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State v. Lackey9/30/2005
e cited the following from United States v. Paycheck-Zepeda, 234 F.3d 411, 414-15 (9th Cir. 2001):
"'Although Apprendi does refer to the fact that the defendant in Almendarez-Torres did not challenge the accuracy of his prior convictions, nowhere does Apprendi limit Almendarez-Torres to cases where a defendant admits prior aggravated felony convictions on the record. [Citation omitted.] To the contrary, Apprendi held that all prior convictions--not just those admitted on the record--were exempt from Apprendi's general rule and, under Almendarez-Torres, may continue to be treated as sentencing factors.'" (Emphasis added.) Ivory, 273 Kan. at 47.
The defendant distinguishes the KSGA from the HCA where the indeterminate sentencing provisions did not require criminal history to be taken into account at sentencing but were only considered upon motion of the prosecuting attorney. See K.S.A. 1982 Supp. 21-4501; K.S.A. 1982 Supp. 21-4504. He argues criminal history is not mechanically applied to compute an offender's sentence under the HCA but is used to enhance the maximum sentence under indeterminate sentencing. He argues that the United States Supreme Court would now decide Almendarez-Torres differently based on Apprendi. However, the defendant's argument fails in light of the following recent cases.
In Blakely v. Washington, 542 U.S. 296, 159 L.Ed. 2d 403, 124 S.Ct. 2531 (2004), the United States Supreme Court held that the state trial court's sentencing of the defendant to more than 3 years above the 53-month statutory maximum of the standard range for his offense, on the basis of the sentencing judge's finding that the defendant acted with deliberate cruelty, violated his Sixth Amendment right to a trial by jury. In so finding, the majority identified its analysis as an application of the Apprendi rule: "Other than the fact of a prior conviction . . . " and concluded that the "'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 159 L.Ed. 2d at 412-13.
In United States v. Booker, __ U.S. __, 160 L.Ed. 2d 621, 125 S.Ct. 738 (2005), the Court applied the principles of Apprendi and Blakely to the mandatory provisions of the federal sentencing guidelines and found them unconstitutional as far as they required judges to find facts by a preponderance of the evidence for the imposition of aggravated sentences. To remedy the constitutional infirmity created by applying judge-found facts to the guidelines, the Court severed the provision of the federal sentencing statute that made application of the guidelines mandatory. However, the Court specifically reaffirmed its holding in Apprendi: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." (Emphasis added.) 160 L.Ed. 2d at 650.
In State v. Shepard, __ U.S. __, 161 L.Ed. 2d 205, 125 S.Ct. 1254 (2005), the Supreme Court held that a trial court may not look to police reports or complaint applications of a prior plea to determine if the prior conviction constituted a violent felony so as to be used to enhance a sentence under the Armed Career Criminal Act, see 18 U.S.C. § 924 (2000), but it may examine the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. The Court reasoned in part that while the disputed fact may be described as a fact about a prior conviction, "it is
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