Wednesday, June 28, 2006

S. Ct. Reverses Recuenco

The Supreme Court reversed a case in which the Washington Supreme Court unanimously held that a sentence could not stand because of a Blakely violation. Washington v. Recuenco, No. 05-83 (June 26, 2006)(reversing State v. Recuenco, 154 Wash. 2d 156, 110 P.3d 188 (2005), (In another case, the Washington court had held that Blakely errors are never harmless. State v. Hughes, 154 Wn.2d 118 (2005),

The defendant, Recuenco, was charged with second degree assault. The "deadly weapon" allegation in the information was: "being armed with a deadly weapon, to-wit: a handgun." The jury found (in a special verdict form) that he did have a deadly weapon. The prosecutor sought a firearms enhancement because the weapon he'd had was a handgun. The trial court imposed a sentence enhancement of 3 years (because of the firearm) rather than 1 year (the enhancement for a deadly weapon). The Washington Supreme Court, finding this violated Apprendi and Blakely, vacated the sentence and remanded for sentencing supported only by the special verdict finding of a deadly weapon.

The U.S. Supreme Court, in an opinion by Justice Thomas, held that "Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error." -- and therefore, it could be harmless error, depending on the circumstances. The case is remanded to the Washington Supreme Court for further proceedings. Justice Kennedy concurred and Justices Stevens and Ginsburg dissented.

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