Judge Najam, who wrote two of last week’s Blakely opinions from the Court of Appeals (Ryle and Berry), is back in the Blakely news with yet another opinion: Patrick v. State, Court of Appeals No. 71A03-0407-CR-312 (Ind. Ct. App. December 23, 2004). Judge Vaidik wrote an opinion concurring in part; and Chief Judge Kirsch concurred in part and dissented in part.
The majority reverses for Blakely error a 93-year sentence arising out of multiple convictions including Murder, Battery, and Criminal Confinement. I believe this is the first opinion from the Court of Appeals to apply Blakely in the context of a guilty plea.The court summarizes the aggravating and mitigating circumstances found by the trial court as follows:
The State’s argument violates the critical holding in Apprendi that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490 (emphasis added). Moreover, the Court in Blakely applied the rule expressed in Apprendi to Washington’s sentencing scheme, and nothing in Blakely supports the State’s position that once one valid aggravator is either admitted by the defendant or found by the jury, the trial court has discretion to find additional aggravating factors on its own and use those additional factors to enhance a sentence. We conclude that because the trial court relied on two aggravating factors that were neither admitted by Patrick nor determined by a jury, his enhanced sentence implicates Blakely and violates the Sixth Amendment.
The State is not the only proponent of the argument rejected in this passage. Mike Limrick suggests that such is the law in his article about to appear in Res Gestae. Doug Berman at Sentencing Law & Policy has posted Mike’s article for downloading here. The echo of the State’s argument begins on page 5 with the discussion of Traylor. It’s about the only thing in the article I don’t agree with Mike about; and the article is a very fine summary of what the Indiana courts have done so far with Blakely.There is a second jewel to Patrick. Judge Najam, now famous for his Blakely footnotes (see this post), drops a very important one in this case:
(Emphasis added). This footnote seems to foreclose, on remand, a jury trial of the Blakely-affected aggravating circumstances. If so, there is now a split in the Court of Appeals on jury trials after remand. Recall that in Trusley, discussed in this post, the court said, also in a footnote, that there was no problem with a jury trial after a remand, despite the lack of statutory authority.
I cannot help but wonder if it really would not be better to take the approach of the Oregon Supreme Court in Dilts, leaving this particular issue to be litigated by the parties on remand. (I have not had the opportunity to post in detail about Dilts, but it is a very interesting and possibly important case arising out of a remand for reconsideration in light of Blakely by the United States Supreme Court about a week after Blakely was decided. It is worth reading if, for nothing else, it’s discussion of statutes that are only unconstitutional in some of their applications: State v. Dilts, Supreme Court No. S49525 (OR December 16, 2004).
There is a discussion in the case about harmless error analysis. I think it muddles Chapman harmless error analysis with the "harmless error" analysis of Appellate Rule 66(B). But that’s pretty common in the cases of the Court of Appeals.
Judge Vaidik concurs only in part, because she thinks whether a person is on probation is not derivative of criminal history and so is subject to Blakely. I believe hers is the first voice with that (almost certainly correct) opinion.
Chief Judge Kirsch dissents, because he thinks that Patrick did not preserve the Blakely issues for appeal when he was sentenced in March of this year. I believe that so far, only Judge Baker has agreed with Chief Judge Kirsch on the waiver issue.
It would have been helpful, I think, had Chief Judge Kirsch elaborated at least a little about why, in this first guilty-plea case, there is no Boykin or similar problem with the plea. I guess the elaboration would run something like Patrick was challenging his sentence, not his plea. So perhaps what needs elaboration is related to what Justice Sullivan pointed out during the Heath and Smylie arguments: Indiana appellate courts take up sentencing issues for the first time on appeal all the time. So why was a Blakely or Apprendi objection required in the trial court to preserve the issue for appeal?
There is really no argument in the majority opinion about waiver or foreiture of the Blakely issues. There is just a footnote saying the court rejects the State’s waiver arguments for the same reasons as Strong. (The footnote actually refers to "Ryle," so I guess the boilerplate didn’t get properly tidied. This happens to me all the time with pleadings and drives me bonkers.)
The Patrick court also follows Cowens with respect to consecutive sentences: Blakely does not affect discretionary consecutive sentences.
So will the Supreme Court give us Heath and Smylie on Christmas Eve? I think not. And I believe the court is pretty much shut down between Christmas and New Year’s.
Win98 and dial-up difficulties notwithstanding, I hope to put together some kind of summary about Blakely in Indiana at year’s end. And I highly recommend Mike Limrick’s article that’s to appear in Res Gestae which, again, is available thanks to Mike and Doug Berman here.
Christmas Eve is the big day here in Poland so . . .Merry Christmas to all
And to all a Good-Night.