Sunday, March 20, 2005

High Court again expands Apprendi, Jones, and Blakely doctrines.

In Shepard v. United States the United States Supreme Court again expanded the scope of defendant's rights with respect to what types of evidence are sufficient to support findings of certain prior convictions and the conduct that allegedly happened in those prior cases.

Click here for full case:

http://a257.g.akamaitech.net/7/257/2422/07mar20051115/www.supremecourtus.gov/opinions/04pdf/03-9168.pdf

The trial Court in Shepard found that the defendant had three or more burglary convictions and hence enhanced his sentence at the request of the Government. The Armed Career Criminal Act makes burglary a 'violent' felony if it is committed in a building, or enclosed space (i.e. a "generic burglary"), as opposed to a vehicle (the common distinction between first and second degree burglary in California). The trial court had attempted to enhance Shepard's sentence from 37 months to over fifteen years based upon materials found in police reports.

The Supreme Court disapproved this practice. Following Apprendi v. New Jersey, and Jones v. United States, the Supreme Court stated that in 'guilty plea' cases there are only certain types of records that can lawfully support a later specific factual findings of that offense. When attempting to prove a prior for purposes of enhancing a sentence, a transcript of the Rule 11/plea hearing, a written plea agreement, or some sort of on-record plea colloquy or factual basis must be the factual predicate or basis for proof of the facts of the prior.

Defense counsel must now attempt to factually limit and to be as circumspect as possible in their plea allocutions, whether in plea agreements or allocutions. In San Diego Superior Court (and California courts in general), defense counsel should no longer stipulate to the inclusion or incorporation by reference of police reports or transcripts of preliminary examinations as the factual basis to support pleas. This maxim is especially true in drug cases and violent offenses (or other strikes).

Chip Venie


Chip Venie is a criminal defense attorney in San Diego California. Mr. Venie has represented more than 600 defendants in state and federal criminal proceedings throughout California and the United States. Please call (619) 235-8300 for more information.

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