Sunday, March 13, 2005

Last Week's Transfers: Jaramillo, Monge, and 1998

Thanks to Marcia Oddi’s posting the transfer list each week on the Indiana Law Blog, we know that the Supreme Court granted transfer in three cases this week, all of them involving published opinions of the Court of Appeals. Two were civil, and the one criminal appears to be something of an odd duck: State v. Jaramillo, Court of Appeals No. 76A03-0306-CR-209 (Ind. Ct. App. 2/11/04), trans. granted and summarily aff’d by Supreme Court No. 76S03-0503-CR-93 (Ind. 3/11/05). I am only going to discuss Jaramillo tonight.

The two civil cases were Midtown Chiropractic v. Illinois Farmers Ins. Co., Court of Appeals No. 49A02-0312-CV-1047 (Ind. Ct. App. 7/30/04) and Depuy, Inc. v. Farmer, Court of Appeals No. 93A02-0404-EX-301 (Ind. Court App. 10/5/04). Here is the direct Real Player link to the oral argument in Midtown Chiropractic. There does not appear to have been an oral argument in Depuy, which is a Worker’s Comp. case in which the Court of Appeals reversed an award and in which, it would appear, the Supreme Court is going to reinstate the award.

Jaramillo is an odd duck at the moment not so much because the Supreme Court granted transfer and issued an opinion at the same time–it does that from time to time, and it used to operate that way all the time– but because the docket entry shows a seven-page opinion; and that opinion is nowhere to be found either on the web or on Lexis. Lexis doesn’t have it yet that transfer’s been granted, so the absence of the opinion there isn’t so surprising.

Jaramillo is also cert. meat and a most delectable cut, if the State Public Defender’s Office is willing to pursue it. It raises the question of Monge’s and, obliquely, Amendarez-Torres’s continued vitality.

The short of it is that Mr. Jaramillo was charged with and convicted for OWI as a C felony, enhanced to a B by virtue of two alleged prior convictions, one of them in 1998. (See Ind. Code § 9-30-5-5) He was also charged as and found to be an Habitual Substance Offender, again, in part, because of the alleged 1998 conviction. (See Ind. Code § 35-50-2-10).

The problem was that the State merely proved that Jaramillo had pled guilty to the alleged 1998 conviction and that the judge had taken the plea under advisement. The State did not prove that a judgment of conviction had ever been entered. For the time being, I will take the Court of Appeals’ word for it that there is Indiana Supreme Court precedent saying that that wasn’t enough. It makes sense that if the State has to prove a prior conviction, it has to prove a prior conviction and not just that there was a probable cause affidavit, a charging information, and an allocution.

So the Court of Appeals reverses the B-felony “enhancement” to the OWI conviction and the habitual substance offender finding. No problem.

Tthe question then arises whether the State gets another go at proving the 1998 conviction. The Court of Appeals says that everyone agrees about one thing: Monge is the critical case. I’m not so sure, and I’ll have to look at the structure of the California three-strikes law at issue in Monge.

But, despite a pat on the back for Jaramillo’s appellate lawyer for a good try, the Court of Appeals goes with Monge. The pat on the back is for arguing that Almendarez-Torres, Apprendi, and Ring effectively overruled Monge. What the Court of Appeals says to this is actually pretty interesting: “[A] synthesis of those decisions simply does not present a compelling enough case to permit this court to take upon itself a task that the Supreme Court has thus far refrained from undertaking, viz., announcing that Monge is a dead letter.”

Now, I thought I had learned something when the Seventh Circuit issued Booker last July: “We are mindful of the Supreme Court’s ukase that the lower federal courts are not to overrule a Supreme Court decision even if it seems manifestly inconsistent with a subsequent decision, unless the subsequent decision explicitly overruled the earlier one.” (Citation omitted.) I actually only learned half a something, because I only took away that lower courts can’t overrule U.S. precedent on their own. Of course, the “ukase,” Judge Posner says, is only directed at the lower federal courts. Could it be true that, perhaps under its supervisory power, the United States Supreme Court can prevent lower federal courts from overruling its cases, but that it has no such power over state courts? (Recall that in Roper, the Missouri Supreme Court would appear to have overruled Stanford v. Kentucky, 492 U. S. 361 (1989), if only for Missouri.)

So maybe the Indiana Court of Appeals could have overruled Monge, for Indiana at least, had it wanted to. If anyone has some insight into this, please post a comment.

With respect to the argument that Almendarez-Torres, Apprendi, and Ring had collectively overruled Monge, the Court of Appeals drops its Footnote 3, noting that “Almendarez-Torres was decided before Monge.” (Ironically for this case, perhaps, they were both decided in 1998). And it’s hard to disagree that Almendarez-Torres probably didn’t contribute to overruling a later case.

