The four published Indiana cases reversing sentences on Blakely grounds (Trusley, Traylor, Strong, and Krebs) all involved appeals after trials. They also all involved appeals in which no Blakely objection could have been raised. (Apprendi objections, recall, had been foreclosed in Indiana by Parker, decided in August 2001, in which the Court of Appeals said in footnote 6 that the Apprendi "statutory maximum" was 50 years for a Class A felony and not the presumptive sentence.) There have not been any published cases dealing with Blakely in the context of a guilty plea; and I do not know of any unpublished cases on the subject, although they may exist.
I picked up a client recently who was heading for a sentencing hearing yesterday, having pled guilty and having had the court accept his plea in the spring. After some delays over the summer, the hearing had been set for September. In September, my client's other lawyer, now my co-counsel, raised Blakely, and the court put off the hearing again after consulting with the Judicial Center. In October, my client moved to withdraw his plea, which the court denied--on the same day Krebs was decided, actually.
So I got involved and filed a renewed motion to withdraw the plea and a motion for changes of judge and venue. As alternative relief in the renewed motion to withdraw the plea, I asked that the court certify any denial of the motion for interlocutory appeal or that the court simply wait until HeathSmylie have been decided.
Had I been the judge, I think I would have simply waited for Heath and Smylie to come down. Instead, the motion for a change of judge was granted, and yesterday's sentencing hearing was vacated.
The theory supporting the request for the change of judge and venue was that after Blakely, courts have no business doing presentence investigations involving aggravating circumstances that are facts of prior convictions--or now, generally and mistakenly, in my opinion, criminal history. By statute, the probation officers all serve at the pleasure of the courts they serve. In my case, the probation officer alleged four aggravating circumstances having nothing to do with prior convictions, since there are none, and recommended either that the plea agreement be rejected or that a sentence above the presumptive be imposed. The basis for one aggravating circumstance arose from an interview of my client by the probation officer.
After Blakely, the State has to "charge" and prove aggravating circumstances, so the court, through its probation department, had acted as a second prosecutor. That's not quite cricket, so this judge had to get off the case, I suggested; and since the same probation department works for all of the courts in the county with criminal jurisdiction, I also suggested that my client was entitled to a change of venue to a court uninvolved in the criminal investigation of his case. I finally suggested that the existing presentence investigation report be stricken from the record.
So far as I know, only the change of judge has been granted. Because everyone has been so generous with their pleadings as we all muddle along in Blakely World, the motion to withdraw the plea is here in WordPerfect and here in PDF. The motion for changes of judge and venue are here in WordPerfect and here in PDF. The critical paragraph from the motion for a change of judge was, I think, the following:
Because this Court has itself, through its Probation Department, investigated and “charged” the aggravating circumstances, now essential elements of the offense, included in the PSI, this Court has acted a second prosecutor, and __________ is entitled to a change of judge. Ind. Crim. Rule 12(B); see also In re Morton, 770 N.E.2d 827, 831 (Ind. 2002) (under Judicial Canon 3(E)(1), judge’s impartiality could reasonably be questioned where he initiated a criminal investigation). Perhaps more importantly, it would be a violation of federal due process for this Court to continue presiding over this case, having “occupie[d] two practically and seriously inconsistent positions, one partisan and the other judicial . . . .” Ward v. Monroeville, 409 U.S. 57, 60 (1972). See also Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971) (Due Process Clause requires “a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor.” (Citation omitted)); In re Murchison, 349 U.S. 133, 136 (1955) (The requirements of due process “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.”)
Perhaps my search capabilities are not what they ought to be, but I could not really find any cases dealing explicitly with the theme of "judge as second prosecutor."
Finally, perhaps usefully, here's the current (whopper) citation for the cases holding that the Indiana "presumptive" sentence is the Apprendi / Blakely "statutory maximum":
In the context of Indiana’s sentencing scheme, the “statutory maximum” is the presumptive, “fixed” sentence for a given class of felony—four years in the case of a Class C felony under Indiana Code Annotated § 35-50-2-6(a) (Burns Supp. 2004). Krebs v. State, 816 N.E.2d 469, _____, 2004 Ind.App. LEXIS 2055, *15-16 (Ind. Ct. App. October 20, 2004) (“ [I]t appears our trial courts no longer have discretion to sentence a criminal defendant to more than the presumptive sentence unless the defendant waives his right to a jury at sentencing, a jury first determines the existence of aggravating factors, or the defendant has a criminal history.”); accord Trusley v. State, 2004 Ind.App. LEXIS 2321, *5 n.6 (Ind. Ct. App. November 24, 2004) ([T]he Indiana presumptive sentence amounts to Blakely’s statutory maximum. See Holden v. State, 815 N.E.2d 1049, 1059 n.6 (Ind. Ct. App. 2004).”); Traylor v. State, 2004 Ind. App. LEXIS 2229, *26 (Ind. Ct. App. November 10, 2004) (“Under Indiana law, after a jury returns a guilty verdict, the trial court can only impose the presumptive sentence, as outlined in the statute, without finding any additional facts. Therefore, the presumptive sentence for an offense is the prescribed statutory maximum for Apprendi/Blakely purposes.”); Strong v. State, 2004 Ind. App. LEXIS 2191, *17 (Ind. Ct. App. November 5, 2004) (“[I]nasmuch as Indiana's present sentencing procedure allows a trial court, without the aid of a jury, to enhance a sentence where certain factors are present, it violates a defendant's Sixth Amendment right to have a jury determine all facts legally essential to his or her sentence, pursuant to Blakely. (Footnote omitted).); see also Holden v. State, 815 N.E.2d 1049, 1059 n.6 (Ind. Ct. App. October 13, 2004) (“It is our conclusion from this discussion in Blakely that the "statutory maximum" sentence of that case equates with the presumptive sentence called for by the applicable Indiana statute.”). purposes.”);
Obviously, some of the Lexis cites will change in relatively short order to Northeast cites. Also obviously, the Indiana Supreme Court may make all of this wrangling irrelevant in possibly even shorter order. (With Booker and Fanfan nowhere in sight, my guess is that the ISC is not going to wait much longer with Heath and Smylie, especially if the court is going to hold that Blakely does not affect Indiana sentencing.)