Wednesday, July 10, 2013

Proof about prior convictions

We have been spending a lot of time focusing on the recent Alleyne decision and its ramifications. But, as Professor Douglas Berman aptly noted (here), the SCOTUS did decide another case with potential Apprendi ramifications at the end of its term: Descamps v U.S., No. 11-9540 (U.S. June 20, 2013). On first review, it looked like another Armed Career Criminal Act case, which does not tend to pique my Kansas state practice interest. But here is why it may be important:

A long time ago (after Apprendi) we argued that, although Apprendi left a "prior conviction exception," that exception should be limited to the fact of the prior conviction, not other facts proved by extrinsic evidence about the prior conviction.

A common example of this is proof of the prior/nonperson nature of pre-1993 burglary convictions in Kansas. Before 1993, it didn't matter whether a burglary was of a residence or just some other building. After 1993, it makes a big difference in criminal history (burglary of a residence is a person felony, which is much worse for criminal history purposes). So how do we count pre-1993 convictions today? The statute says the judge looks back at the surrounding facts of the prior burglary-if it was of a residence classify it as a person felony. The problem, is that this finding requires determination of facts about the prior conviction, not just the fact of the prior conviction. Often times court services officers simply brought in charging documents specified burglary of a "home" or other extrinsic evidence But that was merely surplusage at the time--it was not a well-pleaded fact.

We raised this after Apprendi with no success in many cases and some have continued to raise it without success. But look at this language from Descamps discussing how the federal court would classify a prior California burglary conviction under the ACCA at page 14 of the majority opinion:
Similarly, consider (though Aguila-Montes did not) the categorical approach’s Sixth Amendment underpinnings. We have held that “[o]ther than the fact of a prior convic­tion, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U. S. 466, 490 (2000). Under ACCA, the court’s finding of a predicate offense indisputably increases the maximum penalty. Accordingly, that finding would(at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction. Those concerns, we recognized in Shepard, counsel against allow­ing a sentencing court to “make a disputed” determination “about what the defendant and state judge must haveunderstood as the factual basis of the prior plea,” or what the jury in a prior trial must have accepted as the theory of the crime. 544 U. S., at 25 (plurality opinion); see id., at 28 (THOMAS, J., concurring in part and concurring in judgment) (stating that such a finding would “giv[e] rise to constitutional error, not doubt”). Hence our insistence on the categorical approach.

Yet again, the Ninth Circuit’s ruling flouts our reasoning—here, by extending judicial factfinding beyond the recog­nition of a prior conviction. Our modified categorical approach merely assists the sentencing court in identify­ing the defendant’s crime of conviction, as we have held the Sixth Amendment permits. But the Ninth Circuit’s reworking authorizes the court to try to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct. See Aguila-Montes, 655 F. 3d, at 937. And there’s the constitutional rub. The Sixth Amendment contemplates that a jury—not a sen­tencing court—will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting ele­ments of the offense—as distinct from amplifying but legally extraneous circumstances. See, e.g., Richardson v. United States, 526 U. S. 813, 817 (1999). Similarly, as Shepard indicated, when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment. See 544 U. S., at 24–26 (plurality opinion). So when the District Court here en­hanced Descamps’ sentence, based on his supposed acqui­escence to a prosecutorial statement (that he “broke and entered”) irrelevant to the crime charged, the court did just what we have said it cannot: rely on its own finding about a non-elemental fact to increase a defendant’s max­imum sentence.

This seems right on point. If a judge has to look beyond the statute to figure out something about a prior conviction, Apprendi applies.

So I think you should be object to any pre-1993 burglary conviction being scored as a person felony. Because there is no constitutional mechanism to allow juries to make these findings, all pre-1993 prior burglary convictions should be scored as nonperson.

This is just one example. There are probably others. Classification of out of state convictions (including whether out of state DUI convictions are equivalent to Kansas DUI convictions)? Predicate offenses under many statutes? Whether a prior conviction involved sexual motivation? Basically, any time the judge is finding facts about a prior conviction, not just the fact of the prior conviction, you could (and should) argue that Apprendi applies.

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