] [as finality when decid- as considerations well litiga- making sure that criminal interest rule should ing a new per- All an end. eventually reaches tion retroactively. litigation-defendants, in the involved sons Supreme Court said friends, investigative
victims, the Tennessee As families test, a state rejected when large- public at as the agencies, as well justice in a dispense attempt "to court should cases expect that criminal have a concerns, histo- befitting more manner If point. finally at some resolved
will be State, jurisprudence". Meadows ry, and long claims allowed to assert prisoners are (Tenn.1998). In other 849 S.W.2d trials, society the risk that runs their after words, the flexibili- should have a state court years after may be ordered re-trials retroactively in situa- ty apply new rules may longer be event, no witnesses when will best a retroactive tions where perti- their memories available or when, prin- justice-even because achieve been lost or dimin- have nent occurrences comity, the federal ciples of federal-state addition, litigation of piecemeal ished. litigation. abstain from courts should post-convie- fruitless and often successive cost to the significant poses tion claims adopted Many the courts that components of the other and the courts law have missed a matter of state Teague as supreme system. As our justice explain their point. These this crucial in Mervill v. recognized court should not by asserting that there decisions [in the] element finality may be crucial retroactivity, de- tests for two different A the criminal [of effectiveness lawl. litigating in prisoner is pending on whether a system permits which See, for exam- or state court. federal court into facts inquiry repetition of endless Arizona words of the ple, the for ultimate in a vain search and law v. Slemmer: State confidence implies a lack of certitude retroac- [DJiversity governing the rules [in [administering] possibilities of about the and a disser- tivity] be mischievous would but war with justice that cannot principles of federalism. vice to underlying the [law's] effectiveness complex enough retroactivity is regarding Furthermore, commands. substantive judges requiring counsel and trial without convictions, reopening of . an endless rules, de- different underlying implica- continuing its with substantive deci- on whether the pending can es- the defendant perhaps tion that consti- or federal grounded is on state sion all, after sanctions cape from corrective many principles-especially tutional the aim inconsistent] with potentially [is grounded on both. are decisions rehabilitating offenders. 41, 49 Ariz. 828 P.2d Grinols, App. wrong: there should be differ- But this
2000).4 retroactivity. tests for ent an effective is doubtless *30 because very restrictive Teague test is finality of criminal way preserving the measure, based, policy on a that test, large Teague under the
judgements-hbecause, 231, State, Quoting 457 P.2d Id., Merrill v. at 1075. 1969). (Alaska
federal disrupt courts should be loathe to the if we applying Teague were the retroac- finality judgements. of state court State test, tivity Blakely the jury right trial courts, hand, on the other great qualify should have would fail to for applica- retroactive authority
er to I opposite re-examine their own tion. reach the state's conclusion.
judgements. They hamstring should not explained As in this opinion, Court's main by adopting themselves precludes a test that right jury the trial announced in v. retroactive excep relief all but the most (1) Washington components: has two the Rather, tional cases. as the Missouri Su (rather right jury demand that a than a preme said, Court employ state courts should judge) disputed fact, decide the issue of and "permits a test that [them] consider the (2) right government to demand that particular legal facts and issues relevant prove disputed the' issue of fact specific issue before [them]". State (as reasonable opposed doubt to some lesser Whitfield, (Mo.2008). 107 S.W.3d proof). standard of Moreover, because the federal courts are The United Supreme States Court has al- by Teague, bound state courts have effective- ready rejected the contention Blakely's ly become the courts of last resort on the component qualifies first for ap- retroactive issue of whether new rules of federal consti- plication under Teague test: Schriro v. applied tutional retroactively. should be Summertin, State courts must therefore be free to do L.Ed.2d 442 should, in situations where a new rule
Justice The defendant in Summerlin was sen- fairness, applied retroactively, and tenced to death Apprendi- violation of where this can be done significant without (rather because a jury) than a decided judge disruption justice system. the eriminal the issues of fact that determined he I note that Supreme has, the Alaska Court subject to the death penalty. When occasions, on several extended either full or sought Summerlin corpus habeas re- partial to new rules of lief, Supreme Court held that identity law in situations where the new of the fact-finder was not so crucial an ele- (or arguably rule would clearly) fail the ment of proceedings qualify as to Semancik, test. See State v. 99 P.3d Teague, because there (Alaska 2004), Briggs Department proof was no findings of fact made Safety, Public 782 P.2d 1080 n. 4 jury any are more findings accurate than (Alaska 1987), State, Thessen v. 508 P.2d judge. made (Alaska 1978), 1195n. 15 5andRuther 124S.Ct. at 2525-26. State, 486 P.2d
ford issue, On this narrow Supreme Court 1971). See also Koch v. may right. But, well have been as (Alaska App.1982), where this Court did majority in our opinion, the same. repeatedly. has emphasized impor- If the Alaska Court were to right jury: tance of the trial transcends adopt test as state law on the jurors may whatever skills the bring to the (and of retroactivity, supreme court fact-finding process. jury is an institu- Court) this would be again barred from ever tion serves as a check on the executive issuing such decisions. I believe that judicial authority government, contrary would be to the best interests of the preserves participation and ultimate people law and the of Alaska. community control of matters of crimi- (the justice. nal As Justice Scalia author of "proof
Should the
beyond a reasonable
Summerlin)
himself
Blakely,
noted in
component
doubt"
ret-
trial
roactively
under the
test?
