In neither case is there even a whiff of waiver.
There are several other aspects of both cases that I will try to comment on later tonight after a certain four-year-old dictator has dictated his last for the day and after Pedro and the Red Sox have evened the score.
Cowens v. State
I just have news that the Court of Appeals decided another Blakely case on October 6th in another unpublished opinion: Joshua Cowens v. State, Court of Appeals No. 01A02- 0312- CR- 1048 (Ind. Ct. App. October 6, 2004) (on rehearing) (mem.). I do not have the case, but I do have a quote:
Joshua Cowens has filed a petition for rehearing alleging that the imposition of consecutive sentences in this case was in violation of the holding in Blakely v. Washington, 124 S.Ct. 2531 (2004). Concluding that Blakely is not implicated in the situation where a trial court orders consecutive sentences based upon its discretion as granted by Indiana Code § 35-50-1-2(c), we decline to extend the holding of Blakely to consecutive sentences.
(Emphasis added). Judge Sullivan wrote the opinion, with Judges May and Vaidik concurring. I'm doing what I can to get a hold of the opinion.
Since I wrote the above, I have received the opinion from a great Blog Helper, and the above quote is the opinion--minus the line "Judgment affirmed." The original opinion came out three days before Blakely, on June 21st.
Indiana Code § 35-50-1-2(c) provides in its entirety:
Except as provided in subsection (d) or (e), the court shall determine whether terms of imprisonment shall be served concurrently or consecutively. The court may consider the aggravating and mitigating circumstances in IC 35-38-1-7.1(b) and IC 35-38-1-7.1(c) in making a determination under this subsection. The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.
Holden v. State
The same three judges who decided Cowens last week issued a published opinion today, also written by Judge Sullivan, saying that Blakely at least "superficially" applies to sentence above the presumptive. Holden v. State, Court of Appeals No. 15A05-0310-CR-532 (Ind. Ct. App. October 13, 2004).
Holden alleges that none of the aggravating factors found by the trial court were found by the jury or admitted by him. However, we note that the trial court concluded that Holden’s significant and consistent adult and juvenile criminal history was an aggravating factor. According to Blakely, this factor need not be determined a second time by a jury. Id. at 2536. From Holden’s criminal history, the trial court also determined that the type of offenses were increasingly becoming more severe. This conclusion also does not trigger a Blakely analysis. Finally, the trial court took notice of the fact that Holden had just committed another bank robbery in Switzerland County and that he pleaded guilty to that charge. Once again, this aggravator is outside of the scope of Blakely review.
The other aggravating factors relied upon by the trial court include a recitation of facts relating to the particular robberies for which Holden was tried and what they demonstrated about Holden’s character, and the trial court’s determination that Holden was in need of rehabilitative treatment best provided by commitment to a penal facility. See footnote. Because Blakely is superficially applicable to a sentence greater than the presumptive, it would appear that the finding made with relation to the facts of the crime could be violative of the Blakely holding because it does not appear that the jury made findings with regard to the specific facts found and there is no allegation that Holden admitted to those facts. However, because the trial court relied upon three different aggravators, we conclude that there is no reasonable possibility that the complained of aggravators contributed to the sentence. Cf. Chapman v. California, 386 U.S. 18, 23 (1967) (federal constitutional errors are harmless when there is no reasonable possibility that that the evidence complained of might have contributed to the verdict).
In his claim that the trial court had considered an improper aggravator, Holden challenges the trial court’s consideration of the fact that Holden had supplied drugs to his cohorts in crime as enticement to rob the banks. Given that we have concluded that the fact is one of those facts related to the crime upon which we do not need to rely to uphold the sentence, we do not address Holden’s claim of error with regard to that aggravator.
The other aggravating factors relied upon by the trial court include a recitation of facts relating to the particular robberies for which Holden was tried and what they demonstrated about Holden’s character, and the trial court’s determination that Holden was in need of rehabilitative treatment best provided by commitment to a penal facility. See footnote. Because Blakely is superficially applicable to a sentence greater than the presumptive, it would appear that the finding made with relation to the facts of the crime could be violative of the Blakely holding because it does not appear that the jury made findings with regard to the specific facts found and there is no allegation that Holden admitted to those facts. However, because the trial court relied upon three different aggravators, we conclude that there is no reasonable possibility that the complained of aggravators contributed to the sentence. Cf. Chapman v. California, 386 U.S. 18, 23 (1967) (federal constitutional errors are harmless when there is no reasonable possibility that that the evidence complained of might have contributed to the verdict).
In his claim that the trial court had considered an improper aggravator, Holden challenges the trial court’s consideration of the fact that Holden had supplied drugs to his cohorts in crime as enticement to rob the banks. Given that we have concluded that the fact is one of those facts related to the crime upon which we do not need to rely to uphold the sentence, we do not address Holden’s claim of error with regard to that aggravator.
(Emphases added). The panel makes the following comments in two footnotes:
It is our conclusion from this discussion in Blakely that the “statutory maximum” sentence of that case equates with the presumptive sentence called for by the applicable Indiana statute.
and
The trial court’s use of the aggravator that Holden was in need of rehabilitative treatment which could be provided by commitment to a penal facility is improper because it was merely a “perfunctory recitation” of an aggravating factor. See Ingle v. State, 766 N.E.2d 392, 395 (Ind. Ct. App. 2002), trans. denied. While the trial court did state that this was based upon Holden’s criminal history, it did not explain why the circumstance was aggravating, i.e. that prior attempts at rehabilitation had proved unsuccessful.
This case was fully briefed at the beginning of June and was transmitted to the court for a decision. On July 22nd, Holden filed a motion to for leave to file an amended brief; the court granted the motion quite swiftly on August 2nd.
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