Tuesday, March 29, 2005

Smylie's First Bite: Transfer from two published decisions.

I mentioned in yesterday's post that the Indiana Supreme Court has granted transfer in four cases. Two of them are from published opinions of the Court of Appeals and two from memorandum decisions. I'll write a little about the published decisions here and the unpublished ones sometime this evening.

So, the published decisions in which transfer has been granted are.

Patrick v. State, Court of Appeals No. 71A03-0407-CR-312 (Ind. Ct. App. 12/23/04), trans. granted and vacated by Supreme Court No. 71S03-0503-CR-115 (Ind. 3/17/05) (for St. Patrick's Day, apparently). (My original post about Patrick is here.)


Aguilar v. State, Court of Appeals No. 49A05-0307-CR-370 (Ind. Ct. App. 1/18/05) (op. on reh'g), trans. granted and vacated by Supreme Court No. 49S05-0503-CR-125 (Ind. 3/24/05). (My original post about Aguilar is here.)

In both Patrick and Aguilar, it was the State's petition to transfer that was granted. The orders granting transfer say only that transfer was granted.

Patrick is an intricate case that provides any number of reasons for which the Supreme Court might have granted transfer. In light of Smylie, the sore thumb sticking out is the footnote in which the Court of Appeals remands to the trial court for resentencing, rejecting the State's request that the case be remanded for a jury trial on the aggravating circumstances. Smylie, of course, said that sentencing juries are just fine, although without saying why.

Another interesting possibility that I will have to think about some more is that the Supreme Court is going to disagree with the Court of Appeals that the sky, i.e., the maximum sentence, is not the limit once a single "valid" aggravating circumstances is in play. (From the Court of Appeals' opinion: "In other words, the State contends that once a defendant admits, or the jury finds, a single aggravating factor consistent with Blakely, the 'statutory maximum' becomes the maximum sentence authorized for that class of offense and affords the trial court discretion to make additional factual findings that do not comply with Blakely. We cannot agree.")

The third interesting possibility is that in addition to the jury remand, which the Supreme Court is going to have to address, the court is going to also say something about the following bollocks the Court of Appeals makes out of Chapman harmless error analysis after having concluded that there was Blakely error:

In Holden v. State, 815 N.E.2d 1049, 1060 (Ind. Ct. App. 2004), this court applied a harmless error analysis to determine whether to reverse an enhanced sentence which was supported, in part, by aggravating factors that were improper under Blakely. In that case, we concluded that based on all of the valid aggravating factors, “there is no reasonable possibility that the complained of aggravators contributed to the sentence.” Id. (citing as comparison Chapman v. California, 386 U.S. 18, 23 (1967) (federal constitutional errors are harmless when there is no reasonable possibility that the evidence complained of might have contributed to the verdict)). Accordingly, we apply a harmless error analysis here. Indiana Appellate Rule 66(A) provides that “[n]o error or defect . . . in anything done . . . by the trial court . . . is ground for . . . reversal on appeal where its probable impact . . . is sufficiently minor so as not to affect the substantial rights of the parties.” In the sentencing context, “[i]f one or more aggravating circumstances cited by the trial court are invalid, the court on appeal must decide whether the remaining circumstance or circumstances are sufficient to support the sentence imposed.” Merlington v. State, 814 N.E.2d 269, 273 (Ind. 2004).

Merlington, which revised a sentence under state law and in a manner calculated to avoid Blakely, (see my prior posts here and here), and Appellate Rule 66(A) have nothing to do with constitutional harmless error analysis. The Chapman rule cited from Holden is correct. One can only wonder why this panel didn't just stop there.

There were at least two aggravating circumstances in Patrick that did not implicate Blakely: Patrick's ("insignificant") criminal history and the age of his murder victim, to which Patrick stipulated at his plea hearing. The Court of Appeals created a third "valid" aggravating circumstance out of the expansive reading the court has almost uniformly given to the prior conviction exception: Patrick was on probation at the time of the murder, in this case. (I have never been sure why, exactly, it is worse to commit a crime while on probation or parole than after having fully served a sentence. Simply because the crime is not only a crime, but also the violation of a court order? It seems to me at least as bad to commit a crime after having fully served a prior sentence, because it is more demonstrative of lessons not learned given a greater opportunity to learn them.)

In sentencing Patrick to 93 years, imposing both maximum and consecutive sentences, the trial court relied primarily on two aggravators subject to Blakely: 1) the nature and circumstances of the crime; and 2) the liklihood that Patrick would reoffend. (Isn't the latter "merely derivative," as the Court of Appeals would say, of criminal history?) I suppose it's possible, since it granted transfer probably on the jury issue, that the court will, while it's at it, treat the balancing or interplay of the Blakely and non-Blakely aggravating circumstances a little differently from the Court of Appeals.

I don't think the Supreme Court granted transfer in Patrick to enforce the forfeiture rule it created in Smylie. Patrick filed his opening brief in the Court of Appeals on August 30, 2004; the docket doesn't show any requests by either side for supplemental briefing; and the only issue Patrick raised, according to the Court of Appeals' opinion, was Blakely.

Aguilar is another matter. The only ground for transfer that I see is enforcement of the Smylie forfeiture rule that if you did not challenge your sentence in your "direct appeal," you do not get to raise Blakely. Aguilar as we know it was an opinion on rehearing. As recited in Judge Baker's dissent, the court affirmed Aguilar's conviction on July 9, 2004, shortly after Blakely was decided. So it looks like Aguilar did not challenge his sentence until his request for rehearing--which the State, by the way and somewhat surpisingly, did not oppose.

That is, I expect the Supreme Court, in its liberality, is going to define "direct appeal" down to an appellant's opening brief in the Court of Appeals. (One may not raise new issues in a reply brief.) Actually, Smylie almost says as much on its face:

Nevertheless, it does not ask too much that a criminal defendant have contested his or her sentence on appeal, even if the Blakely element of that contest is added later, as it has been by Smylie. Thus, we regard defendants such as Smylie who sought sentence relief from the Court of Appeals based on arbitrariness or unreasonableness (Appellant’s Br. at 3), and who added a Blakely claim by amendment or on petition to transfer as having adequately presented the issue of the constitutionality of their sentence under Blakely.

(I am still trying to figure out what this, from the following paragraph means: "Thus, those defendants who have not raised objections to their sentences should be deemed to have at least forfeited, and likely waived, the issue for review.")

Aguilar received the maximum sentence for Murder: 65 years. This case would be a good candidate for the plane to Habeas Land to see how the federal courts are going to react to Smylie's forfeiture rule.

So much of the wrangling will be moot if, in fact, the General Assembly Booker-izes Indiana's sentencing statutes. All the hubbub since last June 24th will have been a not much more than a fascinating prelude, with some benefits for a few, to the reconstruction, from scratch, of appellate review of now "advisory" sentences.

Why deal with the Sixth Amendment, and the Fourteenth, for that matter, when they can be made irrelevant by a change here or there?

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