In a split decision, the Court of Appeals issued its first opinion really addressing the waiver of Blakely issues today: Williams v. State, Court of Appeals No. 49A02-0402-CR-114 (Ind. Ct. App. Dec. 8, 2004) (Judge Robb writing for Judge Kirsch; Judge Baker concurring in result.) Judge Robb's opinion and Judge Baker's opinion set up and out the major aspects of the waiver dispute without going down the road of fundamental error. So the Court of Appeals is engaging the debate and contributing, perhaps, to the decisions in Heath and Smylie.
From the majority opinion explaining why Williams did not waive his Blakely issues:
[T]he State argues that Williams should have raised an objection under Apprendi. Indiana appellate courts have considered an Apprendi challenge to an enhanced sentence in a non-capital case only once. In Parker v. State, 754 N.E.2d 614 (Ind. Ct. App. 2001), we considered whether enhancing a defendant’s sentence for using a firearm during the commission of an offense was constitutional under Apprendi. In Parker, we reiterated the rule, under Apprendi, that any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Parker, 754 N.E.2d at 618. Referring to the term “prescribed statutory maximum,” we noted the following: A Class A felony has a sentencing range from a presumptive thirty years to a maximum of fifty years. See Ind. Code § 35-50-2-4. Parker received forty years with a five-year enhancement. The application of the enhancement for use of a handgun in Parker's case did not, as a result, increase the maximum penalty for his offense. Parker, 754 N.E.2d at 618 n.7. Therefore, we impliedly held the “prescribed statutory maximum” under our sentencing statutes referred not to the presumptive sentence before any sentencing enhancements, but to the maximum sentence in the sentencing range provided by statute that a defendant could receive for his offense. Williams received three years for his Class D felony conviction, which was the maximum sentence in the sentencing range provided by our legislature for Class D felonies. Without expressing any opinion on the retroactivity of Blakely, it was reasonable for Williams to believe at the time of his sentencing that, because he was sentenced within the sentencing range for a Class D felony provided by our legislature, his sentence did not violate Apprendi, considering our decision in Parker. Thus, Williams has not waived this issue.
This is a slightly different, more formal exposition of Justice Sullivan's remark during the Heath and Smylie arguments that he is not sure why defendants should be penalized for not anticipating Blakely.
Judge Baker has a different view, thinking there should be a penalty:
Here, at no time before the trial court did Williams raise any objection—either specifically under Apprendi or generally under the Sixth Amendment right to trial by jury—to the court’s finding of aggravating circumstances or imposition of an enhanced sentence. Thus, I believe that the issue has been waived. See Mitchell v. State, 730 N.E.2d 197, 201 (Ind. Ct. App. 2000) (holding that when a defendant does not properly bring an objection to the trial court’s attention so that the trial court may rule upon it at the appropriate time, he is deemed to have waived that possible error). The United States Supreme Court issued its opinion in Apprendi, upon which the defendant in Blakely objected to his “exceptional” sentence, well before Williams’s sentencing hearing in January 2004. In my view, that the Apprendi rule was extended in Blakely is of no moment, inasmuch as Williams should have objected on Apprendi grounds and preserved this issue, just as the defendant in Blakely did.
(Emphasis added). Mitchell, cited in that snippet, is about the failure to object to an arguably impermissible conditional restitution order. I'm not sure how Mitchell supports a requirement to make an objection that controlling precedent has foreclosed.
Also, whether Blakely extended Apprendi is question entirely distinct from whether Apprendi objections were foreclosed by controlling precedent in Indiana. As I suggested yesterday in this post, it may well be that Blakely could object in Washington under Apprendi, because there hadn't been a Parker shutting the door.
The better argument to support Judge Baker's position might be that a footnote in a single case from the Indiana Court of Appeals is hardly controlling precedent and maybe only dictum. The controlling precedent was really Apprendi and Blakely didn't change a whit. So the failure to object was not reasonable--even if reasonableness is even in the calculus behind contemporaneous objection rule.
There is, of course, a downside to that from a prosecutorial perspective. That would take the cases in the direct appeal pipeline off the table; but it would set up very nicely ineffective assistance post-conviction claims in cases final before Blakely but after Apprendi. There are a lot of those.
Presumably Judge Baker's response to such ineffective assistance post-conviction claims would be that it was not deficient performance not to raise Apprendi objections because of Parker. But perhaps I presume too much.
I think the part of the part of the majority opinion affirming the enhanced sentences is at best confused on a number of points, but I'll have to get to that early next week, since I am in the near panic stage before leaving town for a while. That is to say, posts in the coming days are going to be brief at best.