SENTENCING RULING DELAYS HEARINGS

Supreme Court Limits Penalties To What Jury Hears

A U.S.  Supreme Court decision handed down last week could mean an overhaul of the way criminal cases are handled in the federal court system as well as delayed sentencing hearings, West Virginia federal judges and lawyers said Tuesday.

They are scrambling to make sense of last week's decision by the court in Blakely v.  Washington, a case that throws into doubt the way convicts are sentenced at the federal level.

U.S.  District Judge Robert Chambers canceled a sentencing hearing Monday in Huntington to give attorneys time to study the Supreme Court decision's impact.  Other federal judges in the state say the decision could mean delays in their courtrooms.

A judge cannot add time to a convict's sentence based upon facts not considered by a jury, the U.S.  Supreme Court ruled last week.  While the case applies only to the state of Oregon's sentencing laws, legal scholars believe it could also apply to the federal sentencing system, which is similar to the one in Oregon.

In West Virginia's state courts, a judge has the discretion to sentence defendants to prison time between the minimum and maximum lengths set by the state Legislature.

The federal system is much more complex.  Congress also sets minimum and maximum sentences but it also specifies rules for federal judges to follow within the minimum and maximum.  The rules are an attempt to ensure that the same crimes carry the same sentences no matter what part of the country a convict is in.

Some drug crimes, for example, could carry a minimum sentence of five years and a maximum sentence of 20 years.  A federal judge is further constrained by federal sentencing rules set by Congress.  Those sentencing rules set a range within a range, often depending on the amount and type of "relevant conduct" for which the convict is responsible.

If a defendant has a prior criminal record, used a gun while committing a crime or had a certain amount of drugs, the range within the range is often closer to the maximum set in the law.

In its ruling last week in Blakely v.  Washington, the Supreme Court said an Oregon court couldn't increase the sentence of a man convicted of kidnapping based upon facts adopted by the judge in the case.  The court ruled that the facts must be run past a jury before a judge can jack up a sentence based on them.

The ruling has judges and lawyers in West Virginia wondering what to do.

"It's a huge decision that has enormous consequences," said U.S.  District Judge Joseph R.  Goodwin.  "Every federal judge in the country recognizes that this case presents substantial and difficult issues that are pervasive.  No judge approaches sentencing now without being mindful of the potential impact."

On Thursday, Goodwin is scheduled to sentence two men, Terrence Askew and Joshua Gray, who have pleaded guilty to drug crimes.  The sentence Goodwin passes down would normally take into account their relevant conduct, said Askew's lawyer, Mark French of Charleston.

French was one of the lawyers who asked for a delay Monday in a criminal sentencing case he had before Chambers, taking into account the Supreme Court ruling.  French said he asked for the delay because he was not prepared to discuss the relevant conduct issues in light of the decision.

U.S.  District Judge John T.  Copenhaver Jr.  said he may be forced to delay sentencing hearings where federal prosecutors and defense attorneys cannot agree on the facts of relevant conducts.

Charleston attorney Troy Giatras, who handles federal criminal cases at the same firm as French, said the decision might cork the flow of cases through the federal system, in which more than 90 percent of criminal cases are handled through plea agreements between defendants and prosecutors.

Giatras speculated on several possible changes in the way federal courts operate, including:

Federal prosecutors would have to be more specific in crafting indictments for federal grand juries to hand down against defendants.  The indictments may have to include relevant conduct, such as the amounts of drugs present, in order for that information to be taken into account at sentencing.  Prosecutors could seek to include relevant conduct information in plea agreements between defendants and the U.S.  attorney.  Giatras said one assistant U.S.  attorney has already tried to insert relevant conduct in a plea agreement between prosecutors and one of his clients.  "That's going to become problematic," Giatras said.  "It means we would have to prospectively concede points that there may not be clear evidence of."

Judges could have to empanel a jury during sentencing - even if a defendant has pleaded guilty - to decide the factual basis of relevant conduct taken into account at sentence.  Having a jury for sentencing would be costly in both money and time.  The whole federal sentencing system itself could be declared unconstitutional or at the least unworkable, given the time and expense of the above options.  No doubt many judges and defense attorneys would prefer that outcome.  Judges have been critical of the system for years because it removes much of their discretion.  "Internally, it may shift powers within the three realms among prosecutors, probation officers and judges," Giatras said.  Probation officers investigate convicts and prepare the presentence report used by judges to determine relevant conduct.

Giatras said his firm is also combing through its past criminal cases to determine which ones are ripe to take back to court and possibly get a reduced sentence under the Blakely ruling.

U.S.  Attorney Kasey Warner's office has declined to comment on the impact of the Blakely case here.  Defense attorneys at the federal public defender's office have not returned telephone calls over the last two days.  The federal public defender's office plans a seminar Thursday to discuss the Blakely case and its impact.

For now, Goodwin plans to "go to the hearing Thursday and see what happens." He said the situation will play out in appellate courts across the country over the next few weeks and months and it will become clearer what trial courts are supposed to do.