But now there’s the transfer order in the docket, which I find almost impossible to understand without seeing the opinion: “we grant transfer pursuant to Appellate Rule 58(a), summarily affirm the opinion of the court of appeals as to the issue discussed in footnote three, and remand this case to the trial court.” (Emphasis added.) What’s the issue in Footnote 3? Almendarez-Torres was decided before Monge.

There is a reason I have to go look at Monge and California’s three-strike law. The quotation from Monge used by the Court of Appeals in its opinion makes my generally trusting soul suspicious. Here’s what the Court of Appeals says:

Lest there be any doubt that the issue before the Court in Monge is the same one before us in the instant case, we reproduce the following from Monge:

Petitioner contends that the rationale for imposing a double jeopardy bar in Bullington … applies with equal force to California’s proceedings to determine the truth of a prior conviction allegation. Like the Missouri capital sentencing scheme at issue in Bullington, petitioner argues, the sentencing proceedings here have the “hallmarks of a trial on guilt or innocence” because the sentencer makes an objective finding as to whether the prosecution has proved a historical fact beyond a reasonable doubt. The determination whether a defendant in fact has qualifying prior convictions may be distinguished, petitioner maintains, from the normative decisions typical of traditional sentencing. In petitioner’s view, once a defendant has obtained a favorable finding on such an issue, the State should not be permitted to retry the allegation.

Monge v. California, 524 U.S. at 731 (internal quotes in original, but unattributed). As the foregoing reflects, the Monge decision is squarely on point with the matter under consideration here.

(Emphasis added).

But in Indiana, for the OWI and habitual substance offender “enhancements,” it is not “the sentencer” who makes the factual findings. It is the jury, and it does not make the findings during sentencing proceedings. For that reason alone, Almendarez-Torres does not apply, so I will have to have a look-see at Monge.

. . . A little later. One bell that went off for me with Jaramillo was my recollection that there is pretty well-established precedent that a reversal of a general habitual offender finding (Ind. Code § 35-50-2-8) for insufficient evidence bars a retrial of the issue. The last case to deal with the question it appears, although I am far from certain, is Parker v. State, 696 N.E.2d 737 (Ind. 1998). (1998 seems to have been a very important year for Mr. Jaramillo.) The Indiana Supreme court says this:

Defendant contends that the evidence is insufficient to support the finding that he is a habitual offender. If so, the State would be precluded from re-trying defendant as a habitual offender because "the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars reprosecution of a habitual offender charge where the State has failed to prove that status due to insufficient evidence." Poore v. State, 685 N.E.2d 36, 39 (Ind. 1997) (citing Bell, 622 N.E.2d at 456).n13

Parker, 696 N.E.2d at 743. And guess what footnote 13 says: “The United States Supreme Court's recent opinion in Monge v. California, 118 S. Ct. 2246 (U.S. 1998), implicates this principle. Given our conclusion [that the evidence was sufficient], we elect not to apply Monge here as the parties have not had the opportunity to brief its applicability.”

Well, the question really is whether Monge “implicates the principle” when it is not “the sentencer” doing the fact-finding during sentencing proceedings. If the Supreme Court opinion in Jaramillo applies Monge to this situation, it is a huge change in well-established Indiana law. I guess we’ll have to see the opinion.

There is also another question to be looked into: the 3-8 additional years for a finding that someone is an habitual substance offender might properly be characterized as a “sentencing enhancement” that gets you into the land of Monge. The jump from a C to a B felony for the OWI with two prior convictions simply isn’t structured the same way. The C and B felony versions are different crimes with different elements. The habitual substance offender statute adds years to the sentence for an “underlying” conviction; sentencing for C and B felonies proceed under two entirely different statutes.

I can’t wait to see the opinion.

1 comment:

Steve (from NJ) said...

I thought Monge's basic holding is that where the Legislature has afforded trial type proceduress to a pure sentence-enhancing fact (something not an element for 6th Amendment purposes), the federal Double Jeopardy Clause does not apply to retrials after appellate reversals for insufficient evidence. The dissent in Monge simply disagreed with Almendarez-Torres, and believed that the three-strikes aggravator was an element of a greater offense. Sattazahn v. Pennsylvania bears this out.

The wrinkle added by the new Indiana case is not whether Monge has been or needs to be overruled, but whether Almendarez-Torres will fall. For if the fact of prior conviction is NOT an element for Sixth Amendment purposes, then it can only be STATE (not federal) double jeopardy principles that bar a retrial after reversal for insufficient evidence. Put otherwise, the fact that a state legislature has given trial-like procedural protections to a fact that is not an element for federal constitutional purposes does not bring federal double jeopardy principles into play.