formality,
is no mere
but a
(in
dissent)
Judge
Both
Coats
his
fundamental
power
reservation of
in our
(in
concurrence)
Judge Stewart
his
conclude
constitutional structure....
Constitu-
[The
grounds
(Alaska 1986).
Overruled
Dunlop,
on other
in State v.
48 purposes rule "procedural" and a rule is meant trial for of] guarantee tion's Teague control ultimate] people's [the censure of this carries out Apprendi judiciary. the retroactivity announced for the test Under author- judge's ensuring the by that design an- Lane, if court decision Teague v. wholly from the derives ity to sentence rule, if "new" constitutional nounces restriction, jury's verdict. Without "sub- than rather "procedural" rule is this control exercise not jury would not be will stantive", generally rule the new intended. Framers be- convictions whose to defendants at 124 S.Ct. at
Blakely, 542 U.S. was announced. rule final before came omitted). (citations this exceptions to only two Teague recognizes not did Moreover, Court the Summerlin (1) non-retroactivity: when the new of rule Blakely compo the second whether consider authority of restricts rule constitutional beyond proof requirement nent-the kinds "certain to criminalize government for doubt-qualified reasonable conduct", and individual private primary, Arizona Teague test. under application rule "re- (2) the new factors be penalty that death required procedures of ... the observance quires See doubt. a reasonable proved ordered liber- concept of in the implicit are 597, 584, Arizona, 122 S.Ct. 536 U.S. Ring v. at 109 S.Ct. at Teague, 489 U.S. ty". (2002). 2428, 2437, LEd.2d 556 158 Thus, 1078. had no in Summerlin Court ac later Supreme Court (Actually, as require to consider occasion Summerlin, new knowledged in Schriro doubt beyond a reasonable proof ment of 6 liberty" excep concept of ordered the first fall within "implicit [our] rules that "fundamen as accurately characterized so procedure it was more
-whether tion "are 7 subject are] without [that rules trial" substantive [a] fairness [to tal thel 9 bar".) | is conviction [Teague's accurate it, of an "the likelihood .8 seriously diminished" a "new" Blakely created I conclude Supreme Court ago, the months a few Just As Teague test. purposes of rule whether, the issue certiorari granted concurring in her wrote O'Connor Justice beyond a proof guarantee because West, "To determine Wright v. opinion in doubt, Blakely meets the rule, requires reasonable as a new counts what ha- in federal for retroactive can be rule ... ask whether courts to v. Wad- Burton litigation. See corpus beas [the rules] from distinguished meaningfully -- --, 165 126 S.Ct. U.S. dington, at the time binding precedent established Burton, (The petitioner, L.Ed.2d be court conviction defendant's] [the Washington the same
was sentenced added)10 (Emphasis came final." at that was sentencing scheme determinate may rule newly announced though a Even Thus, expect the we can Blakely.) "governed" as "controlled" be described legal issue this to resolve Supreme Court decisions, nee- does not judicial by prior summer. next the rule of whether the issue essarily decide meantime, however, my colleagues In the Teague As purposes "new" for to discern we could done the best I have in Butler v. McKel- my Here is existing law. answer from lar, analysis: says that its (a) that the Why I conclude a court fact [The compass" "logical "new" Blakely is a is within decision recognized
jury trial & n. U.S. Summerlin, S.Ct. at 1073. Teague, 9. Schriro
6. 159 LEd.2d 2522 & n. Id., S.Ct. at 1076. U.S. at 277, 304, Wright West, 505 (O'Connor, S.Ct. at 1077. (1992) 120 LEd.2d concurring). J., *32 decision, regulate rules that only the manner of deter-
an earlier or indeed that is decision, by prior "controlled" is not mining the culpability defendant's proce- are dural." Id. purposes deciding
conclusive for of wheth- er the current decision is a "new rule" Summerlin, In Supreme Court held
under frequently Courts view that the rule announced in Ring v. Arizona- their being decisions as "controlled" or the rule that the Sixth Amendment is violat "governed" by prior opinions even when ed when a sentencing judge, sitting without a [they contrary are] aware of reasonable jury, finds an aggravating cireumstance that by conclusions reached other courts.... imposition authorizes the penalt the death susceptible [If] outcome [was] [of] y1 2-was rule for purposes of among ..., debate reasonable minds [the Teague. rule should be as] viewed a "new rule." holding [The] Ring [in did not ] alter the 407, 415, U.S. 110 S.Ct. range of conduct subjected Arizona law (1990). 108L.Ed.2d 847 penalty. death [Ring entirely ] rested Blakely The decision in clearly suscep- jury-trial Sixth guar- Amendment's debate, tible of reasonable even after antee, provision nothing that has to do Supreme Court's decision in Apprendi. with range of conduct a may State years the four Apprendi between and Blake- Instead, criminalize. Ring altered the ty, many federal and state courts considered range permissible methods for deter- whether, light issue of Apprendi, mining whether a defendant's conduct is sentencing determinate hinged schemes that punishable death, requiring jury that a judge-tried on sentencing factors violated a rather judge than a find the essential facts right defendant's by jury to trial under the bearing punishment. Rules that allo- Sixth exception, Amendment. Without these cate decision[-Jmaking authority in this federal and upheld state courts the determi- fashion rules, are prototypical procedural sentencing nate against schemes the Sixth conclusion we have reached in numerous challenge.
