Thursday, October 21, 2004

Krebs v. State: Blakely Sua Sponte Again

As Marcia Oddi reports here on the Indiana Law Blog, there's a new Blakely case out from the Court of Appeals: Krebs v. State, Court of Appeals No.49A04-0310-CR-549 (Ind. Ct. App. October 20, 2004), by Judges May, Sharpnack, and Bailey.. Here's the (rather long) passage about Blakely:

Krebs argues the trial judge’s imposition of a one hundred year sentence is inappropriate and disproportionate. However, we do not address that argument. Instead we evaluate sua sponte the constitutionality of Krebs’ sentence under the United States Supreme Court’s recent decision in Blakely v. Washington, ___U.S. ____, 124 S. Ct. 2531 (2004).

Prior to Blakely, we reviewed our trial courts’ sentencing decisions for an abuse of discretion. See, e.g., Bocko v. State, 769 N.E.2d 658, 667 (Ind. Ct. App. 2002), reh’g denied, trans. denied 783 N.E.2d 702 (Ind. 2002). If a trial court used aggravating or mitigating circumstances to modify the presumptive sentence, all we required the trial court to do was: (1) identify all significant mitigating and aggravating circumstances; (2) state the specific reason why each circumstance is determined to be mitigating or aggravating; and (3) articulate the court’s evaluation and balancing of the circumstances. See id.

However, in Blakely, the Supreme Court held the Sixth Amendment requires a jury to determine beyond a reasonable doubt the existence of aggravating factors used to increase the sentence for a crime above the presumptive sentence assigned by the legislature. 124 S. Ct. at 2536. The Court held “the fact of a prior conviction” is an exception to this rule. Id. Accordingly, it appears our trial courts no longer have discretion to sentence a criminal defendant to more than the presumptive sentence unless the defendant waives his right to a jury at sentencing, a jury first determines the existence of aggravating factors, or the defendant has a criminal history.

The trial court enhanced Krebs’ sentences based on the following aggravating circumstances:

I’m finding aggravating circumstances throughout this because the crime was particular [sic] heinous crime involving a 10 and a 12 year old daughter who - and he had obviously confronted the victims to commit the crime. That’s aggravating. He was obviously in a position of trust being a father and from the pattern of this occurrence, it would appear that he would probably commit these crimes again, it appears to the Court.

(Tr. at 217-18.)

The trial court then sentenced Krebs to a total of one hundred years in the Indiana Department of Correction, stating:

…I’m adding 5 years to the 30 years on that. 30 years will be executed in DOC. 5 years will be suspended. On Count II, also a Class A felony, there will be a 30 year sentence to be consecutive with Count I - it will be a 35 year sentence. 30 years executed. 5 years suspended. Count II to be consecutive with Count I. Count III, is a Class A felony. There will be a 30 year sentence. I’m finding aggravating circumstances for the same reasons I already stated and Count III will be consecutive with Counts I and II. Count IV is a Class B felony a 10 year stated term. I’m finding aggravating circumstances that I repeated and adding 2 years to that. 10 years will be executed consecutive with Counts I, II and III. Count V merged. Count VI is a Class A misdemeanor. There will be a one year sentence to be concurrent with Counts I, II, III, and IV. And executed sentence sentence thereby of 100 years and the aggravating circumstances that I stated - that I considered and repeat for deciding this sentence consecutively.

(Appellant’s App. at 218.) See footnote.

The trial court enhanced Krebs’ sentences based on factual findings without a jury making those findings beyond a reasonable doubt. That procedure violates Krebs’ Sixth Amendment right to trial by jury. See Blakely, 124 S. Ct. at 2536.

(Emphases added). The last footnote referred to in the passage reads:

The State argues Krebs’ sentences do not exceed the presumptive because the portion in excess of the presumptive on each count was suspended. We disagree.

In a concurrence in Beck v. State, 790 N.E.2d 520 (Ind. Ct. App. 2003), this judge noted a suspended sentence is one actually imposed but the execution of which is thereafter suspended. Id. at 523 (May, J., concurring). Such a sentence is “a definite sentence postponed so that the defendant is not required to serve his time in prison unless he commits another crime or violates some court-imposed condition[.]” Id. (citing United States v. Gajdik, 292 F.3d 555, 558 (7th Cir. 2002)). See also Pagan v. State, 809 N.E.2d 915, 928 n.9 (Ind. Ct. App. 2004) (“This court has clarified that we will consider suspended portions of a sentence as well as executed portions when considering the appropriateness of a sentence.”); Cox v. State, 792 N.E.2d 898, 904 n.6 (Ind. Ct. App. 2003) (“A year is still a year, and a sentence is still a sentence.”), trans. denied.

The court remanded the case for "sentencing proceedings consistent with Blakely."

Here is what I find most interesting about this opinion:
  1. The court raises Blakely sua sponte.
  2. The court applies Blakely to suspended sentence enhancements.
  3. The court continues the approach of equating "criminal history" with "the fact of a prior conviction."
  4. The remand gives no hint what "sentencing proceedings consistent with Blakely" might look like.
With respect to the first point, according to the docket, the State filed its appellee's brief on June 7th. No reply brief was filed. It would have been due June 25th, the day after Blakely came out. This was not, apparently, one of the many cases in which supplemental briefing was requested.

So we have the Court of Appeals deciding Blakely cases without briefing from either side and the Supreme Court gearing up to do almost the same. I am not suggesting the Court of Appeals should not have raised Blakely sua sponte. Blakely errors actually fit rather nicely into the standard definition of Indiana "fundamental error":

The 'fundamental error' doctrine permits an appellate tribunal to address an error not otherwise preserved for review if the error appears plainly on the face of the record and is of such consequence that it denied defendant due process. Rowley v. State, 442 N.E.2d 343 (Ind. 1982). "To rise to the level of fundamental error, the error must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process." Maul v. State, 731 N.E.2d 438, 440 (Ind. 2000)(citations and internal quotations omitted).

Deane v. State, 759 N.E.2d 201, 204 (Ind. 2001).

That aggravating circumstances were not proved to a jury beyond a reasonable doubt will appear on the face of the record. That they were not proved to a jury and that they were not proved beyond a reasonable doubt are both, quite literally, deprivations of due process, since the Due Process Clause of the Fourteenth Amendment both incorporates the Sixth Amendment jury-trial right and requires proof beyond a reasonable doubt.

So why won't the Court of Appeals use the magic words? (Recall that in Baehl v. State, the first Indiana Blakely reversal (NFP), discussed here, the Court of Appeals also raised Blakely sua sponte because of Baehl's short sentence and the "unusual circumstances" of the case.)

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