Tuesday, November 16, 2004

Lampitok: Another Carson Case

I'm back from two days of CLE on videotape. I'm not sure why they can't just sell us the audiotapes and written materials so that we can listen to the tapes in bed and then send in the certification that we listened to them. I think I view CLE generally as a part of the fraud called "Appearance Ethics" in a book I just finished--not, of course while paying close attention to the videotapes.

But I guess I learned a thing or two over two days. Of course, in Blakely World, without driving an hour and some each way to Indianapolis and spending several hundred dollars for the course, I might have been able to learn 30 things just by snooping around the internet a little bit without breaking much of a sweat. I might also have been able to actually practice some law as well.

Anyway . . .

I do see that the Court of Appeals issued another case today following Carson, i.e., prior conviction=criminal history: Lampitok v. State, Court of Appeals No. 79A05-0212-CR-626 (Ind. Ct. App. November 16, 2004) (Chief Judge Kirsch for Judges Baker and Robb). One cannot tell from the case what Lampitok's criminal history was, just that he had one. The Court of Appeals did not discuss Blakely, except in a footnote:

Although Lampitok did not raise a challenge to his sentence under Blakely v. Washington, --- U.S.---, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (June 24, 2004), we nevertheless note that even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of Blakely, that determination would not seem to affect Lampitok’s enhanced sentence. See Carson v. State, 813 N.E.2d 1187, 1189 (Ind. Ct. App. 2004) (stating that criminal history aggravator relies on convictions that “have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely”).

Chief Judge Kirsch seems to have borrowed the footnote from Judge Baker opinion, following Carson, in Bledsoe: "[E]ven if our supreme court were to find that Indiana's sentencing scheme runs afoul of the Sixth Amendment for the reasons that were articulated in Blakely, such a determination would have no effect on Bledsoe's sentence."

I don't believe one panel of the Court of Appeals is bound by the decisions of other panels. That is, the panels are free to disagree. So far, there really has not been any disagreement that Blakely applies to Indiana's sentencing scheme. I think I count five published opinions saying as much. In reverse chronological order, they are: Traylor, Teeters, Strong, Krebs, and Holden. There also does not seem to have been any disagreement in the cases applying Blakely that the Blakely claims involved had not been procedurally defaulted.

Finally and similarly, there has been no disagreement about Carson and the equivalence between the fact of a prior conviction and the "derivative" criminal history, including juvenile adjudications. If anyone is aware of a case disagreeing with Carson, please let me know by email or in a comment. (I'm still waiting for a first comment and may have to offer a reward.)

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