Below, I have pulled out of Mike Limrick's article his (terrific) comments about some of the issues remaining after Smylie. His comments about the aggravators-as-elements problem are especially important, it seems to me, because it is a problem that has largely gone unaddressed by courts nationwide.
Often overlooked in the litigation over Blakely’s meaning is that its rule encompasses not only the right to a jury trial, specifically, but also the right to notice and due process, generally. In Apprendi v. New Jersey, the United States Supreme Court stated that its holding in Jones v. United States that “[u]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt” applied in its entirety in cases involving a state statute under the Fourteenth Amendment. Nothing in Blakely affected the portion of the rule discussing the charging instrument. Therefore, although indictments in state prosecutions are not required by the Constitution, proper notice of the entire charge--including, now, Indiana’s aggravating factors--is.
This is important because the Court in Smylie simply vacated the sentence, not the underlying conviction. That conviction was based on Smylie’s charging information, which, presumably, did not provide notice of the aggravating factors the trial court later found. So, although the Court in Smylie remanded for “resentencing,” what it essentially allowed the State to do is amend the charging information and conduct additional trial proceedings to secure a conviction on all the elements necessary to the enhanced sentence. This course of action may, itself, be an unconstitutional remedy to the constitutional problem.
Indiana law permits amendments to the charging instrument, by motion of the prosecutor, at any time as long as they do not “prejudice the substantial rights of the defendant.” It is difficult to imagine a scenario in which a defendant’s substantial rights would not be prejudiced by the filing of an amendment that adds an element to the charge after conviction. The Indiana Supreme Court’s allowing such an amendment, at the very least, raises serious questions under the United States and Indiana constitutions. The Court, however, did not address those issues in Smylie.
Just as unsettled, from a practical standpoint, is how trial and appellate courts are now to handle their cases, either in the first instance or on remand. In addition to the charge-amendment question, courts must also determine, inter alia, what aggravators the State may properly charge (i.e., whether they must be explicitly listed by statute), when they must be charged, how to handle evidentiary issues in the sentencing phase, whether a “history of criminal activity” must be charged and proven (or whether that statutory aggravator is the same as the “fact of a prior conviction” under Apprendi), and under what circumstances a remand for resentencing (under any regime) is required by Blakely. The Court in Smylie offered no guidance on these issues due, at least in part, to the fact that some were not raised, but a determination of all of them is necessary for courts to function properly post-Smylie.