Amendment other contexts. essentially This fact question decides the Summerlin, at S.Ct. of whether announced a new rule. (citations omitted). paraphrase To what Supreme Court said rejected Court then Sum- subject Banks, on this in Beard v. since, merlin's contention that Ring, though the Sixth principle Amendment an- penalty death sentencing factors had to Apprendi nounced in thought "could be proved jury beyond to a a reasonable support" the in Blakely, decision "reasonable doubt, Ring effectively altered the definition
jurists point", differed [on] this and "reason- of murder declaring that sentencing these jurists able could have concluded that factors were "elements" of the crime-thus Apprendi] [decision compel did not [the making Ring a "substantive" decision for Blakely] decision in Accordingly,Blake ".11 purposes test. ty announced a "new" rule for purposes of explained Court expansion Teague. trial did not alter the ele- Additionally, I conclude that ments of the underlying offense: rule "procedural" rather than "substan- A decision that modifies the elements of purposes tive" for Teague. normally offense is substantive rather As the Schri procedural. than New elements alter the Summerlin;
ro v. a rule is range "substantive" punishes, conduct the statute ren- "procedural"
rather than for Teague pur dering formerly some unlawful conduct poses "if it range alters the of conduct or the lawful or vice versa. [Citation omitted] persons class of punishes". that the law did; Ring But that is not range what contrast,
U.S. 2528. "In punished by conduct death Arizona Banks, 406, 416, Arizona, 584, 609, Beard v. Ring 2504, L.Ed.2d 494 153 L.Ed.2d 556 liberty" *33 pre-ex- "improve the 13-rules which Ring after. Ring as same before
was the such fact-finding procedures" statutory ag- isting that, Arizona's because held (as "implicatef(s] state matter of absence a that their extent restricted gravators 14 by seri trial" defendants, of [al fairness fundamental death-eligible law) of the class an aceu-rate of "the likelihood diminishing ously ele- effectively were aggravators those then, is question, conv iction".15 purposes, for ments beyond proof of Blakely's guarantee re- procedural subject to the whether so were and a rule. attaches is such doubt the Constitution a reasonable
quirements U.S., at 122 536 elements. of
trial court, or every whether Essentially holding be- This Court's 2428. federal, has considered that fact a certain has made Arizona cause appli- retroactive allows the Teague fact that penalty, the death essential Blakely has conclud- Apprendi cation as the same by jury, is not a found must be is "no". that the answer ed fact essential making a certain this Court's awas The former penalty. death to the au- However, unanimous apparently this latter would holding; procedural ap- might convincing as thority is not as ~ substantive. Ap- holding that decisions The court pear. at
Summerlin, 124 S.Ct. U.S. at retroactive Blakely are not prendi and/or original). (emphasis into three fall under too, rejected the con actual-
(This Court, recently groups these only one of groups-and proved Apprendi must be which that all facts of whether
tention the issue ly addresses retroactive- deemed Blakely Blakely must also be should be jury
a and/or beyond a proof underlying See State guarantee crime. ly of the because elements App.2006).) Dague, 143 P.3d doubt. reasonable resolution Supreme Court's Based from comprises decisions group first (a that decision this issue Summerlin Arizona-jurisdictions that like jurisdictions day as Blake- the same down on handed beyond a "proof with the have to deal did not Blakely-like Ring- ), that I conclude ty Apprendi aspect of doubt" reasonable rule. "procedural" a established already governing state Blakely because proved factors be aggravating required that a mew
(b) Blakely Although established doubt. beyond a reasonable rule, Blakely guarantee procedural doubt beyond a reasonable proof comprises decisions group The second qualifies beyond "proof simply do not address Teague test
«under problem. aspect of doubt" reasonable preceding any in the discussion the reasons courts omitted
For of these Some
section, "proof established I conclude that noted the Other of this issue. component purposes of doubt" rule for beyond a reasonable
new inexplicably so, being Teague declares then Blakely, but This test: Apprendi applied to defen- Blakely should component in their to address failed final before became whose convictions dants See, eg., States analysis. United announced, unless the (5th Cir.2005); 600, 605
Blakely was Gentry, 482 F.3d excep- Teague's two one of falls within
rule States, 413 A Shot v. United Misses Never (8th Cir.2005), United tions. 781, 783-84 F.3d (10th Mora, 293 F.3d States potentially exceptions Only of those one - Wengzinger, Cir.2002); People v. for rules exception applies here: 2006WL , (Colo.App.2006), procedures of ... "require[ the observance ] at *6-*7. concept of ordered in the implicit that are (Bren- Id., at 1086 U.S. at S.Ct. at 1073. Teague, nan, J., dissenting). at 1076. (1998) group
What remains is a smaller (holding cases the Sixth Amend- "proof beyond
that address the issue of jury when, ment trial is violated expressly
reasonable doubt" and
conclude
though
jury
case,
decides the defendant's
Apprendi
Blakely guarantee
is allowed to base its decision on less
proof
a reasonable doubt is not a
doubt).
proof beyond
than
a reasonable
component
jus-
fundamental
of our criminal
years
Two
after its
in Winship,
decision
system.
tice
*34
Supreme
process
Court held that the due
it,
On the face of
this conclusion is shock-
requirement
proof beyond
of
a reasonable
ing.
Supreme
The United States
Court has
doubt should be
wholly retroactive-
repeatedly emphasized the central role of
ly-that
is, even to defendants whose conviec-
proof beyond a
in
reasonable doubt
our soci-
tions were final
Winship
before
was an-
system
ety's
justice.
of criminal
York,
nounced.
Ivan
v. City
V.
New
of
858, 862-64,
In
Winship,
In re
208, 204-05,
U.S.
1068, 1071-78,
(1970),
8.Ct.
reasonable doubt was the fundamen- rights guaranteed by
tal process the due it was major purpose obvious that "the of
clause the Fourteenth Amendment. of the proof standard of be- words, other government neither the federal yond a reasonable doubt announced in Win- any government nor state authority has the ship was aspect to overcome an of the erimi- subject penalties a citizen to criminal nal trial [might] substantially impair[ ] proof.
based on a lesser standard of truth-finding that, [its] function"-and reason, this Winship given must complete Winship
The Court declared that the re despite good-faith :retroactive effect reliance
quirement of proof beyond a reasonable law",16 governments prior law,
doubt is "basic in our that it is both "a
requirement regardless safeguard impact and a process of due ap- retroactive plication might law",17 have on of the administration and that of is "[one of] funda Id.,
mental principles that justice. are deemed essential 407 U.S. at S.Ct. at protection
for the 1952. liberty".18 of life and
Winship Court also declared that It is true that Ivan V. was decided under use of the reasonable-doubt standard is the law of as it existed before indispensable to respect command the given v. Lane. But what the confidence of community in applica- Court said in Winship about the central and tions of the criminal law. It is critical that indispensable proof beyond function of a rea the moral force of the criminal law not be system sonable jus doubt our of eriminal proof diluted a standard of leaves tice, it is inconceivable that the result Ivan people in doubt whether innocent men are any V. would have been under the different being condemned. It is also requirement test. The proof be society our every free going individual yond a reasonable doubt criminal cases is ordinary about his affairs have confidence clearly procedure "implicit that is in [our government his adjudge cannot him society's] concept liberty".19 of ordered guilty of a criminal offense without con- vincing proper guilt factfinder his with it, then, how So is that a number of federal certainty. utmost and state courts have concluded Winship,
In re 90 S.Ct. at test, they required are not 1072-78. extend full to the Louisiana, See also "proof beyond Sullivan v. compo- reasonable doubt"
275, 278, L.Ed.2d Apprendi Blakely? nent Id.,
16.
