Monday, December 27, 2004

Indiana's Blakely List for 2004 as of 12/27/04

As part of a year-end round-up of Blakely in its Hoosier incarnation, I have put together a document in Word format with a list of all the cases I know of that mention Blakely and their current transfer or rehearing status. There are hyperlinks to the cases attached to the case names. The link to the list is here.

There are 20 published Indiana appellate opinions and one memorandum decision (that I know of) that mention Blakely. Of the 21 cases, only 14, I think are really Blakely decisions. For example, Wilkie, the first Indiana case to mention Blakely is a non-Blakely decision, as is Ruiz, the only Indiana Supreme Court case to mention Blakely. So the cases are quite modest in number.

Of the 14 actual Blakely decisions, only 4 are final in the sense that they have been certified: Carson, Bledsoe, Krebs, and Teeters. Transfer has been denied in Bledsoe and Teeters. Transfer was not sought by either party in Carson or, suprisingly, Krebs. (Krebs is surprising, because the State has pursued transfer or rehearing in every other case reversing a sentence for Blakely error.)

All of the other cases are in various stages of rehearing or transfer. Holden is the subject of cross-petitions to transfer; Lampitok and Traylor are subjects of concurrent rehearing and transfer petitions. The litigation continues apace.

The only thing I think can be gleaned from the rehearing and transfer status of the cases is that the Supreme Court, by denying transfer in Bledsoe, has blessed Carson’s and Bledsoe’s broad reading of the prior conviction exception. Neither Heath nor Smylie involve prior convictions, so Bledsoe would appear to have been the first case (that we know about) coming to the Supreme Court with the prior conviction exception on the table. I can think of no (good) reason to pass up transfer (unanimously) in Bledsoe, unless the court has nothing more to add or subtract from the Carson / Bledsoe kitchen-sink approach to the prior conviction exception.

It is also at least interesting and, in a way, possibly ominous, that the Supreme Court has not denied transfer in any case reversing a sentence for Blakely error.

Will there be any more cases this year? There are not many ticks left to this year's clock.

1 comment:

Doug said...

I believe the Indiana General Assembly is attempting to address Blakely with Introduced Senate Bill 96.

"Bifurcated sentencing. Allows a court to impose a sentence greater than the presumptive sentence only if: (1) the state proves the existence of an aggravating circumstance beyond a reasonable doubt; or (2) the defendant has one or more prior unrelated convictions."

(See for more on the Indiana General Assembly).