Is Failure to Submit a Sentencing Factor to the Jury a Structural Error?

Washington v. Recuenco

Recuneco fought with and assaulted his wife and then threatened her with a gun. The jury found him guilty on the charge of assault “with a deadly weapon.” The State did not seek the standard 1 year enhancement for the use of a deadly weapon, but rather sought a 3 year enhancement for the use of a gun specifically. A gun is a deadly weapon under Washington law. The trial judge granted the firearm enhancement, contrary to Apprendi which requires any fact that increases the punishment for a crime beyond the statutory maximum must be submitted to a jury and Blakeley which defined that “statutory maximum” as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Emphasis in original). The Supreme Court of Washington declared Blakeley errors to be structural errors and not subject to harmless-error analysis. The question is the propriety of that decision.

First, respondent argues that the Court may not overturn the Washington Supreme Court’s decision because it rested on independent state grounds. No procedure existed, nor was the Washington Supreme Court willing to create (according to him) one, for a jury to decide that he used a firearm, as opposed to a deadly weapon. Therefore, harmless-error analysis is impossible. The Court accepts that this might be an argument for why the violation in this particular case was harmless, but points out that this does not necessarily imply that Blakely error can never be harmless.

Then comes that line I pointed out a few weeks ago: “We have repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal.” Quoting Needer v. United States Justice Thomas implies that the rule is based on “fundamental fairness” and that the only errors that are structural are those that violate that protection. Citing the lack of a distinction between sentencing factors and elements of a crime at the time of the founding, Thomas notes that the Court has treated sentencing factors as elements by requiring that they be tried to the jury and proved beyond a reasonable doubt.

Respondent argues that because the jury delivered a guilty verdict on assault in the second degree, and an affirmative answer to the sentencing question, to combine the two would be tantamount to a directed verdict for assault in the second degree while armed with a firearm, and would “hypothesize a guilty verdict that [was] never in fact rendered.” The Court, arguing that Needer rejected the lower court’s idea that the jury had rendered a complete verdict, but still allowed harmless-error analysis, does not accept the distinction.

Justice Kennedy, again, hedges his support for the majority by stating Apprendi and Blakeley “were accompanied by dissents. The Court does not revisit those cases today, and it describes their holdings accurately. On these premises, the Court’s analysis is correct.” I think this is evidence for Kennedy’s (the new swing voter) lukewarm support for this area of the Court’s development.

Justice Stevens suggests that the Supreme Court of Washington can reinstate its prior ruling on the basis of state law, and that this case did not address the question of whether “Blakely errors are structural because they deprive criminal defendants of sufficient notice regarding the charges they must defend against.” He even mentions Brigham City and Marsh.

Justice Ginsburg argues that the Jury ruled, without error, and completely, and that the harmless-error rule was not created to dislodge proper (though ill conceived) convictions. As opposed to Needer, where the trial judge made a determination to fill a gap in the jury’s determination, the verdict here, according to Justice Ginsburg, “contained no omissions; they set out completely all ingredients of the crime of second degree assault with a deadly weapon.” She calls this a “greater excluded offense notion.”