Monday, March 28, 2005

Harris: The Court of Appeals applies Smylie.

There is a great deal going on in Indiana's patch of Blakely World. Or should I just call it Blakeliana on the model of calling the borderland with Kentucky "Kentuckiana"? (Probably the better choice, from a Hoosier perspective, than the alternative: "Indiyucky.")

The Transfer Machine has begun to roll with four grants by the Indiana Supreme Court. And, as reported by Marcia Oddi in this post at the Indiana Law Blog, there has been an amendment to Senate Bill 96, the General Assembly's attempt to deal with Blakely, that would appear to Booker-ize Indiana's sentencing statutes. Before the amendment, Indiana was headed toward the Kansas solution to Apprendi.

For now, I just want to note that the Court of Appeals issued its first post-Smylie Blakely reversal today in Harris v. State, Court of Appeals No. 02A03-0310-CR-414 (Ind. Ct. App. March 28, 2005). The only thing of much interest in this opinion is that Harris's opening brief was filed before Blakely had been decided. Harris did challenge his sentence in his opening brief, though not under Blakely, obviously. So the Court of Appeals applied Smylie's odd forfeiture rule and permitted Harris to raise Blakely in his reply brief.

I think the Smylie forfeiture rule as applied by the state appellate courts may well amount to an independent equal protection violation by those courts. And it may also be the royal road to de novo habeas review for those who are shut out. Both are complicated problems.

Finally, the Court of Appeals has a very strange way of putting things sometimes. This from Harris: "Finally, based upon Smylie, we conclude that Blakely does apply to Indiana’s sentencing scheme . . ." As if they'd made some sort of indepedent decision and were free to conclude otherwise.

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