Wednesday, April 27, 2005

Abran & Higginbotham: More on NFP's and Blakely errors

There have been in the last two weeks two curious Blakely decisions published by the Court of Appeals: Abran v. State (decided 3/16/05, published 4/12/05) and Higginbotham v. State (decided 3/10/05, published 4/22/05).

Besides being NFP's that were later published, the two opinions have this curious aspect in common: they were both decided after Smylie, which was decided on March 9th, and they both read as if Smylie did not exist. In Abran, for example, the Court of Appeals deals with the State's standard waiver argument by reliance on it own case, Strong. And the Abran opinion with this quite remarkable observation: "Even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, we conclude that this finding would have no effect on Abran’s sentence."

Abran issued a full week after Smylie. The failure to change the opinion to reflect Smylie's existence I can only attribute to ignorance or sheer sloth. It's probably the latter, with the thought running something like, "Why recirculate an amended opinion that won't change the outcome in an NFP?" I can come up with one good reason: so Abran's lawyer wouldn't have to spend time explaining to Abran that inclusion of Smylie would not have made any difference.

It's actually pretty remarkable that the Abran panel would have wanted anyone to see this. I guess I can only be grateful for yet another view into the Nether World of the NFP.

Higginbotham involves a guilty plea to a specific sentence recommendation. Although the opinion does not mention Smylie, there is no obvious reason or place that it had to, I suppose. Still . . . .

Higginbotham is worthy of note for an additional oddity. The opinion, affirming Higginbotham's sentence, issued on March 10th. On March 21st, the State moved to have the opinion published. The opinion was certified, i.e., became final, on April 20th. Two days later, the Court of Appeals granted the motion to publish.

To start with, I'm not sure that the Court of Appeals technically has the power to order an opinion published once it has been certified. Second, it sure looks like the panel was waiting for certification before ordering publication. Was that to avoid making the decision attractive to the Supreme Court in any eventual transfer petition? (No transfer petition ever showed up, and the time for filing one expired on April 9th.) I don't know. I guess everyone can draw their own inferences.

Substantively, Abran rehearses two motifs in the Court of Appeals' Blakely decisions. First, the need for rehabilitation and the liklihood of committing another crime are simply "derivative" of criminal history. So Carson, arguably Indiana's very first Blakely opinion, still has legs.

Second, having found three of five aggravating circumstances used by the trial court not subject to Blakely, the Abran panel (Crone, Riley, and Robb) does the strict state law version of review: "a single aggravating circumstance is adequate to justify a sentence enhancement." (Emphasis added).

This is the approach first expressed by the Court of Appeals in Stott, I think, a case in which Judge Riley also concurred back in January. On the other hand, Judge Riley has written three opinions--two majority (Altes and Abney and Altes), one dissenting (Riehle)--in which she has explicitly taken the intermediate state-law approach of Patrick. Maybe these judges see no distinction between Stott and Patrick, and I'm making too much of the difference.

In any event, as I mentioned in yesterday's post, this is the wrong battle. I think the Court of Appeals can argue in its cases and among its panels about whether Blakely error is structural or subject to Chapman harmless-error analysis; I do not think that the application of any of the state-law approaches arises from anything but a complete misunderstanding of what Blakely error is. (Of course, if the approach does not arise out of misunderstanding, then something else is going on.)

This Court of Appeals does this, though, all the time, and it is quite incredible. One of my favorite examples is Sallee v. State, 785 N.E.2d 645, 656 (Ind. Ct. App.), trans. denied, cert. denied 540 U.S. 990 (2003), another case in which Judge Riley concurred:

Although we have determined that the trial court erred in denying Pierce's objection and motion to suppress, we must now examine whether the error was harmless. See Gibson v. State, 733 N.E.2d 945, 958 (Ind. Ct. App. 2000). A Fourth Amendment error is subject to constitutional harmless error analysis. Id. An erroneous admission of evidence is harmless where "its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the party." Indiana Appellate Rule 66(A).

(Emphasis added.) What is truly remarkable about this is that Gibson, on which Sallee relies for its doggerel, actually gets it right: "A Fourth Amendment error is subject to constitutional harmless error analysis. If we can state beyond a reasonable doubt that the improperly admitted evidence did not contribute to the verdict, then the error is harmless." (Citations omitted). (Now that it's occurred to me, I'll have to think about whether Sallee deserves a place on the Black List. I'll accept votes either way as comments.)

The other lesson of Sallee is don't count on the U.S. Supreme Court to grant cert. over this--even with a summary remand.

This is far afield, perhaps, from things Blakely. Except it's not. It shows, I think, two things: what the lawyers in this state are up against; and that the Indiana Supreme Court needs to get busy herding the cats--and maybe disciplining them with a water bottle until the cats learn not to walk on the tables.

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