Metropolitan News-Enterprise


Monday, April 18, 2005


Page 1


U.S. High Court Ruling on Jury’s Role in Sentencing Does Not Apply Retroactively, Court of Appeal Rules


By a MetNews Staff Writer


The U.S. Supreme Court’s ruling last year that generally bars sentence increases  based solely on facts that have neither been found by a jury or admitted by the defendant does not apply retroactively to cases that were final before it was handed down, the Fourth District Court of Appeal ruled Friday.

Div. One denied a habeas corpus petition by Sam Consiglio, who contends that his aggregate 33-year prison sentence, including upper base terms and consecutive terms based on findings by the sentencing judge rather than the jury, is unconstitutional.

The issue of whether Blakely v. Washington (2004) 124 S.Ct. 2531 requires changes to California procedures permitting judges to decide whether to impose upper base terms and/or consecutive sentences for offenses tried together is now pending before the state Supreme Court.

But Presiding Justice Judith McConnell, writing for the Court of Appeal, concluded that even if changes are required, the U.S. Constitution would not compel that they be applied retroactively.

The presiding justice explained that new rules of constitutional interpretation in criminal cases are not retroactive unless they are “watershed” holdings “implicating the accuracy of the proceedings.”Applying that principle, McConnell noted, the Supreme Court held last year that its ruling barring imposition of death sentences based on facts found by the judge rather than the jury is not retroactive.

Similarly, the decision in Blakely is not retroactive, McConnell concluded.

Blakely, she noted, built upon an earlier decision, Apprendi v. New Jersey  (2000) 530 U.S. 466, which has been held not to be retroactive by five federal appeals courts, including the Ninth U.S. Circuit Court of Appeals.

The jury fact-finding required by Blakely and Apprendi, McConnell reasoned, is a procedural protection for the defendant, but not one that is essential to a fair and accurate trial.

The panel also rejected Consiglio’s contention that the sentencing judge, San Diego Superior Court Judge Bernard Revak, was unaware of his discretion to impose concurrent terms.

McConnell explained that trial judges are presumed to understand the extent of their sentencing discretion, so the burden is on the defendant to show that the judge lacked such understanding in a specific case.

Consiglio, who brought the habeas corpus petition in pro per but was represented by appointed counsel in the Court of Appeal, based his contention on a series of letters reflecting correspondence between himself and Revak. But those letters—including one in which Revak explained that he no longer had jurisdiction and could not change the sentence—did not reflect on the judge’s understanding of his sentencing discretion, McConnell said, so Consiglio did not carry his burden.

The case is In re Consiglio, 05 S.O.S. 1873.


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