Berry: The first post-Smylie transfer decision

The first post-Smylie transfer decision that I know of has come from the Indiana Supreme Court in Berry v. State, decided by the Court of Appeals back in December. (Thanks again to Marcia Oddi at the Indiana Law Blog for putting the weekly transfer lists up. Besides providing great information, it saves me a lot of mousing around in the court's incredibly cumbersome online docket).

Transfer was denied. Berry came down from the Court of Appeals on December 14th during my holiday Warsaw idyll, and I didn't write anything about it specifically, although I mentioned it, at least, in this post. In essence, the denial of the transfer in Berry appears to approve quite a broad reading of the prior conviction exception.

For reasons I hope to get to in a followup post this weekend about Jaramillo (earlier post here) and Serrano, a case disapproved in a Jaramillo footnote, one has to take the "appears to approve" quite seriously--and not just because Appellate Rule 58(B) says that a denial of transfer means nothing except the end of the litigation in the Supreme Court.

Anyway, here, sliced up a bit, is the broad language about the prior conviction exception--now the "criminal history exception" in Indiana?--that the denial of transfer in Berry apparently approves:

Here, it is apparent from the face of the record that the trial court identified three aggravating circumstances: (1) the risk that Berry would commit another crime; (2) the nature and circumstances of the offense; and (3) Berry’s criminal record. The trial court first discussed the “risk the defendant will commit another crime . . . and [found] that it is great.” Immediately thereafter, the court mentioned Berry’s “constant involvement in the criminal justice system” and the fact that he was on parole the day Lee was shot. Those statements support the conclusion that there was a substantial risk that Berry would commit another crime. The court next discussed the nature and circumstances of the crime when it emphasized the biological relationship between Lee and Berry, the “silly” cause of the dispute, and the number of people in the neighborhood who were outside at the time of the shooting and whose lives were thereby endangered. Finally, the trial court observed that Berry’s criminal history is “significant” and “escalating.”

. . . .

Here, the trial court did not detail Berry’s criminal history in its sentencing statement, but the pre-sentence report reveals that it is substantial. Berry, who is only twenty-eight years old, has already accumulated a criminal record consisting of convictions for dealing in cocaine, possession of cocaine, and possession of alcohol by a minor and delinquency adjudications for possession of cocaine, illegal possession of a handgun, auto theft, criminal trespass, and truancy. Moreover, the pre-sentence report was discussed extensively at the sentencing hearing, and Berry’s counsel conceded that the trial court could properly enhance the sentence given Berry’s criminal history. Indeed, at the hearing, Berry’s counsel stated, “We know that [Berry’s] criminal history is there; that the Court may aggravate the sentence; and that a presumptive on this is ten years.” Berry cannot now claim that the trial court erred when it relied on his criminal history.

. . . .

As we discussed in Part A of this section, the trial court enhanced Berry’s sentence based on three aggravators, namely, the risk that he would commit another crime, the nature and circumstances of the offense, and his criminal history. Clearly, Berry’s prior criminal history does not trigger a Blakely analysis. The second aggravating circumstance, the risk that Berry would commit another crime, also falls outside the scope of Blakely. The trial court based its assessment of the likelihood that he would commit another crime on his “constant involvement in the criminal justice system,” an observation derived from Berry’s criminal history, and Berry’s admission that he was on probation at the time of the offense. Accordingly, the risk that Berry would commit another crime is not subject to the Blakely analysis.

(Citations omitted) (footnotes omitted) (emphasis omitted).