Cowens: Conflict with Controlling Precedent?

Judge Sullivan, together with Judges May and Vaidik, refused in Cowens (quoted here yesterday) on rehearing to "extend" Blakely to the imposition of discretionary consecutive sentences under Indiana Code 35-50-1-2(c). The question I have is how to reconcile that refusal with the following, which appears to be controlling precedent of the Indiana Supreme Court:

In order to impose consecutive sentences, the trial court must find at least one aggravating circumstance. See Morgan v. State, 675 N.E.2d 1067, 1073 (Ind. 1996). The same aggravating circumstance may be used to both enhance a sentence and justify consecutive terms. See, e.g., Taylor v. State, 710 N.E.2d 921, 925 (Ind. 1999); Brown v. State , 698 N.E.2d 779, 781 (Ind. 1998). Here, however, because the trial court found the aggravating and mitigating circumstances to be in balance, there is no basis on which to impose consecutive terms. Accordingly, this case is remanded to the trial court with direction to impose concurrent sentences on all counts.

Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2000) (emphasis added); followed by Wentz v. State, 766 N.E.2d 351, 359 (Ind. 2002). (Both opinions were written by Justice Boehm.)

Obviously the question is not academic for Cowens personally. Nor is it academic for the argument in Smylie coming up on November 10th.