one: that substantial trial of the criminal aspect only. For sentencing is about Apprendi so function and its ly impairs truth-finding play, a into to come concerns Apprendi accuracy questions about raises serious already been must criminal defendant application of guilty verdiets[.]" A crime. underlying guilty of found the enhancement only affects Apprendi Apprendi claim raising an defendant has he or she onee sentence a defendant's a sen- received that he complaining simply beyond a reason- already been convicted sentencing the normal in excess of tence Therefore, rise to it does not doubt. necessary able or facts the fact range, without Winship or Mul- importance the level prov- having been permit such sentence judge to determine laney. Allowing the a reasonable en to pur- sentencing drugs for quantity Apprendi violation Thus doubt.... *35 ability jury's impair the not poses does impris- is a defendant mean that does not the de- regarding whether truth find the and made charge never on "a oned distributed, con- possessed, fendant most that by jury." The heard never drugs. some amount to distribute spired violation Apprendi that an be said is can on a imprisonment in a defendant's results Sanchez-Cervantes, States United sentenc- of which-the charge element one Cir.2002). (9th F.3d to a proven not ing enhancement-was words, have de- courts that In other The Su- doubt. jury beyond a reasonable Appren- retroactive effect extend clined to already "failure held that has preme Court following rely reason- d and to a a crime element of" [an] to submit (1) determine of fact will an issue ing: When error[. See] harmless may jury constitute ele- proved the government has States, 527 U.S. Neder United crime, beyond a reasonable proof of a ments 144 L.3d.2d (2) But when crucially important. is doubt Ap- that an to hold . .. We decline sentencing factor merely a fact is issue of an constitu comprises such violation prendi maximum the defendant's determine that will require retroactive as to "bedrock" tional doubt beyond a reasonable proof punishment, .... (8) Thus, though important. not so Paz, Ill.2d
People v. De La has been who holds that a defendant Ivan V. N.E.2d Ill.Dec. proof lesser standard under a convicted like this one: passages inAnd relief, the defen- matter when no can obtain requiring the that not believe We do entered, a defendant was dant's conviction drug quantity determinations jury make increased has been maximum sentence whose af- greatly doubt will beyond a reasonable proof is not enti- lesser standard under a isNor accuracy of convictions. feet the conviction relief if the defendant's tled to element. rule a bedrock this Apprendi and already final when drug violation was of a existence [The were decided. doubt. a reasonable beyond established have concluded say, these courts is to That error concerns alleged Apprendi The proof be- guarantee of process that the due sen- the defendant's an enhancement not so doubt is yond a reasonable finding by drug quantity based on tence affects being litigated the factual Therefore, accuracy of the judge. of the defendant's extent only the authorized is not at issue. underlying conviction only disputed fact is punishment-when an "element" rather than "sentencing factor" addition], argu Sanchez-Cervantes' [In of the offense. every extension because
ment is flawed flawed. reasoning is this I believe necessarily rule Winship is watershed rely on-the an dichotomy that these rules procedure. of a crime "elements" between Mullaney distinction Winship [v. Wil and
nounced very dichot- 44 bur, "sentencing factors"-is omy rejected Court put As Justice Blakely, Scalia it in the test
Apprendi, Blakely, and United States v. is whether the defendant's sentence was au
Booker.20 jury's or, thorized "the verdict alone" instead, sentencing "acquire[d] court [its] Booker, Apprendi, Blakely, the Su- authority only upon finding some additional
preme repeatedly declared that fact" jury.24 those found distinction between "elements" and "sentenc- ing assessing factors" is irrelevant when Justice Stevens returned to this theme- defendant's Sixth right Amendment "sentencing the labels factor" and "ele which, right trial-a under Sullivan v. Loui ment" are irrelevant for Sixth Amendment siana, necessarily includes the to de purposes-in United States v. Booker.25 The proof beyond mand a reasonable doubt.21 key problem Apprendi addressed in Apprendi, Blakely, and Booker stand for the Blakely, said, Justice Stevens was the ero proposition when the resolution of jury's sion of the traditional role determin issue of fact will determine the authorized ing a criminal defendant's guilt, level of as punishment, extent of the defendant's (and more and more states gov the federal defendant is entitled to demand that this fact ernment) adopted sentencing determinate proved beyond a reasonable doubt-re schemes-sentencing gave schemes gardless whether, law, under state judges power to resolve the factual dis issue of fact is labeled an "element" or a putes that would determine upper limit of "sentencing factor". punishment: the defendant's *36 point This length at in explained this that[, quite It is true under indetermi- Dague, Court's recent decision in State v. schemes,] sentencing nate judges common- (Alaska App.2006). P.3d 988 To summarize ly justifying determined facts [their] choice that discussion: 1986, of a heavier sentence.... [But in] The Apprendi Court declared in recognized [we] first a new trend in the the distinction between elements and legislative regulation of sentencing[: sen- sentencing provide factors "does princi not a tencing laws by under facts selected which] pled deciding basis" for whether defendants legislatures authorized, not or jury are entitled a trial particular on is mandated, even heavier sentences than is, sues of fact.22 That the Court declared would imposed, have been otherwise but right that the jury Sixth Amendment trial range possible increased the of sentences hinge does not particular on whether a issue underlying for the crime. ... properly of fact is labeled an "element" or a The increasing emphasis effect of the on Instead, "sentencing factor". the Court facts permitted] that enhanced [the sen- adopted what it a called "functional" test: tencing ranges ... was to increase the regardless particular of how a issue of fact is judge's power and diminish that of the law, classified under state a defendant has a Jury. judge, jury, It became the not the right to demand that by this fact be decided upper determined the limits of sen- jury, right a and a to demand that the fact be tencing, and.the facts [that] determined proved beyond doubt, a if reasonable resolu sentencing range] required [the were not tion of this against issue fact the defendant proved by be raised before trial or more subject
will greater the defendant to a maxi preponderance than a [of the evidence]. punishment mum than would otherwise be jury authorized verdict that did not Booker, 543 U.S. at at S.Ct. encompass this fact.23 (citations omitted). Booker,
