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.