More Blakely Stuff - “Particular Cruelty” Is Not a Jury Question.

State v. Rourke, Minn.S.Ct., 10/22/2009.  Mr. Rourke pled guilty to first degree assault, and agreed to an upward sentencing departure;  all this was before Blakely.  On appeal, the Supreme Court reversed and remanded.

At the Blakely sentencing trial, the state wanted to submit four aggravating factors:  the plea agreement; particular cruelty; abuse of a position of power; and vulnerability of the victim.  The trial court rejected the plea agreement and abuse of a position of power because the sentencing guidelines did not specifically list them.  At the end of the Blakely trial the defense argued that the particular cruelty factor was unconstitutionally vague.  The trial court reserved ruling on this challenge and  submitted two interrogatories to the jury:

(1) Was [the victim] treated with particular cruelty on January 28, 2003? and (2) Was [the victim] particularly vulnerable on January 28, 2003, due to age, infirmity, reduced physical capacity, or reduced mental capacity?

The jury found that the victim had been treated with particular cruelty.  The trial court then tossed that finding, concluding that the term, particular cruelty, was unconstitutionally vague and that the courts had no authority to provide jurors with a definition of the term.  The Court of Appeals tossed all of that back, saying that the term, particular cruelty, is not unconstitutionally vague, that the trial court should have submitted the abuse of a position of power factor to the jury, and that the trial court should have provided an instruction on particular cruelty in line with the definition given in State v. Weaver, 733 N.W. 2d 793 (Minn.Ct.App. 2007):  conduct “significantly more cruel” than that usually associated with the offense of conviction.

The appellate court rejects the “particular cruelty” vagueness challenge.  It does so by distinguishing the role of the jury from that of the judge.  The jury’s role is to find “additional facts” upon which the court may (or may not) then rely as a substantial and compelling basis for imposing a sentence that departs from the guidelines.  Under this construct, “particular cruelty” is a reason for a departure, not a fact of departure.  This means that the trial court is the initial gatekeeper and must decide whether a particular fact or set of facts would, if proved, provide it with a substantial and compelling reason to depart.

The appellate court ducked the abuse of power question, concluding that because the state did not have a right of appeal on this issue, at least before the amendments to the criminal rules following Blakely. 

Justice Paul Anderson dissents, arguing that “particular cruelty” is a fact that must be found by a jury because it exposes a defendant to an enhanced sentence.  He points to pattern jury instructions from Washington State and Alaska, which provide a more precise definition of “particular cruelty.”  The dissent also argued that a vagueness challenge should apply to sentencing factors.