Source: (2007) Ohio State Law Journal. 68(5): 1307-1385.

Blakely v. Washington's potential impact on hidden sentencing proceedings has been almost entirely unexplored. ... If the definition of "statutory maximum" is itself limited to only the actual length of time the offender spends in prison, as opposed to all the other ancillary sentencing proceedings that can increase an offender's punishment, then Blakely's scope is considerably constricted. ... First, as others have noted, a number of "sentencing determinations depend on judicial findings of prior conviction facts (even in states without guideline systems), and . . . many pre- Blakely sentences have been affirmed post-Blakely by relying on the prior conviction exception," which itself hangs on the continuing validity of Almendarez- Torres. ... I include six types of proceedings: (1) pre-sentence reports; (2) persistent felony offender enhancement schemes; (3) probation; (4) parole; (5) post-release supervision; and (6) restitution. ... It is instructive, then, to parse out what parts of the PSR may not comport with Blakely's requirement that juries find all facts that increase an offender's punishment. ... The California trial court has the discretion to direct a probation officer to "investigate all facts relevant to the sentencing of the person," which presumably includes any fact-finding about the offender relevant to restitution. (Author's abstract)