Tuesday, November 09, 2004

Francis: Blakely & Appellate Reweighing

Today's cases from the Indiana Supreme Court and the Court of Appeals are out and provide much food for thought and comment, not all of it Blakely-related by any means. On the other hand, at least one of the non-Blakely cases is a Blakely case, and I'll take it first: Francis v. State, Supreme Court No.46S03-0407-CR-328 (Ind. November 9, 2004) (Justice Sullivan for all but Justice Dickson, dissenting without opinion.). One could say that the important thing about the case is its reiteration and application of the principle that a guilty plea must be considered a mitigating circumstance of considerable weight:

This Court has recognized before that “a defendant who willingly enters a plea of guilty has extended a substantial benefit to the state and deserves to have a substantial benefit extended to him in return.” Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995) (quoting Williams v. State, 430 N.E.2d 759, 764 (1982), reh’g denied, 459 U.S. 808 (1982)). A guilty plea demonstrates a defendant's acceptance of responsibility for the crime and extends a benefit to the State and to the victim or the victim's family by avoiding a full-blown trial. Id. See also Sensback v. State, 720 N.E.2d 1160, 1164 (Ind. 1999); Trueblood v. State, 715 N.E.2d 1242, 1257 (Ind. 1999). Thus, a defendant who pleads guilty deserves to have mitigating weight extended to the guilty plea in return. See footnote Scheckel, 655 N.E.2d at 511; Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995). We find that the court erred in not considering the guilty plea to be a mitigating circumstance.

(Foonote omitted). Having found the error, the court reduces Francis's sentence from 50 years to 30, the presumptive sentence for a Class A felony.

For the Blakely-obsessed, though, this is now the second case since June 24th involving Blakely aggravators in which Justice Sullivan has written an opinion reducing an enhanced sentence to the presumptive without a word about Blakely. In Merlington v. State, 814 N.E.2d 269 (Ind. August 31, 2004) (by Justice Sullivan for all but Justice Dickson, dissenting without opinion), the court reduced a 45-year sentence to the presumptive 30 years for a Class A felony. When Merlington first came down, I noticed the following snippet in opinion's introduction:

The Legislature has prescribed standard or “presumptive” sentences for each crime, allowing the sentencing court limited discretion to enhance a sentence to reflect aggravating circumstances or to reduce a sentence to reflect mitigating circumstances. In this case, the applicable statute reads, “A person who commits a Class A felony shall be imprisoned for a fixed term of thirty (30) years, with not more than twenty (20) years added for aggravating circumstances or not more than ten (10) years subtracted for mitigating circumstances . . . .” Ind. Code § 35-50-2-4 (2004).

At the time, after Blakely, looking for any available tea leaf, I thought this--the first sentence followed by the verbatim quote of the entire statute--a pretty peculiarly and untypically basic thing to write in a sentencing opinion. This was just my impression, having read a lot of cases over the last 10 or so years; and I have not done any research on the language or the simplicity. Whether I'm right or wrong in my characterization, though, the first sentence seemed pretty pregnant with meaning to me coming in Blakely's almost-immediate aftermath.

In Merlington, after the court got rid of the invalid aggravating circumstances, it was left with three:

To repeat, the valid aggravating circumstances utilized by the trial court were that (1) other drugs were found in the car in which Merlington was riding, and marijuana was found in the jacket he was wearing; (2) Merlington gave a false testimony about his involvement with the methamphetamine, indicating an unwillingness to accept responsibility for his criminal conduct; and (3) by failing to appear for his last day of trial, Merlington showed a lack of respect for the court, the parties involved, and the criminal process in general.

Without quibbling for the moment about whether the third should be a valid aggravating circumstance (a constitutional right to be present at trial includes the right to waive the right, to quibble for a moment), these are all pretty clearly aggravating circumstances subject to Blakely. (To quibble some more, it is not clear to me why disrespect for a court, parties, or the criminal process in general, assuming that's what Merlington's absence from trial demonstrated, should earn one more time absent formal contempt.)

There were two mitigating circumstances: Merlington's youth and lack of criminal history.

I assumed that the court was aware of Blakely, unlike a trial court down here in the south that had not heard of Blakely even as late as early September. I also assumed that no Blakely arguments had been presented to the court. (And if one looks at the docket, no Blakely arguments could have been submitted, because transfer was granted in January, the opinion issued in August, and nothing was filed in between.)

