Strong v. State: No Waiver & No Sentencing Jury (Maybe)

It's a big Blakely day in Indiana, and I am going to get this up without much comment, because I am a little pressed at the moment--which is also why I have had nothing to say about the Blakely case that came down two days ago. (Wickliff v. State, Court of Appeals No. 41A01-0401-CR-27 (Ind. Ct. App. November 3, 2004)).

A unanimous panel of the Court of Appeals (Judges Bailey, Sharpnack, and May) reversed an enhanced sentence for Murder today in Strong v. State, Court of Appeals No. 49A02-0401-CR-25 (Ind. Ct. App. November 5, 2004). This really is the first full-blown Blakely decision in Indiana and it does a number of important things besides simply applying Blakely:

1. It rejects the State's waiver arguments.
   
2. It remands for resentencing without saying anything about a sentencing jury.
3. Although not explicitly, the opinion practically invites a mitigated sentence, because the aggravating circumstances have to be set aside and there is at least one mitigating circumstance.

Regarding waiver, despite the availability of many complex arguments against it, the Court of Appeals dispenses with the State's argument(s) in a footnote quoting Blakely itself: " The Blakely Court recognized that a defendant may waive his Sixth Amendment rights by pleading guilty as long as he or she 'either stipulates to the relevant facts or consents to judicial factfinding.' 124 S. Ct. at 2541. Strong did neither." I am not sure that "stipulation" or "consent" is, in fact, enough, if one reads all of Blakely, but it's a start.

In remanding for resentencing "consistent with the dictates of Blakely," the court does not exclude the possibility of a sentencing jury, but the absence of comment on the subject may be significant.

So at least the Court of Appeals is making a contribution to and even setting the table for the Blakely arguments in Heath and Smylie next week on November 10th.

I said above that it is big Blakely day, because I also have received the State's reply to the Marion County Public Defender Agency's amicus brief in Heath and Smylie. Although the brief has been filed and so is a public document, I am waiting for permission from the source to post it. I will say for now that it is a very interesting document and I hope to put it up and comment on it soon.