Thursday, March 31, 2005

Payne & Campbell: More from the Nether World

A blog helper got me copies of Campbell and Payne, the two unpublished decisions discussed in my previous post in which the Supreme Court granted transfer. In Campbell, the Supreme Court remanded to the Court of Appeals for reconsideration in light of Smylie. In Payne, the court remanded to the trial court for imposition of consecutive presumptive sentences because, the court said in its order, it was unlikely that Payne's enhanced sentences could survive after Smylie.

The aggravating circumstances recited in the Court of Appeals' opinion in Payne and which are subject to Blakely are, generically the following: 1) the risk of future criminal conduct; 2) the potential future threat to the victim; 3) the nature and circumstances of the crime; 4) the defendant occupied a position of trust with respect to the victim; the violation of pre-trial protective orders; 5) the defendant threatened a witness and court staff; 6) the defendant's need of treatment that can best be provided in a penal facility; 7) the victim's age; and 8) the crimes were committed in the victim's home.

Recall that in Campbell, I speculated that the reason the Supreme Court has remanded the case to the Court of Appeals for reconsideration in light of Smylie is that Campbell did not forfeit her Blakely claim under Smylie's forfeiture rule. Now that I've seen the opinion, I appear to have been correct about that. The Court of Appeals refused to consider Campbell's Blakely claim, because she had not raised an Apprendi objection at sentencing.

Recall also Campbell is one of three Blakely cases (that we know about) decided by Judge Baker, Judge Robb, and Chief Judge Kirsch. The other two are Mitchell and Williams. Judge Baker wrote both CampbellMitchell, which were handed down as unpublished decisions on October 29 and November 22, 2004, respectively, with both Judge Robb and Chief Judge Kirsch concurring. (Mitchell was published on January 18, 2005.) and

So on October 29th and November 22nd, Judge Robb and Chief Judge Kirsch both voted for the following identical language from Judge Baker's pen regarding forfeiture of Blakely claims:

The United States Supreme Court issued its opinion in Apprendi, upon which the defendant in Blakely objected to his “exceptional” sentence, well before Mitchell’s sentencing hearing in 2004. That the Apprendi rule was extended in Blakely is of no moment, inasmuch as Mitchell should have objected on Apprendi grounds and preserved this issue, just as the defendant in Blakely did. As a result, we decline to disturb Mitchell’s sentence.

On December 8, 2004, 16 days after Mitchell was decided, Williams came out, with Judge Robb writing for Chief Judge Kirsch:

Without expressing any opinion on the retroactivity of Blakely, it was reasonable for Williams to believe at the time of his sentencing that, because he was sentenced within the sentencing range for a Class D felony provided by our legislature, his sentence did not violate Apprendi, considering our decision in Parker. Thus, Williams has not waived this issue.

I did post about Williams the day it came out, calling the decision the beginning of the Blakely waiver debate. I just had no idea that two of the judges involved were debating themselves.

It actually gets uglier. On December 1st, still before Williams had been decided, Campbell requested rehearing. On December 23rd, 15 days after Williams, the Court of Appeals denied the request. I have spoken with one of the lawyers representing Campbell in the Court of Appeals, and the rehearing request did include a request to reconsider the waiver issue.

So when rehearing in Campbell was denied on December 23rd, Williams had specifically held that an Apprendi objection at sentencing was not required to preserve a Blakely claim on appeal, while Holden and Krebs had impliedly so held. Judge Robb and Chief Judge Kirsch, who had voted for the forfeiture holding in Williams, then apparently voted against rehearing in Campbell. (Rehearing was not sought in Mitchell.)

Who knows what else is buried in the nether world of the NFP?

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