Monday, April 04, 2005

McGinity: What can we say with confidence?

I need to go back to basics, i.e., reporting on the Blakely cases as they come out. Today produced McGinity v. State, Court of Appeals No. 34A02-0404-CR-345 (Ind. Ct. App. April 4, 2004). The Court reversed McGinity's sentence under Blakely and Smylie.

The aggravating circumstances found by the trial court were: "(1) the imposition of a reduced or suspended sentence would depreciate the seriousness of the crime; (2) lack of remorse; and (3) the nature and circumstances of the crime."

The mitigating circumstances found by the trial court were: "(1) that McGinity has no known delinquent or criminal convictions, and (2) McGinity’s character and attitude." (Footnote omitted.)

There is much that is interesting about this case, but what caught my eye as something new was a footnote in which the Court of Appeals said: "In light of our disposition, we do not reach McGinity’s second issue of whether his sentence was inappropriate under Indiana Appellate Rule 7(B)." Recall that in Merlington, Francis, and Ruiz, it that the Supreme Court exercised its power to review and revise sentences to impose, on its own, presumptives. In that way, the Supreme Court appeared to avoid any Blakely problem. (Previous posts about these three cases here and here.)

The Supreme Court also appears to have taken the same approach in Payne, the unpublished decision in which it granted transfer for Blakely reasons and remanded the case to the trial court to impose consecutive presumptive sentences. (Previous post here.)

But in this case, the Court of Appeals appears to have preferred reversing.

As long as the mention of Payne is fresh, McGinity is also interesting in light of the Supreme Court's transfer order in Payne. As set out in this other previous post about Payne, one of the aggravating circumstances was "the nature and circumstances of the crime." The Supreme Court's transfer order certainly implied that "the nature and circumstances of the crime" is "unlikely" to make it past a Blakely challenge.

In McGinity, the Court of Appeals finds that McGinity admitted to the nature and circumstances of the crime at his guilty plea and sentencing hearings:

McGinity admitted in his testimony at the sentencing hearing that he abruptly left the scene of the crime in his car without checking on the condition of the victim, id. at 31, and that he had not apologized or otherwise expressed feelings of sorrow or remorse to the victim’s family. Id. at 34. From the record, it is apparent that McGinity also admitted to the fact that he did not initially stop when the police were trying to stop him after he fled from the scene in that McGinity stipulated to the admission of and admitted to the facts as stated in the Probable Cause Affidavit as the factual basis for his guilty plea. The Probable Cause Affidavit explained that McGinity did not stop his vehicle when the first patrol car activated its lights and attempted to initiate a traffic stop; rather, McGinity’s car did not stop until a second patrol car, assisting with the traffic stop, drove in front of McGinity’s car. See Appellant’s App. p. 15. As such, McGinity admitted to all the facts underlying the nature and circumstances aggravator. Under Blakely if a defendant admits to facts underlying an aggravator, the jury does not have to determine beyond a reasonable doubt whether that aggravator exists.

The admissions do not, of course, take care of a number of things. First, McGinity could not have been advised about the effect of his admissions under Blakely. Second, and more importantly, McGinity was never charged with the aggravating circumstance, so he could not have had any notice of the aggravating circumstances before he made his admissions. ("The nature and circumstances of the crime" is a statutory consideration, but it is not a statutory aggravating circumstance, so there remains the question of whether its use amounts to the prohibited creation of a common law crime.) And, to the extent that the court's probation department investigated and "charged" the aggravating circumstances, McGinity's admissions do not take care of the fact that the court, through its probation department, acted as a second prosecutor.

Perhaps McGinity will be able to make all of these objections when he goes back for resentencing.

The truly distressing thing about McGinity, however, is that it now provides yet a third standard by which the Court of Appeals assesses Blakely error. The first and, in my view, correct standard is Chapman harmless error analysis as set out in Holden: in order to affirm a sentence, the court has to be able to say that there is no reasonable possibility that the Blakely error contributed to the sentence. Patrick started to follow Holden on this, and then went awry. (See this post about Patrick.)

At the other end, there is Stott, in which transfer was just denied. As I mentioned in this post, Stott's standard for affirmance appears to be whether there is any "valid" aggravating circumstance. If there is, because a single aggravating circumstance "is" sufficient to enhance a sentence, the Court of Appeals will affirm. (People laughed at President Clinton's deposition testimony. But it is remarkable how often much depends on what the meaning of "is" is.)

McGinity now gives us a third, intermediate approach: the court asks whether it "can say with confidence" that any "valid" aggravating circumstances would have resulted in the same sentence. If it can, then the court affirms.

And a final word about why Chapman provides the correct standard by which to assess Blakely error in the state courts. In Smylie, the Indiana Supreme Court did not say that it would review unpreserved Blakely error as if it were Indiana "fundamental error" and so look at the fundamental fairness of the sentence vel non. Had Smylie taken the fundamental error route, then something less than Chapman might be appropriate, as with the Seventh Circuit's (controversial) plain error approach as set out in Paladino.

But Smylie says, as I read it, to treat Blakely error as if it had been preserved and to review it in the normal way. The normal way to review Sixth or Fourteenth Amendment error is Chapman harmless error analysis.

One can only hope the Supreme Court will take care of this when it issues its transfer opinion in Patrick. (And by "take care of this," I almost mean, simply, pick one approach, whatever it is. Almost.)

For the time being, though, we have judges taking opposite positions in unpublished and published decisions, and now three ways to assess Blakely error.

So a client comes to me and wants to appeal his sentence because of Blakely error. What do I say?

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