Baehl v. State: First Blakely Reversal--NFP

It's hard to believe, but the first Indiana case actually to apply Blakely, instead of temporizing more or less inventively, has come out in an unpublished opinion: Baehl v. State, which Marci Oddi has been kind enough to put up on her amazing site, The Indiana Law Blog. (Emphasis added):

Our supreme court has not yet examined the viability of Indiana's sentencing scheme in light of Blakely. Indiana's current sentencing scheme allows a trial court to use aggravating circumstances to enhance a presumptive sentence if it: (1) identifies all significant mitigating and aggravating circumstances; (2) states the specific reason why each circumstance is determined to be mitigating or aggravating; and (3) articulates the court's evaluation and balancing of the circumstances. Crawford v. State, 770 N.E.2d 775,782 (Ind. 2002). The trial court enhanced Baehl's sentence beyond the one and one-half year presumptive sentence based upon two aggravating factors that were not reflected in the jury's verdict and were not admitted by Baehl. The enhancement of Baehl's sentence beyond the presumptive sentence for a class D felony violates the Supreme Court's holding in Blakely, 124 S. Ct. 2537-2538. Consequently, we reverse Baehl's sentence and remand for resentencing consistent with Blakely and Apprendi.

While this is a pretty straightforward application of Blakely, there are a few things of note about the opinion other than the holding and the opinion’s NFP status. First, the Court of Appeals addressed Blakely, even though neither party had raised the issue:

The sole issue is whether the trial court abused its discretion in sentencing Baehl. Baehl argues that the aggravating factors used by the trial court were improper and that he should have been sentenced to no more than the presumptive sentence. Neither Baehl nor the State argue that the enhanced sentence violates the United States Supreme Court’s opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004), reh'g denied. Although we would not normally raise this issue sua sponte, we do so here because of the short duration of Baehl's sentence and the unusual circumstances of this case.

(Footnotes omitted). I have checked the docket, and Baehl's reply brief was filed a couple of weeks after Blakely was decided.

So is Blakely error now going to become Indiana fundamental error? If the error was waived on appeal by failing to raise it, why does the length of Baehl’s sentence matter? What about preservation of the issue below? (A number of federal courts, notably the 11th Circuit, have been quite harsh about preservation of the issue on appeal and below. The 11th has gone so far as to refuse to consider Blakely if first raised in a reply brief, even if the opening brief was filed before Blakely was decided.) What are the unusual circumstances other than a new case was decided while Baehl’s case was on direct appeal?

It is also at least worth noting that Judge May concurred in this opinion after her concurrence in Carson in August. The two opinions are not actually repugnant, but Carson is a lot less Blakely-friendly than Baehl, obviously. Perhaps Judge May attended the Blakely talk last week at the Judicial Conference and concluded that Blakely matters in Indiana, even if the Indiana Supreme Court has not yet spoken. (She may also have noted that the Supreme Court has granted transfer and ordered oral argument in Heath and Smylie, two NFP cases that would have been unremarkable before Blakely.)

Finally, about the NFP status. Appellate Rule 65(A) provides in part:

A Court of Appeals opinion shall be published if the case:
(1) establishes, modifies, or clarifies a rule of law;
(2) criticizes existing law; or
(3) involves a legal or factual issue of unique interest or substantial public importance.

If Baehl doesn’t fit (1) or (3), I’m not sure what would. And I think it fits (1) and (3) on either the opinion’s application of Blakely or its application of Blakely without argument from either party. The rule would seem to make publication of this opinion mandatory.

More on the Judicial Conference presently. The materials used at the talk have dropped into my lap.