With those assumptions, I came to the conclusion that the Supreme Court either has to think 1) unpreserved Blakely issues are waived / procedurally defaulted; or 2) as long as a presumptive sentence (or less) is imposed, Blakely doesn't matter. Or maybe both.

So now we have Francis on the eve of the arguments in Heath and Smylie. Apparently the Merlington paragraph that caught my attention was turned to boilerplate, because the identical paragraph appears in Francis.

In Francis, the valid aggravating circumstances--at the end of the day, as Chief Justice Shepard would say--are a prior criminal history and the victim was less than 12-years old. The "criminal history" amounted to the following: "a public intoxication violation and a criminal conversion conviction. However, his juvenile record includes a delinquency adjudication for an offense that would have constituted child molesting if committed by an adult." The victim was 6-years old, so substantially less than the 12-year-old boundary that made the offense a Class A felony.

The valid mitigating circumstances identifiable from the opinion are Francis's pleas of guilty and the fact he was molested as a child.

Putting the public intoxication and conversion convictions aside as "facts of a prior conviction," I think great quibble can be had that a juvenile adjudication fits the Amendarez-Torres exception. The jury's verdict also only necessarily found that the victim was less than 12-years old. So that the victim was six has to be a Blakely aggravating circumstance.

So Merlington and Francis are practically twins right down to the votes: Justice Dickson dissenting in both without opinion. The only real difference, and it is not a small one, is that in Merlington there are no valid non-Blakely aggravating circumstances.

I do not think that these cases represent an implicit statement by the court regarding waiver / procedural default of Blakely issues. No party in either case raised or even sought to raise Blakely. I suppose the cases could represent an implicit statement regarding Blakely issues and Indiana fundamental error. I do not think that, though, because of what I think the cases do represent that I will get to in a minute.

I also do not think that Justice Dickson dissented without comment just to keep his Blakely powder dry for tomorrow. I think Justice Dickson was dissenting from the sentence reductions as he tends to dissent in attorney discipline cases, because he often thinks the sanctions imposed too lenient. (Again, this is just an impression I have.)

I do think that these opinions represent an important position that the court is likely to take. That position is that as long as the resulting sentence is the presumptive for a given offense, Blakely is not involved and that is the end of the matter. That is the only justification I can think of--perhaps there are others--for the court, especially in Merlington, to itself weigh aggravating circumstances that almost certainly were subject to Blakely. That is, the court's position appears to be that Blakely aggravating circumstance may be found by a judge (or by appellate judges at least) by some unspecified standard, so long as those aggravating circumstances do not, in fact, increase the punishment to more than the presumptive sentence.

I don't know of any court that has taken this position, and that may just be my ignorance. In any event, the position seems doubtful ( to me for at least one reason. Under current Indiana sentencing law, if there are no permissible aggravating circumstances and sufficiently weighty mitigating circumsances, a defendant appears to be entitled to a mitigated sentence. See Laughner v. State, 769 N.E.2d 1147, 1162 (Ind. Ct. App. 2002) ("The mitigating circumstances found by the trial court are both undisputed and supported by the record, and no permissible aggravators were found that may serve to offset those mitigators. Accordingly, we remand to the trial court for resentencing of Laughner to less than the presumptive sentence."); see also generally Biehl v. State, 738 N.E.2d 337 (Ind. Ct. App. 2000) (where there were no aggravating circumsances and significant mitigating circumsances in the form of mental illness and no criminal history, a presumptive sentence was manifestly unreasonable), trans. denied.

In light of Blakely, I do not see how Laughner and Biehl can coexist with Merlington and Francis. Since the former are Court of Appeals opinions and the latter Supreme Court, perhaps the law has changed.

As a final twist, the court in Francis issued a fascinating order that is not part of the opinion but can be found on the online docket:


There is a materially identical order for Merlington. There was no such order in Sherwood v. State, 749 N.E.2d 36 (Ind. 2001), a case cited in both Merlington and Francis, and a case in which the court did appellate reweighing. (Justice Dickson also dissented in Sherwood to the sentence reduction with a brief opinion). Is the court now worried about Blakely's effect if the trial court were to become actively involved on remand? Does the court think that trial court sentencing is subject to Blakely in ways that appellate resentencing is not?

Don't get me wrong. I doubt that either Merlington, with 15 years taken off his sentence, or Francis, with 20 years taken of his, will be coming back for more on the subject of sentencing on rehearing or by way of post-conviction relief.

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