Wednesday, March 30, 2005

Smylie: A Trip to the Nether World of the NFP.

In addition granting transfer in the two published decisions in Patrick and Aguilar, the Supreme Court has granted transfer in two unpublished decisions.

Lara Campbell v. State, Court of Appeals No. 03A01-0309-CR-350 (Ind. Ct. App. 11/5/04) (mem.), trans. granted and vacated by Supreme Court No. 03S01-0503-CR-114 (Ind. 3/18/05);


William Payne v. State, Court of Appeals No. 49A04-0311-CR-576 (Ind. Ct. App. 10/29/04), trans. granted and vacated by Supreme Court No. 49S04-0503-CR-113 (Ind. 3/24/05).

In Campbell, the online docket shows that in addition to granting transfer, the Supreme Court has summarily remanded the case to the Court of Appeals for reconsideration in light of Smylie. Although I have not seen the opinion yet, it is not hard to guess why transfer was granted and why the case was remanded to the Court of Appeals. In Mitchell v. State, Court of Appeals No. 49A05-0312-CR-625 (Ind. Ct. App. 11/22/04), trans. pending, a case decided about the same time as Campbell, the very same panel, Judge Baker writing for Chief Judge Kirsch and Judge Robb, concluded Mitchell's Blakely claim had been waived / forfeited by the failure to make an Apprendi objection at sentencing. (Since Mitchell was a waiver case, I am embarassed at having missed it when it was published on January 18th. My only excuse is that II was in the early stages of my post-Booker depression.)

So I'd say Campbell is going back for consideration of the Blakely merits, since Smylie said a trial court Apprendi objection is not required to preserve the issue. (Transfer is pending in Mitchell, and not having seen the Campbell opinion, I don't have a green idea why Mitchell would not have been sent back as well.)

In the "Go Figure" department, the Campbell / Mitchell panel also decided another Blakely case in a published decision on December 8th: WIlliams v. State, Court of Appeals No. 49G20-0310-FA-176400 (Ind. Ct. App. 12/8/04), trans. pending. Judge Robb wrote that opinion for Chief Judge Kirsch with Judge Baker concurring in the result of no Blakely relief. But in Williams, Judges Robb and Kirsch said that the failure raise an Apprendi objection at sentencing did not waive / forfeit the Blakely claim.

Now, I haven't seen the Campbell opinion, so I'll stick to Mitchell, decided just over two weeks before Williams. Recall that Mitchell was an unpublished decision when it first came out on November 22nd and was still unpublished when WIlliams came out on December 8th. So one of two things seems to be the case: Judge Robb and Chief Judge Kirsch changed their minds about waiver / forfeiture between November 22nd and December 8th; or both think it's just fine to declare the law to be one thing in a published opinion and another in an unpublished one.

I am all for judges changing their mind. And maybe that's what happened. Maybe. But then why not grant rehearing sua sponte in Mitchell to correct the case in light of their new understanding? Because Mitchell's 93-year sentence didn't matter and Mitchell was unpublished? Maybe, in light of Mitchell's "horrible criminal history of violent activity," Blakely may have made no difference, and so there was no compelling reason to do it over. Maybe.

The rather revolting surprise, of course, is that Mitchell did end up being published in January. So now there are two published opinions in which Judge Robb and Chief Judge Kirsch cannot even agree with themselves about waiver / forfeiture of Blakely issues. I guess it's the Lee Hayes approach to judging: "The older I get, the more interesting my mind becomes. I don't always agree with it, but it's more interesting."

Payne, the other unpublished decision in which the Supreme Court has granted transfer is interesting for its disposition: the Supreme Court summarily remanded to the trial court for resentencing with the following interesting orde to be found on the online docket:

After reviewing the parties' arguments, we believe it is unlikely appellant's enhanced sentences could be sustained in light of our recent decision interpreting and applying Blakely. Accordingly, we grant the appellant's transfer petition and remand this case to the trial court with instructions to reduce appellant's sentences to the presumptive sentences for each count, each to run consecutively in a sequence to be determined by the trial court. Because the trial court sentenced the appellant beyond the presumptive sentences for each count and ordered the sentences served consecutively, there is no reason for the trial court to conduct a new sentencing hearing.

I understand what the court is trying to do by this order, but it suffers from the same formal "irregularity" that Smylie did when it affirmed consecutive sentences it had just vacated, at least to the extent a new sentencing hearing is not required.

The order also creates the necessity of a new appeal of the consecutive sentences under Blakely--at least to the extent that Payne might want to pursue post-conviction or habeas relief. The Supreme Court has the constitutional power to review and revise sentences without sending the case back to the trial court for resentencing. In Merlington and Francis, the court revised sentences and sent the cases back for the trial court to perform merely ministerial duties of entering the orders to reflect the Supreme Court's revisions. The court asks the trial court to do a little more than that here.

But "Hurray," I say generally, to the idea of summary remands on transfer. I have thought for a long time that it ought to happen often. The Supreme Court could take care of a lot more error correction--and there are plenty to be corrected--without having to gin up an opinion every time. Less work and less damage all the way around.

I hope to have my hands on the opinions in Campbell and Payne within a few days. If there's something interesting in them, I'll post.

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