It took a while before I got to the email in which someone sent me the link to the HTML version. If Smylie is important enough to post on its home page, one would think the court could put a copy in its usual place for daily opinions as well, or at least in the archive. I don't know about anyone else who practices law in this state, but I don't recall the last time I looked at the court's home page. I also don't recall the last time the court had an opinion posted there and nowhere else. That's probably because I never look at the court's home page.
Heath is not out. I checked the docket, and the last action in that case was Heath's citation to additional authority on January 12th, which was presumably a note to the court that Booker had just been decided. I can only guess that Heath was not decided, because Smylie involves both enhanced and consecutive sentences, and Heath does not.
The only commentary I have seen so far is Doug Berman's at Sentencing Law & Policy. Although it might cost him a few hits on his site meter, I am going to quote the entire post, available here, below:
In what appears to be the most comprehensive state supreme court decision to date (and the first major post-Booker state supreme court ruling), the Indiana Supreme Court today has ruled on Blakely's applicability to Indiana's sentencing structure in Smylie v. Indiana, No. 41 SO 1-0409-CR-408 (Ind. Mar. 9, 2005) (available here courtesy of The Indiana Law Blog, which already has highlights here).So, with the preliminary aggro out of the way, I shall now move on to a fresh post about what Smylie actually says. After that, a post about why, at the moment at least, I take a pretty dim view of most of the opinion. I guess I should try being less of a malcontent and be grateful, nigh unto rejoicing, for the little it does, grudgingly, get right. I have a few clients who are going to be thrilled.
Smylie appears to be, from a quick skim, a very thorough and thoughtful decision (and I was very pleased and flattered to see this blog getting a "shout out" in footnote 12 of the Court's opinion, although The Indiana Law Blog notes here that I am slightly mis-cited). The Indiana Supreme Court in Smylie has held Blakely applicable to Indiana's laws and has concluded that Blakely-ization (and not Booker-ization) is the appropriate remedy, i.e., the Court rejects the suggestion to make its statutory sentencing structure advisory and instead calls for jury determinations of sentence enhancing facts.
The Smylie decision also covers some retroactivity issues and is certainly today's must-read for Blakely addicts. I am already looking forward to Marci Oddi's commentary at The Indiana Law Blog and also Michael Ausbrook's at INCourts.