Thursday, December 23, 2004

Patrick v. State: The sky is not the limit.

Note: If a link is indicated and missing, I have not managed to put it in yet.

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:

As we have discussed, the trial court identified five aggravating factors: (1) Patrick’s criminal history; (2) his probationary status at the time he committed the instant offense; (3) the victim’s age (relevant to murder only); (4) the likelihood that he will re-offend; and (5) the nature and circumstances of the crimes. Of those aggravators, the court explained that Patrick’s criminal history was "insignificant." Appellant’s App. at 817. Indeed, Patrick has only one misdemeanor conviction. The court also stated that the two "overriding" aggravating factors were the likelihood that Patrick will commit more crimes and the nature and circumstances of his offenses. Id. at 819. Those two aggravators are improper, and the sentencing statement shows that this is not a case in which the invalid aggravating circumstances played a relatively unimportant role in the trial court’s decision.
In addition to being the first plea opinion, the majority addresses one entirely new aspect of Blakely in Indiana. It dispenses with the State’s argument, made in the Heath and Smylie oral arguments as well, I believe, that a single valid aggravating circumstance opens up the entire range of sentence above the presumptive:

The State contends that once a defendant admits, or the jury finds, a single aggravating factor consistent with Blakely, the "statutory maximum" becomes the maximum sentence authorized for that class of offense and affords the trial court discretion to make additional factual findings that do not comply with Blakely. We cannot agree.

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:

The State asserts that we should remand to the trial court for a jury determination on the aggravating circumstances. In support, it directs us to Lawrence v. State, 259 Ind. 306, 286 N.E.2d 830 (1972), in which our supreme court created the bifurcated trial procedure for habitual offender enhancements, which was later enacted by the legislature. But Lawrence did not involve sentencing. It is well-settled that when a trial court relies on improper aggravating factors, and the reviewing court cannot say with confidence that the permissible aggravators would have led to the same result, it should remand for re-sentencing by the trial court or correct the sentencing on appeal. See Means, 807 N.E.2d at 776; see also Sherwood v. State, 749 N.E.2d 36, 39-40 (Ind. 2001) ("Where we find an irregularity in a trial court’s decision, we have the option to remand to the trial court for a clarification or new sentencing determination; to affirm the sentence if the error is harmless; or to weigh the proper aggravating and mitigating circumstances independently at the appellate level."). Again, because we cannot say with the confidence that the trial court would impose the same sentence without considering the improper aggravators, and the trial court in this case is in the best position to balance the aggravators and mitigators, we remand for re-sentencing in light of the remaining aggravating factors.

(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.

No comments: