PRESS RELEASE

WASHINGTON CASE COULD FORCE RESENTENCING OF THOUSANDS OF CRIMINALS

A domestic violence case which will be argued before the United States Supreme Court on Monday could require the resentencing of thousands of criminals in many states.  In the case of Washington v. Recuenco, the issue before the Court is whether its 2004 ruling in Blakely v. Washington, which changed procedures the state and federal courts must follow to sentence criminals, invalidates the sentence in a criminal case on appeal when the ruling was announced.  The California-based Criminal Justice Legal Foundation has joined the case to encourage a decision which would allow the lower courts to determine if sentences handed down under pre-Blakely procedures amounted to “harmless error” in some cases.

“This is one of many cases where the procedural change required by the Blakely decision would have had no effect on the defendant’s sentence,” said Foundation Legal Director Kent Scheidegger.  “A decision allowing the state courts to make a harmless error determination in such cases would prevent the unnecessary reversal of thousands of correct sentences,” he added.

    The Recuenco case involves the 1999 conviction and sentence of Arturo Recuenco for assault with a deadly weapon during a domestic violence incident in which he threatened his wife with a gun.  On September 18 of that year, police responded to a 911 call from Recuenco’s wife.  When they arrived, she reported that, in a fit of rage, her husband had smashed the top of the kitchen stove to pieces with a pipe, pointed a loaded gun at her while threatening to kill her, and pulled the phone jack out of the wall when she attempted to call the police.  At the trial, in addition to the wife’s testimony, the arresting officer described the damage to the stove, the phone jack torn from the wall, and how he found Recuenco’s loaded gun.

The jury found Recuenco guilty of assault and also found that he was armed with a deadly weapon.  In accordance with state law, the judge sentenced him to three months for the assault and three years for the use of a firearm.

On appeal, Recuenco claimed that the sentence for his use of a firearm violated his right to a jury trial because the jury’s finding that he was armed with a deadly weapon did not specify that the weapon was a gun.  The appellate court denied the claim, ruling that even if the jury’s finding was not specific, it was harmless error.  The court noted that no other weapon but the gun had been mentioned in connection with the assault.  Following this ruling, the United States Supreme Court announced its decision in Blakely v. Washington, which requires that any factor that increases the maximum sentence must be considered as an element of the crime and found beyond a reasonable doubt by the jury.  In Recuenco’s case, the decision would have required the jury to specifically find that he was armed with a firearm during the assault on his wife.

In its review of Recuenco’s claims, the Washington Supreme Court reversed the Court of Appeals, ruling that sentencing a defendant in violation of the procedures required by the Blakely decision (Blakely error) could never be harmless.

When the United States Supreme Court agreed to hear Washington’s appeal of that ruling, the Foundation filed an amicus curiae (friend of the court) brief in the case.  The Foundation argues that the Washington Supreme Court’s ruling that Blakely error could never be harmless misinterpreted other Supreme Court decisions.  Those precedents allow convictions and sentences handed down under procedures which were later changed to be judged as harmless error.  The standard for such a judgment is whether the guilt verdict or sentence would have been the same beyond a reasonable doubt under the new procedures.  Recuenco’s sentence would have undoubtedly been the same.  This is also true of the sentences of thousands of other criminals whose appeals were pending when the Blakely decision, and the subsequent decision in United States v. Booker, changed sentencing rules nationally.  The Foundation is encouraging a Supreme Court decision that will allow the states to use harmless error analysis to uphold valid and appropriate sentences handed down before the new rules were announced.

“It would be a terrible injustice to give criminals a windfall because their cases happened to be pending on appeal when the Supreme Court changed the rules,” said Scheidegger.  “In a case such as this, where the jury found all the facts in genuine dispute, there is no reason to overturn this well-deserved sentence,” he added.