Two days after hearing argument in Heath and Smiley, the Indiana Supreme Court has unanimously denied transfer in Wilkie v. State, Court of Appeals No. 14A04-0401-CR-8 (Ind. Ct. App. August 18, 2004). Wilkie was a sentencing case arising from a guilty plea in which the court made no mention of Blakely except to drop the following footnote:
On June 24, 2004, after briefing was completed in this case, the United States Supreme Court issued its opinion in Blakely v. Washington, -- U.S. --, 124 S. Ct. 2531 (2004). We are mindful of that decision, but we leave for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B).
Wilkie received concurrent, maximum eight-year sentences for operating a motor vehicle with a Schedule I controlled sentence in his system and causing two deaths. The trial court found no mitigatinc circumstances and two aggravating circumstances to support the enhanced sentence: "(1) the risk that Wilkie would commit another crime, and 2) he was in need of rehabilitation best provided by incarceration."
One might think that the two aggravating circumstances found were the product of evidence regarding prior convictions. According to the Court of Appeals, Wilkie's criminal history consisted of one prior misdemeanor conviction and seven prior arrests. The Court of Apppeals quotes the trial court's sentencing statement as follows:
In considering aggravating circumstances, I can consider the risk that you would commit another crime, and I can certainly consider arrests as other crimes. I do not necessarily consider – I mean, the fact that there are not convictions, I can still consider the arrests. One thing, Mr. Wilkie, that bothers me about your record, very seriously, is that this charge was filed August 27, 2003, and on January of 2002, in Monroe County, you were charged with Operating a Vehicle While Intoxicated Endangering a Person, and Operating a Vehicle While Intoxicated With a B.A.C. of .08 of More. Now, [your attorney] indicates this has been dismissed, but it could have been dismissed for a variety of reasons. You were still charged with that, and right or wrong, that would scare me to death, so, you know, obviously it didn’t keep you from doing the second [offense] involving, basically, the same type of things, except a little more serious, . . . . You have several charges which have been dismissed. To me, this indicates that you need rehabilitation that will best be served by incarceration, because you were allowed to be on the pre-trial diversion program twice, you were placed on probation once or twice, and none of these things seemed to affect you or keep you from committing another crime. I mean, these are not horrendous crimes, but you finally ended up doing that, so, I would say that you need rehabilitation, which is best provided by incarceration . . . .
To me, these appear to be aggravating circumstances subject to Blakely, because they are not facts of prior convictions. I think it is hard to conclude that the two maximum sentences were supportable by the single misdemeanor conviction, the nature of which we do not learn from the opinion.
If the denial of transfer by the Supreme Court is another tea leaf, what might be divined? If anyone on the court were even thinking of finding Blakely errors to be fundamental error, the court could have granted transfer, waited until its final resolution of Heath and Smylie, and then summarily affirmed the Court of Appeals' opinion upon finally concluding Blakely claims / issues are subject to procedural default. But the denial of transfer was unanimous, so no one seems to be thinking "fundamental error." Indeed, the court could have delayed a decision on the transfer petition altogether until after deciding Heath and Smylie.
Other than its status as a published opinion, one thing that distinguishes Wilkie from Heath and Smylie is Wilkie's single prior misdemeanor conviction and criminal history. That may make Heath and Smylie "cleaner" cases; I'm not sure why that makes them more deserving of transfer.
I think this is at least a sign that the court is not going to be broadly sympathetic to Blakely claims, even if it decides that Blakely does affect Indiana sentencing, which is far from a foregone conclusion.