20. UnitedStatesv.
543U.S.
125 23.
530 U.S.
Justice goes “only” law, disputed issue to the sentencing in “the Court
development ap- range of sentences. This preserving defendant’s [the] the issue faced with fundamentally contrary Appren- proach is jury a new guarantee [of under trial]
ancient Blakely. di and
set of circumstances”: sentencing practice forced the The new reasoning courts’ is dem- flaw these question how the address the [of] Court to onstrated fact that even when issues jury preserved [so trial could be right of crime, of fact “elements” are labeled guarantee], in a continue to that it would In perform these two functions. elements ¡. jury meaningful way[,] . that the would circumstances, proof some absence ’ and the stand between individual still distinguish between an element will defen- government the new of the power dants who should be declared innocent sentencing regime. guilty. But those who should be declared n
Booker, 237,125 often, the of an element will proof S.Ct. at 752. or absence who distinguish defendants should between answer, explained Apprendi as degree found crime guilty be of a lesser interpret Amend-
Blakely, was to Sixth guilty should be found those who trial, right guarantee as to ment so higher crime. degree of proof beyond a rea- and a to demand which, doubt, any issue if of fact sonable circumstance, though this latter penalty
proved, for the [defen- “increases may disputed of fact called pre- crime dant’s] [otherwise] “element”, like a it functions much sentenc- statutory maximum”.26 scribed ing prove fails government factor. If the fact, disputed will the defendant up jurispru- Scalia summed Justice acquitted, will face but the defendant a lower concurring opinion Ring dence his range of the criminal penalties for conduct. meaning fundamental “[T]he
Arizona: government proving If succeeds jury-trial guarantee of the Sixth Amendment *37 fact, disputed defendant then the will be imposition is all essential to of the facts guilty higher degree found crime of the of punishment the defendant re- level of will, consequence, higher face and a a as the statute them ele- ceives—whether calls (cid:127)range of penalties. factors, offense, or sentencing ments Mary jury be found be- Jane—must that, in such suggest No one circum- would .
yond at Ring, a doubt.” reasonable stances, right proof beyond a a defendant’s 610,122 S.Ct. at important is less doubt somehow reasonable because, disputed regardless of how ele- Blakely, all Apprendi, and Booker are decided, properly ment is will the defendant if
premised precept that on the constitutional degree guilty be found of some of crime. subject of an issue of fact the resolution will range a to an of criminal defendant increased this, essence, reasoning But is the em- penalties, regardless of label the then what ployed by that have the courts refused fact, government might attach to of this issue Apprendi extend retroactive (for fundamentally purposes it unfair of is Blakely. and courts have declared These of process clause the Fourteenth the due beyond a guarantee proof that the of reason-
Amendment) this to allow issue to be decided precious disputed able doubt is less rigorous proof than using a less standard of of fact will not determine whether , “beyond a reasonable doubt”. innocent, guilty or but will in- defendant is above, range many stead the defendant’s explained
As I determine analysis punishment. This is fundamen- Apprendi extend
refused to they tally at Court’s deci- that a odds with because concluded Blakely, beyond Apprendi, sions and Booker. proof to demand
defendant’s
Booker,
2362-63).
at 748
Apprendi,
(quoting
As Stevens tor Justice determines the defendant's maxi- penalty its concomi- mum for the offense. guarantee trial-with guarantee proof tant a reasonable dissenting opinion See the Judge being doubt-was eroded the enactment in Bockting Bayer, O'Scannlain 418 F.3d sentencing of determinate schemes under (9th Cir.2005): course, n. 2 "Of jury's subject
which the verdict at trial would sentences, accuracy relates to the range the defendant to a limited of sen- not see how [this] difference can be material, ... when the point of Blakely and the entire line of jurisprudence stemming from Apprendi is precisely that sentencing factors must be treated as [the equivalent of] elements of a crime when they increase the defendant's maximum sentence." underlying convictions. I do [But] tences, judge's and then the decision at the material, see how [this] difference can be sentencing hearing subject might the defen- point Blakely when the and the entire line penalty. dant to a much more severe jurisprudence stemming Apprendi from is precisely that sentencing factors must be majority opinion,
As noted in the a first
felony equivalent treated as [the first-degree offender convicted of sex elements of a of] they crime when increase the defendant's first-degree
ual assault sexual abuse of a maximum sentence."
