The Court of Appeals decided a puzzling case today: Wright v. State, Court of Appeals No. 49A02-0405-CR-405 (Ind. Ct. App. December 6, 2004) (Judge Baker writing for Judges Sharpnack and Friedlander). The case affirms, inter alia, three consecutive 15-year sentences for Class B felonies. There is no criminal history in the case and not a word about Blakely.
The opinion is even more puzzling, because briefing in the case was completed on October 8th, and the case was submitted to the court for a decision on November 5th. So the timing did not preclude raising Blakely.
Wright appealed his sentence, and the aggravating circumstances fell into two categories: "(1) the heinous nature and circumstances of the crimes; and (2) Wright’s character." Those would seem to be right down the middle of the Blakely plate.
Judges Baker and Friedlander were both involved in Bledsoe (9/28). Following Carson (8/20), Bledsoe found the Blakely issues technically waived, because they had been raised for the first time in a petition for rehearing and therefore not "in the direct appeal." Carson was also a rehearing opinion; and Carson and Bledsoe both said that the appropriate vehicle to raise Blakely would have been a post-conviction petition, but went on to deny relief on the merits anyway.
As long as I'm on the subject of rehearing opinions, there's also Wickliff (11/03). Not a word there about waiver, even though Blakely was not raised until the rehearing petition. Judge Robb wrote that opinion; Judge Sharpnack concurred.
Judge Baker was also involved in Lampitok (11/16), in which the court dropped a footnote that Lampitok had not raised any Blakely issues, but Blakely would not affect Lampitok's sentence, if he had. So did Judge Baker not raise Blakely on his own in Wright because it would have made a difference?
Recall that we have two opinions, Krebs, which is published, and Baehl (9/29), which is not, that raise Blakely sua sponte. And now that I have gone back to look, Judge Sharpnack actually wrote Baehl. He said there: "Although we would not normally raise [Blakely] sua sponte, we do so here because of the short duration of Baehl's sentence and the unusual circumstances of this case." Slip op. at 3. So Judge Sharpnack signed on to Wright because Wright's sentence isn't short? (As I mentioned here when Baehl first came out, the only thing unusual about Baehl, as far as one could tell from the opinion, was its timing with respect to Blakely).
While not the procedural mess presented by the differing approaches of the various Ohio appellate districts discussed by Doug Berman at Sentencing Law & Policy in this post, it seems to me a mess nonetheless. And the mess is worse here, in some respects, because the Indiana appellate districts no longer matter except politically. (Perhaps someone will raise a challenge to that particular unconstitutional arrangement. I did once, sort of, obliquely, and lost: McCullough v. McCullough.) The mess is worse because the opinions do not explain the entirely contradictory approaches to Blakely and why the very same judges are producing the contradictions.
Opinions are coming from the United States Supreme Court tomorrow and Wednesday, one or more each day, apparently. (See this post on SL&P, drafting off of SCOTUS Blog) If Booker and Fanfan are among them, perhaps Heath and Smylie will follow relatively quickly--as in by the end of next week--and the Great Cat Roundup will begin.