A Blakely Case of My Own & Arizona on Advisory Opinions

I have caught my very own Blakely case, and it is going to be fascinating. Until you start thinking about a concrete case with its particular facts and procedural history, you don't really understand the breath-taking variety of both tactical and strategic decisions that Blakely, with all of its current uncertainties, compels you to make. The Arizona Supreme Court understood this in a decision that came down last week, State v. Brown, 2004 WL 2390005 (Ariz. Oct. 27, 2004), in which the court said:

The parties and their amici ... ask us to address myriad other questions that may arise either in the further prosecution of this case or in other cases potentially affected by the Apprendi and Blakely decisions. Given the procedural posture in which this case arrived in this Court, we decline to do so. While many of these additional issues deserve serious consideration, almost none have been directly addressed by the trial judge, and none were raised in or decided by the court of appeals. We are unwilling, even in this important area of the law, to consider these issues as an initial matter in the context of this special action.

We recognize and appreciate the interest that both the State and the defense bar have in understanding the full implications of Apprendi and its progeny for the Arizona sentencing scheme. We believe, however, that the best approach is to resolve any such questions in this dynamic area of the law in the context of a case in which the relevant issue is squarely presented, properly briefed, and addressed by the courts below. We also are mindful that the legislature may choose to moot many such questions, as it did in the wake of Ring, by enacting new sentencing statutes. We therefore leave additional questions not addressed below to another day.

When last I checked, the opinion was not yet available on the web, and I have borrowed the quote above from Doug Berman's Sentencing Law & Policy. (The discussion of this case specifically is here.)

(UPDATE: The opinion is available online in PDF format here.)

It will be interesting to see to what extent the Indiana Supreme Court is going to indulge in the business of advisory opinions in Heath and Smiley. Although the court regularly protests that it will not engage in advisory opinions, in fact, it and the Court of Appeals, both, issue at least partially advisory opinions all the time. Two common varieties immediately come to mind: 1) when the courts say that an issue has been waived or procedurally defaulted, but then go on to say why the appellant loses, even if the issue were procedurally viable; and 2) when the courts discuss issues that are "likely to arise" when the case is remanded or retried.

There will be a bucketful of the latter sort of issue in both Heath and Smylie, which taken together really only raise necessarily the three issues of waiver, the application of Blakely to Indiana sentence enhancements, and the application of Blakely to discretionary consecutive sentencing. I think anything else the court "decides" will be dictum and advisory. There is, perhaps, a fourth issue about appellate review of sentences after Blakely that the court would have to decide, were it to undertake resentencing itself.