minor years' faced maximum sentence of 8
imprisonment
pre-March
under the
2005ver
true, many
out,
It
pointed
as
courts have
presumptive
sion of Alaska's
sentencing
that when the
decision describes the
proved
law-unless
the State
one or more
types of rules that fall within the retroactivi-
aggravating
sentencing,
factors
which
ty exception
"procedures
for
implicit
are
case the defendant's maximum sentence be
concept
liberty", Teague
of ordered
years' imprisonment.27 Similarly,
came 40
paraphrases
exception
encompassing
this
as
felony
first
offender convicted of armed rob
only rules that
enforce "bedrock
bery
faced maximum sentence of either 5
elements [whose absence
vitiate the fair-
will]
years'
imprisonment-unless
or 7
the State
particular
ness of a
comviction ". 489 U.S. at
proved
aggravating
one or more
factors at
added).
(emphasis
assessing jeopardy the defendant's actual added). (emphasis offense, a criminal and the effect that a crim- inal convictionwould have on the defendant's apply Apprendi The courts that refuse to liberty, life was often more Blakely retroactively rely often on this prevail
for the defendant sentencing at the *38 language-in particular, Supreme Court's hearing than it was for the defendant to references "conviction"-to bolster their prevail Apprendi, Blakely, at trial. and Book- proof beyond conclusion that a reasonable proposition er all stand for the that it is important doubt is not so when the factual fundamentally subject unfair to a defendant being litigated only issues affect the defen- punishment to such increases unless the dant's maximum sentence. trigger greater factual that penal- issues Supreme But the Court's references to a ty proved beyond are a reasonable doubt. obviously spoken "conviction"were with
Thus, courts that have Apprendi Teague refused to ex- in mind-since application Apprendi
tend retroactive years and was decided Apprendi. eleven before wrong they are importantly, Supreme declare that More when though proof beyond a reasonable a doubt is crucial Court spoke ensuring the fairness and
component "conviction", process accuracy of due when appears of a that the being litigated
issue using is an element of the simply Court was the word offense, proof beyond and that a reasonable "conviction" as a shorthand for the true rule: is not ensuring accuracy
doubt so when the every the fairness and
being litigated "merely" sentencing fac- required factual determination to establish 12.55.125(i) 12.55.125(c) (pre-March (pre-March Former AS 2005 ver- 28. Former AS 2005 ver- sion). sion}.
56 (1993); v. 729, Miller nn. 32-33 P.2d 761 range punish- guilt and
the defendant's 803, State, 1, Md. 848A.2d 380 ment. granting relief based test for Just as the traditionally used a similar have
Courts for limited they the rule evidence is not newly discovered describe on
shorthand an probably produce that would to evidence is entitled
determining whether defendant exception for new "acquittal", newly discovered on
to a new trial based implicit ... "procedures establish instance, rules that both the Alaska Su For evidence. liberty" must not concept of ordered in the repeatedly have and this Court preme Court ensure the trial, procedures that be confined gain a new in order to
stated validity "con- of the defendant's newly fairness and discov prove must that the defendant Rather, encompasses exception produce an viction". "probably would ered evidence fairness and
acquittal".29 procedures that ensure the all findings regarding the de- validity judicial Defendants is not the true rule. But this culpability-including fendant's level they trial if show in fact entitled to a new are the defendant's findings that will determine would newly evidence
that discovered maximum sentence. any way jury's verdict probably affect the interpretation is confirmed This if there is to the defendant-even
favorable in Graham Supreme Court's decision- jury acquit the that would little chance 892, Collins, 461, 122 Clark, altogether. In re 5 See defendant 519, in Gro- 260 The defendant 541 nn. L.Ed.2d Cal.Rptr.2d 21 Cal.4th (1998) Texas; 729,739, nn. 32-83 761 to death had been sentenced ham relief, argu corpus sought he federal habeas whether the new evi (phrasing the test as improperly limited his ing that Texas "point[s] unerringly to innocence
dence ability present mitigating information culpability"); v. War
reduced Summerville Prison, ultimately decided to condemn den, 641 A.2d 229 Conn. State concluded (1994) him to death. The Court (quoting Su the California a "new rule" arguing that Graham language in In re Clark with
preme Court's is, was not clear State, N.E.2d approval); Bellmore v. (Ind.1992) (stating the test as prior decisions ly granted by the Court's then concluded this area. probably produce a
the new evidence "would
rule did not meet
proposed
Graham's
Vance,
result");
State
different
retro-activity.
