☢ test - Í

whimsical or unrelated to the victim it may be, but for which proof beyond a reasonable doubt might exist” – e.g., competing sports loyalties, political leanings, or car preferences. Garmon v. State, 269 Ga.App. 795, 605 S.E.2d 606 (September 30, 2004). Trial court properly “determined that it was required to impose on Garmon a mandatory 25-year prison sentence” upon his conviction for possession of more than 400 grams of methamphetamine. OCGA § 16-13-31(h) provides generally for sentences of five to thirty years for methamphetamine possession, but subsection (e)(3) requires a mandatory minimum term of 25 years “if the quantity of methamphetamine equals or exceeds 400 grams.” Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (June 24, 2004). Defendant “pleaded guilty to the kidnaping of his estranged wife. The facts admitted in his plea, standing alone, supported a maximum sentence of 53 months. Pursuant to state law, the court imposed an ‘exceptional’ sentence of 90 months after making a judicial determination that he had acted with ‘deliberate cruelty.’” Defendant objected to this finding and contends that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), he was entitled to a determination of this fact by a jury since it increased the maximum sentence to which he was subject. U.S. Supreme Court agrees with defendant in a 5-4 decision written by Scalia, even though sentence only exceeded sentencing guidelines, not maximum sentence for class B felonies. “ Our precedents make clear … that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. See Ring [ v. Arizona, 536 U.S. 584, 613, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)] at 602 (‘“the maximum he would receive if punished according to the facts reflected in the jury verdict alone”’ (quoting Apprendi, supra, at 483, 120 S.Ct. 2348)); Harris v. United States, 536 U.S. 545, 563, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion) (same); cf. Apprendi, supra, at 488, 120 S.Ct. 2348 (facts admitted by the defendant). In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Emphasis in original.) Majority suggests states may simply obtain waivers of jury findings of fact as part of any plea arrangement; dissents raise concern that all sentencing guidelines are jeopardized. Distinguished in Hill v. State , 282 Ga.App. 743, 639 S.E.2d 637 (December 7, 2006) (“While the finding that the defendant in Blakely acted with ‘deliberate cruelty’ was an essential element used to increase his sentence, Hill’s status as a party to the crimes in question did not increase the sentences he received. As a result, Blakely did not require that the State indicate in the indictment that it was charging Hill with being a party to the crimes, and the trial court did not err in instructing the jury that Hill could be convicted of being either the principal perpetrator of the crimes or of being a party thereto.”). Head v. Hill , 277 Ga. 255, 587 S.E.2d 613 (October 6, 2003). Habeas court erred in granting defendant’s petition for relief from his death sentence; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which “held that facts which determine the upper limit of punishment for particular criminal conduct must be proved to a jury unless, of course, the right to a jury is waived by the defendant,” does not establish “a constitutional requirement that a jury determine the question of mental retardation regardless of the procedural posture of a case.” In this case, Hill claims that he is not subject to the death penalty due to mental retardation; but Hill has procedurally defaulted on that issue “[b]ecause Hill did not seek a jury determination of his alleged mental retardation at trial.” “At his trial, Hill presented evidence of his intellectual slowness, but his psychological expert testified that Hill had an intelligence quotient of 77 and was not mentally retarded. Hill did not request that the jury be charged on a ‘guilty but mentally retarded’ verdict.” Thus, “Hill is now entitled only to have the habeas court determine, as this Court directed on remand, whether a miscarriage of justice would result if Hill were executed, in light of his alleged mental retardation.” 1. Ring not applied retroactively to cases no longer in the “pipeline,” like Hill’s habeas petition. “A new rule of criminal law will have retroactive effect if it falls within one of the following two exceptions: new rules that place certain conduct beyond the power of the State to proscribe, that is, a change in substantive criminal law; and, watershed rules concerning procedures that are implicit in the concept of ordered liberty and that implicate the fundamental fairness and accuracy of the criminal proceeding. See Bousley v. United States, 523 U.S. 614, 619-620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Teague v. Lane, 489 U.S. 288, 311(V), 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion).” Ring’s holding falls within neither exception: “we find that the fundamental fairness and accuracy of determining mental retardation would not be increased by having a jury rather than a trial judge make the determination.” 2. Ring doesn’t require jury determination of mental retardation in all death penalty cases. Rather than being a ‘fact which determines the upper limit of punishment, “a claim of mental retardation is a means by which a death penalty defendant may seek to have his possible sentence limited despite the fact that the statutory elements for the death penalty might be present.” The court in Ring “did not find a jury trial right for factors in mitigation of punishment, such as mental retardation. Ring v. Arizona, supra at 597(II), fn. 4, 122 S.Ct. 2428. … [W]e conclude that the absence of mental retardation is not the functional equivalent of an element of an offense