As the argument closed, I received word by email that Stacy Uliana won her Blakely case, Traylor v. State, Court of Appeals No. 63A04-0309-CR-466 (Ind. Ct. App. November 10, 2004). It should be up on the Court of Appeals site this afternoon.
A few preliminaries about the argument:
Chief Justice Shepard was the most interested in waiver, although Justice Sullivan noted that he thinks federal plain error and Indiana fundamental error are very similar. I think Justice Boehm said he was not sure why defendants should be penalized for not anticipating Blakely No one mentioned Parker, the 2001 case from the Court of Appeals.
[Correction: it was Justice Sullivan who said that he was not sure why defendants should be penalized for not anticipating Blakely, not Justice Boehm.]
Chief Justice Shepard, Justice Dickson, and Justice Sullivan, I believe, were all interested in whether the court should issue an opinion even if the court finds the Blakely issues procedurally defaulted. The State said yes. Justice Sullivan chimed in, "Even if that means issuing an advisory opinion," to which Ellen Meilaender for the State answered, "Yes," with a smile. Joe Cleary for Smylie in rebuttal made a strong against argument against default based on post-Furman cases and Bostick that the court should not find the issues defaulted. He left it up to the court whether to issue an opinion in the event of default.
Lorraine Rodts for Heath focused on two things: 1) the language of the sentencing statutes show that Blakely applies and the court can't change that through judicial interpretation (Justice Dickson's suggestion); and 2) aggravating circumstances are elements. Justice Sullivan certainly understood her argument that non-statutory aggravating circumsances can never be used because of the notice / common law crime problem, because he restated it.
Joe Cleary for Smylie answered a number of questions before getting to Blakely and consecutive sentencing. And all in all, on both sides, very little time was spent on the subject.
The State spent lots of its time arguing that Blakely doesn't apply at all. Steve Johnson spent some of his 10 minutes on the subject, but most of his time on a hypothetical that Justice Sullivan took and turned around on him a little bit. He also spent some time on offense facts and offender characteristics, a distinction from Doug Berman's forthcoming article and from other sources, Johnson said. Justice Dickson, I believe, went over some statutory provisions, questioning Johnson how they should be classified. At least one provision I remember is the likelihood that a person will commit another crime. I think Johnson said that should be an offender characteristic.
The State raised at least one argument that I either did not understand from its brief or was new: If Blakely applies, the State need only prove a single aggravating circumstance to a jury beyond a reasonable doubt and a judge may go on to find others, because a single circumstance can support a maximum sentence. If a single aggravating circumstance can support a maximum sentence, other circumstances found by a judge are not, within the meaning of Blakely "necessary" to the punishment of an enhanced sentence.
Have to go do that preschool transportation thing. More later.