(Minn.2006)
exception
to the bar
(stating
the test
second
N.W.2d
[The Teague exception is limited to] such procedures [as] would be ... central to an accurate determination of innocence or guilt.... [Teague,]
the test as whether the do not believe that result, is, at 1077. We "produced different jury instructions denying special Graham possi significant a substantial or
there was concerning mitigating trier of fact evidence
bility that the verdict of the his *39 positive youth, family background, affected"). would have been "seriously the diminish{ed] character traits grant a particular, courts will new trial obtaining deter- an accurate likelihood of newly evidence establishes if the discovered sentencing proceeding. in his mination" that, though the probability even substantial Accordingly, we find the second defendant,
jury the the would have convicted inapplicable . ... exception to be have voted for the death would not Graham, 478, at 908. at 506 U.S. 21, Herrera, 176 Ariz. 859 penalty. State important thing (1998); Clark, purposes, the 1831, present 4th For In re 5 Cal.
P.2d 137 509, 82-883, 750, nn. Cal.Rptr.2d 21 541 855 denied Gra- Supreme that the Court is not State, 404, (Alaska State, App.1995); 780 P.2d Charles v. 406
29. James v. (AlaskaApp.1989). (Alas- 2004); State, 373 P.2d Salinas v. 1962); ka Lewis majority Rather, thing explained opinion, in this the is Court's
ham relief. "accuracy" of a verdict in a criminal case handled Graham's Supreme
how the Court necessarily that the verdict tell Graham that does not mean
claim. The Court did not any accurately true facts of the inci- Teague test because reflects the
his claim failed the Rather, jury's being litigated. deci- dent as the Alaska
potential related to the flaw penalty, Supreme Depart- rather than in Shaw v. impose the death Court
sion
(Alas-
Administration,
ment
to the of 19983), principle Rather, relief to ka our law's insistence on the Supreme Court denied beyond actually proof concluded a reasonable doubt because the Court
Graham sacrificing goal fact- might required to let entails of accurate
even if Texas have been finding important goal: mitigating evidence he favor of a more present
Graham
wanted, government purported goal precluding to honor this from the failure "seriously inflicting penalties dimin- on a defendant did not obtaining possibility an accurate when there is a reasonable the likelihood of
ish[ ] sentencing pro- things not do the the defendant did [Graham's ]
determination added) subject to those
ceeding." (Emphasis would make defendant penalties. at 571. Id. Summerlin,
Similarly, in Schriro v. 159 LEd.2d Thus, an "accurate" verdict in a criminal
(2004), quot- though preserves is a this latter case verdict ensuring ac- Teague's language about principle: principle pen-
ed that no eriminal Id., "conviction", at
curacy of a alty proof shall inflicted in the absence in fact at the Court was beyond S.Ct. doubt of all the facts reasonable sentencing
dealing with the fairness of a necessary punishment. to authorize that being litigated procedure. The factual issues York,30 City In Ivan V. v. New determine, not the de- Summerlin would full United States Court extended innocence, guilt rather fendant's but. require to the constitutional the defendant would be subjected necessary that all facts to establish the ment capital punishment. guilt proved beyond a reason defendant's 2524-26. Apprendi doubt. Now that able words, Teague excep- In other the second requirement of have clarified that this same
tion is not limited to rules that ensure proof beyond applies a reasonable doubt accuracy
fundamental fairness and de- necessary equally that are to the facts exception
fendant's conviction. This also en- punish maximum establish defendant's
compasses procedures to rules that establish ment, principled I see no reason to refuse fairness and aceura-
ensure the fundamental were relief to defendants who fundamentally
cy findings of fact that determine the It unfair right. denied this of the punishment.
defendant's level years- keep prison a defendant decades-longer than the other perhaps for reasons, For these I conclude that impris presumptive wise authorized term pro- of rules of allows retroactive government onment has never the fundamental fairness cedure ensure longer proved the facts that authorized the judicial decision-making governed sentence a reasonable doubt. Blakely-i.e.,
Apprendi decisions re-
garding facts that determine a defen- I must be therefore conclude punishment. And the re- dant's maximum retroactivity under the accorded full quirement proof beyond a reasonable test.
doubt is a rule that ensures the fundamental *40 decisions.
fairness these context, "fairness" and "accura-
cy" something different of a decision means accuracy of that decision.As
from the factual 203, 204-05, L.Ed.2d 659
30. 407 U.S.