Wednesday, November 24, 2004

Trusley v. State: Admissions & Sentencing Juries

The Court of Appeals decided at least one Blakely case today. (I haven't looked at the other decisions yet.) And the argument in Indiana has begun over what constitutes an "admission" for Blakely purposes. The case is Trusley v. State, Court of Appeals No. 41A01-0403-CR-109 (Ind. Ct. App. November 24, 2004). Judge May wrote for herself and Judge Sullivan. Judge Vaidik dissented. The crux of the argument is set out in this snippet from the majority opinion:

The State asserts, without explanation or citation to authority, that Trusley’s admission at the guilty plea hearing that she was the victim’s day care provider and her admission at the sentencing hearing that she provided daycare services amounts to an admission to the facts supporting the finding as an aggravating factor that Trusley was in a position of trust with respect to the victim and his family. We decline to hold that a defendant’s admission she is a day care provider, without more, necessarily substitutes for a jury’s determination she was in a position of trust with respect to the victim to such an extent that sentence enhancement is warranted.

(Footnote omitted). Judge Vaidik's dissent can be boiled down fairly, I think, to this snippet:

Because Trusley admitted that she was the victim’s daycare provider and that she had custody of him at the time of his death, it is hard to imagine what other information would be necessary in order to establish that Trusley was in a position of trust with the victim. Because Trusley admitted to facts underlying the position of trust aggravator, a jury did not have to find that this aggravator existed.

More importantly, perhaps, is a footnote giving the first appellate blessing that I know of to sentencing juries in Indiana, despite the lack of any statutory authority for such a creature:

Trusley asserts she cannot be resentenced by a jury; therefore, on remand the trial court may sentence her to no more than the presumptive term. She notes Ind. Code § 35-38-1-3 provides “Before sentencing a person for a felony, the court must conduct a hearing to consider the facts and circumstances relevant to sentencing,” and further notes the legislature has provided for a jury hearing in certain habitual offender proceedings, see Ind. Code § 35-50-2-8(g) and 35-50-2-10(e). From this she reasons “The language of these statutes is clear--an Indiana trial court can only convene a jury for sentencing purposes in capital cases and habitual phases in non-capital cases.” (Appellant’s Reply Br. at 8.)

Trusley directs us to no statute or case law that explicitly states a trial court may not convene a jury for sentencing proceedings that do not involve habitual offenders. We decline to hold that the legislature’s reference to jury hearings in habitual offender proceedings must necessarily be read to prohibit jury involvement in any other sentencing proceeding. We must interpret a statute in a way that renders it constitutional. Dep’t of Revenue of State of Ind. v. There To Care, Inc., 638 N.E.2d 871, 873 (Ind. Ct. App. 1994), trans. denied. When a statute can be construed to support its constitutionality, that construction must be adopted. Id. Trusley’s interpretation of Ind. Code § 35-38-1-3 as prohibiting jury involvement in the factfinding process for determining the existence of aggravating circumstances would almost certainly render Ind. Code § 35-38-1-3 unconstitutional as violative of the Blakely standard. We therefore decline to adopt that interpretation.

This is very reminiscent of Justice Dickson's suggestion during the Heath and Smylie arguments that courts could construe "shall" to mean "may" to save a statute. In this case, Indiana Code § 35-38-1-3(3) specifically says that it the "court" that is to do the finding of aggravating and mitigating circumstances. So if "shall" can become "may," I guess "court" can become "jury."

Notably, there is nothing facially unconstitutional about § 35-38-1-3. A court may constitutionally find all of the aggravating circumstances it likes. Blakely merely restricts what a court may do with aggravating circumstances it, and not a jury, has found. So the Court of Appeals has reinterpreted a statute that is constitutional on its face in order to save a particular application of the statute.

I really invite comments from anyone who has seen any other court do something like this. This is unique in my experience.

No comments: