Thursday, March 10, 2005

Smylie: Fiat is not just a kind of car

I wrote much of what follows originally as a somewhat intemperate comment to Doug Berman's first post about Smylie yesterday. Steve Sanders, who's involved in the Natale and Franklin cases that will be argued Monday before the New Jersey Supreme Court, and another lawyer, both had nice things to say about Smylie. As I mentioned in yesterday's post, I view Smylie much more dimly:

I wish I could share my colleagues' enthusiasm for Smylie. The applicability of Blakely to Indiana's determinate sentencing scheme was close to a foregone conclusion, even if I was nervous based on the pattern of transfer denials over the last months by the Indina Supreme Court. I may have been a little more nervous recently because of the post-Booker back-pedaling by a couple of judges on the Court of Appeals. But it is almost impossible to read Indiana's sentencing statutes in a way that would avoid Blakely. Not even a panel of the Court of Appeals has said that Blakely does not apply to Indiana sentencing.

The consecutive sentencing holding tosses over 23 years of precedent that says an aggravating circumstance is required to support consecutive sentences. It is simply not so that there has not been a"presumption concerning concurrent or consecutive sentence," as Smylie says. I really hope this is a subject of a cert. petition. At best, this particular holding should only be applied prospectively.

With respect to the "forfeiture" analysis, it makes no sense to shut out people who did not appeal their sentences. As made clear in the amicus brief in Booker submitted by the Public Defender for the Northern District of Texas, there is a serious issue regarding the knowing and intelligent waiver of the constitutional rights established by
Apprendi and reiterated by Blakely. And the people who did not appeal their sentences no more knew about Blakely than the people who did. This is precisely the inequity described by Justice Blackmun in Griffith: "[T]he problem with not applying new rules to cases pending on direct review is the actual inequity that results when the Court chooses which of many similarly situated defendants should be the chance beneficiary of a new rule." The Indiana Supreme Court gets around this by saying, as a procedural matter, that those who did not appeal their sentences are not similarly situated to those who did.

This could be a bonanza on habeas though. The "forfeiture" rule established by Smylie can't, I should have thought, survive as an adequate state ground, however independent it might be, to support state denials of relief. I am right about that, de novo federal review for everyone whom the Indiana Supreme Court has left out of the boat. (That may not be that many people, but there is some number that we cannot know, in part, because of the unpublished opinions of the Court of Appeals.) The Griffith "new rule" analysis is merely a prelude to an opinion applying Indiana's version of Teague to keep the post-conviction dam from bursting. So also was the gratuitous comment that it cannot have been ineffective assistance not to raise Blakely before Blakely. At the moment, post-conviction relief in Indiana is pretty much limited to ineffective assistance claims, which are almost universally despised and therefore ignored.

It will be interesting to see if there will be five justices of the United States Supreme Court willing to make Blakely retroactive to Apprendi.

The remand for resentencing before a jury without any explanation makes no sense for any number of reasons, not the least of which is the lack of any statutory authority. This is really an extraordinary exercise of judicial power and deserved some explanation. The lack of explanation strongly suggests to me a lack of legal justification.

And there is a portion of the opinion rejecting one of the State's (silly) arguments by touching on the aggravator-as-element theme. All but one of the aggravating circumstances supporting Smylie's enhanced sentences are non-statutory. On one view at least, and the view was raised at the oral argument, the use of non-statutory aggravators amounts to the creation of common law crimes. There is not a word about this. (The single statutory aggravator applied cannot be used to enhance a sentence, but the court says nothing about this either.)

And in view of the aggravators-as-elements theme, the State now gets to go back and, in essence, amend the charging information to include the aggravators? There might be a small double jeopardy problem with that.

Why should not Smylie be entitled to withdraw his guilty plea? He was completely misadvised about the possible penalties arising out of the information as filed and, in fact, about the elements of the crimes with which he was charged.

Some of this, at least, is what results from not following the Oregon Supreme Court in Dilts and the Arizona Supreme Court in Brown, I think it was, and not leaving all the questions not necessarily presented by the case to be litigated in the remand. Some considerable degree of chaos may have been unavoidable on remand, perhaps. But deciding the jury issue alone has the court's thumb squarely pressing the scales on the side of the State. Consider the position of the trial judge: the Supreme Court has ordered a trial of aggravators before a jury, so the State gets to do what it will to achieve that.

In the "severance" analysis, the court does not even identify what statute it is "severing" to reach the result it does. As in Booker, no statute is facially unconstitutional, so the court's discussion of what severability analysis it has adopted completely misses the point. Indiana's sentencing "system" is not unconstitutional, though it may have been applied unconstitutionally to Smylie. Consider the numerous cases from the Court of Appeals affirming sentences because Blakely, though applicable to Indiana's sentencing scheme, had no effect on the sentences in those cases.

Consider also the court's own quotation from Dorchy v. Kansas: "A statute bad in part is not necessarily void in its entirety." In fact, the court "severs" nothing, but imposes a jury trial provision out of thin air without identifying any statute that is "bad in part." It is simply untrue that the court applies Dorchy severability analysis. The quote and citation make for nice legal apparatus; but they are entirely misleading.

It is also untrue that there were only two possibilities: the Booker option or the jury option. There was at least a third: no enhanced sentences until the General Assembly amends the sentencing statutes. In essence, there would only have been enhanced sentences for those who admitted aggravators or had criminal histories. That would be Dorchy severance, or something at least more resembling it, if the court could identify a "bad" statute.

I am necessarily at a loss for words to discuss the affirmance of consecutive sentences that the court reverses and remands for "a new sentencing hearing." This is, quite literally, non-sense. Having found the enhancements to the individual sentences violated Blakely, there was, in fact, no reason for the court to even address the consecutive sentencing issue yet. It's not as though there is any split in the decisions of the Court of Appeals.

I see much of this as the damage
the remedial opinion in Booker has done. Anything goes, almost, for any reason or for no reason that has anything to do with the law. (The way Chief Justice Shepard writes of the choice between the false severance alternatives is almost blythe. "It's a little more like this than that.")

Obviously, after Smylie, the Indiana Blakely cup is not entirely empty. As I wrote in one of last night's posts, I have a few clients who are going to be thrilled. And equally obviously, many Blakely-related issues remain to be litigated and would have remained to be litigated whatever Smylie said. Neither Heath nor Smylie presented any question related to the prior conviction exception to Blakely and Apprendi.

But Smylie gives me little reason to believe or even hope that when these issues arrive in the Indiana Supreme Court, they will be decided other than as many issues in Smylie were: by fiat.

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