A lot has happened in the week since I left. Three cases from the Indiana Court of Appeals dealing with Blakely--and one of them rated a mention by Doug Berman at Sentencing Law & Policy. I'll comment on those cases over the weekend as I try to catch up. There's a lot to say.
Today, Marcia Oddi at The Indiana Law Blog put up the weekly transfer list (here), and it turns out that the Indiana Supreme Court has denied transfer in Bledsoe, Judge Baker's rehearing opinion from September 28th that follows Carson's quite expansive reading of the Almendarez-Torres / Apprendi prior conviction exception that was recapitulated in Blakely.I have no idea what the denial of transfer in Bledsoe might mean. The Bledsoe panel concluded that any Blakely issues had been waived, because they had not been raised in the direct appeal.
As I think I commented at the time or elsewhere, a rehearing petition is part of a direct appeal. This is especially true in Indiana, since if the Supreme Court later grants transfer, it takes the case as if it had been originally filed there--that is, as if the Court of Appeals had never seen the case. So I find it hard to imagine that the denial of transfer in Bledsoe reflects any sort of approval of the opinion's approach to waiver.
I guess I have to conclude that it looks as though the interchangeability of "fact of prior conviction" and "criminal history" is likely to prevail in Indiana for a while. We are not going to get a different answer on this from either Heath or Smylie, since neither case involves prior convictions.
Bledsoe is, of course, a peculiar application of the prior conviction exception. The Court of Appeals recites the following: "[T]he trial court relied upon Bledsoe’s prior criminal history, noted that his rehabilitation could only occur in a penal institution, that he was on probation at the time of the offense, and that the trial court believed that Bledsoe would continue to engage in criminal activities." For whatever reason, the Court of Appeals mentions everything but a prior conviction. If all of that the court mentions is merely "derivative" of Bledsoe's criminal history, it might have been nice to know in these uncertain times what the criminal history was.
Ahh. Back at it. With Windows 98 and a dial-up, ten stories up a couple of stones' throws from the Vistula.