To provide an idea of what the problems may be with appellate review of sentences after the Governor signs Senate Bill 96 (which he may have already signed, actually), below are two paragraphs from today's opinion from the Court of Appeals in Dixon v. State. It is a pretty straightforward, boilerplate application of Appellate Rule 7(B), which is why I am putting it out here.
With the first half of the analysis, "the nature of the offense," there may not be much of a problem. An appellate court can use the not-so-advisory advisory sentence as "the starting point" as easily as the former presumptive sentence.
The rub is going to come in the second half of the analysis, "the character of the offender," which Dixon pretty accurately describes as "the general sentencing considerations under Ind. Code § 35-38-1-7.1(a), the balancing of the aggravating and mitigating factors under Ind. Code § 35-38-1-7.1(b) and (c), and the other factors left to the trial court’s discretion under Ind. Code § 35-38-1-7.1(d)." The Dixon opinion goes on: "Pursuant to Ind. Code § 35-38-1-7.1(a), the trial court must consider, among other things, the nature and circumstances of the crime committed, whether the victim was less than twelve years of age, the defendant’s criminal history and character, and the risk that the defendant will commit another crime."
Except now, the trial courts will not be compelled to consider anything, as far as I can tell, much less explain the reasons for the sentences they impose. To misappropriate, perhaps, language from Sullivan v. Louisiana, there is not going to be anything on which appellate review can operate, except the sentences themselves.
Some pure hearsay without any indicia of reliability: some judges have been told by some authority in some context that they had better use their new authority wisely, or they will be back to Blakely. I'm not sure what that means. I guess the Indiana Supreme Court could, theoretically, make the Booker-ized sentencing statutes again subject to Blakely by imposing the necessary conditions from above. I think the chances of that happening are zero, although I think the court is going to want to come up with some bridling mechanism, if only so it and the Court of Appeals are not flooded with sentencing appeals and so that the courts do not have to do their review of sentences de novo.
Given the nature of SB 96, though, I'm really not sure that Indiana has not, as a practical matter, eliminated sentencing appeals. Maybe I need to come up with an article of the type, currently in fashion, "Rethinking Appellate Review of Sentencing after Senate Bill 96." I don't think there's anything to think or rethink about sentencing itself. But maybe there is, and I just don't get it yet.
Another lawyer who knows a great deal about Blakely in Indiana has said that Senate Bill 96 will set criminal law in Indiana back decades. I guess we'll see. I don't know whether mandatory minimums (or is that minima?) of the sort being considered by Congress would be worse. I guess they'd just be (arguably) bad in a different way.
Given the percentage of cases that are disposed of by plea bargains, the non-appellate question of the day has to be what effect SB 96 is going to have on the plea bargaining process. The game is going to have completely different rules.
So, just as an experiment, try to imagine what the following passage from Dixon might look like after SB 96 becomes law:
Under Article VII, Section 6 of the Indiana Constitution, we have the constitutional authority to review and revise sentences. However, we will not do so unless the sentence imposed is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). Our review under Appellate Rule 7(B) is extremely deferential to the trial court. Martin v. State, 784 N.E.2d 997, 1013 (Ind. Ct. App. 2003), reh’g denied. The “nature of the offense” refers to the statutory presumptive sentence for the class of crimes to which the offense belongs. Id. Thus, the presumptive sentence is the starting point in our consideration of the appropriate sentence for the crime committed. Id.
In the present case, Dixon was convicted of two Class A felonies, a Class B felony, and a Class D felony. The presumptive sentence for a Class A felony is thirty years with the minimum sentence being twenty years and the maximum sentence being fifty years. See Ind. Code § 35-50-2-4. With respect to one of the kidnapping counts, Dixon was sentenced to the presumptive thirty years. For the second count, the trial court enhanced the presumptive sentence by a mere four years. Dixon also pleaded guilty to robbery as a Class B felony which has a presumptive term of ten years with a minimum sentence of six years and a maximum of twenty years. See Ind. Code § 35-50-2-5. Here, Dixon was sentenced to the presumptive sentence for the offense of robbery. Additionally, he was convicted of the offense of resisting law enforcement as a Class D felony. The presumptive sentence for a Class D felony is one and one-half years, with the maximum sentence being three years and the minimum sentence being six months. See Ind. Code § 35-50-2-7. For this offense, the trial court sentenced Dixon to an enhanced term of two and one-half years. In summary, Dixon received two presumptive sentences and two minimally enhanced sentences for his four offenses. Considering the nature of these offenses, we find Dixon’s sentence to be appropriate.
The “character of the offender” refers to the general sentencing considerations under Ind. Code § 35-38-1-7.1(a), the balancing of the aggravating and mitigating factors under Ind. Code § 35-38-1-7.1(b) and (c), and the other factors left to the trial court’s discretion under Ind. Code § 35-38-1-7.1(d). Id. Pursuant to Ind. Code § 35-38-1-7.1(a), the trial court must consider, among other things, the nature and circumstances of the crime committed, whether the victim was less than twelve years of age, the defendant’s criminal history and character, and the risk that the defendant will commit another crime. Here, the nature and circumstances of the crime are that Dixon entered a home and kidnapped a mother and her son, who was less than twelve years of age. Armed with a gun, he ordered the young boy into the trunk of the car and directed the boy’s mother to get him through the police roadblock undetected. He then left them on the side of a road and stole their car. Testimony at Dixon’s sentencing hearing revealed the emotional trauma these events caused for the young boy and his mother. As reflected by the presentence report and cited by the trial court, Dixon had a lengthy criminal history, including several felony convictions, and an active warrant from the state of Michigan. Additionally, the risk that Dixon will commit another crime is high in that he was given several opportunities at rehabilitation before committing the instant crime, and his criminal history began when he was a teenager and has continued steadily throughout his adult years. Thus, based upon the character of the offender, Dixon’s sentence is appropriate.
Furthermore, the imposition of consecutive sentences totaling seventy-six and one-half years is not excessive. Sentencing decisions rest within the discretion of the trial court, and the court may increase a sentence or impose consecutive sentences if it finds aggravating factors. Anderson v. State, 798 N.E.2d 875, 879 (Ind. Ct. App. 2003). One valid aggravator alone is enough to enhance a sentence or to impose it consecutive to another. Id. Moreover, the same factor may be used both to enhance a presumptive sentence and to justify consecutive sentences. Id.
I think I can only imagine that it will be much shorter.