If I read this page correctly, Senate Bill 96 as amended with its Booker fix has passed both the House and Senate unanimously. According to this page on Indiana Daily Insight, the bill has been sitting on the Governor's desk since April 19th, and he has until April 26th to do something.
I find it quite unbelievable that the bill would have passed both houses unanimously. I wonder what other bills have passed unanimously--it would be nice to know what company the Booker fix keeps.
Here is the link to the engrossed act, in the form in which it sits, I presume, on the Governor's desk.
There is some very bad, i.e., confusing and possibly contradictory, drafting in some of the details. But the major thrust of the legislation is pretty clear. Out with fixed, presumptive sentences, and in with "advisory sentences," that are not even all that advisory. There is no statutory requirement that courts consider them.
What is more, the legislation makes it clear that judges may sentence up to the maximum for the class of felony without regard to the presence or absence of aggravating circumstances. Under the new § 35-38-1-7.1(d):
A court may impose any sentence that is:
(1) authorized by statute; and
(2) permissible under the Constitution of the State of Indiana; regardless of the presence or absence of aggravating circumstances or mitigating circumstances.
(Emphasis added). (Interesting that (2) does not mention the United States Constitution.)
I have to think this is going to mean the Indiana Supreme Court's Rules Committee is going to have to get busy in a hurry to try to come up with a response about the way the appellate courts are going to review sentences under the new regime. At the moment, Indiana Appellate Rule 7(b) governs the review of sentences by the Supreme Court and Court of Appeals:
The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.
Review under this rule has usually been based on a (deferential) reassessment of aggravating and mitigating circumstances already found by a trial court.
In the new regime, however, trial judges "may voluntarily" consider the new advisory sentence, but they do not have to. And it would appear that trial courts will be able to impose maximum sentences for good reason, bad reason, or no reason at all. And if any authorized sentence is permissible without regard to aggravating or mitigating circumstances, I cannot see any requirement arising under the statute that trial courts state the reasons for choosing a particular sentence.
Unless the appellate courts want to get into reviewing sentences de novo, which I am almost certain they do not, Appellate Rule 7(b) is going to have to change. Given the unrestricted breadth of discretion the legislation gives to judges in sentencing, I am not sure how the Indiana Supreme Court is going to come up with a requirement that courts give reasons for the sentences they impose. I guess it could say something like the Indiana Constitution requires that trial courts give reasons, because the appellate courts' constitutional power to review and revise sentences cannot be properly exercised without them.
It is not a one way street either, necessarily. Appellate Rule 7(a) prohibits the State from initiating an appeal of a sentence, though it may cross-appeal. Shouldn't the State be able to appeal sentences that are unreasonably low in a regime of statutorily unfettered judicial discretion?
Recall in Smylie, in considering which remedy to choose, Chief Justice Shepard wrote for the court:
In excising only the minimal portions of the existing statute necessary to comply with Blakely, we are much influenced by the fact that the overarching theme of Indiana’s 1977 sentencing reform was a legislative decision to abandon indeterminate sentencing in favor of fixed and predictable penalties. The 1977 act assigned to judges the task of imposing penalties stated as a fixed term of years and created a structure for setting those penalties that is far more definitive than the scheme it replaced.
It would seem that the 2005 General Assembly has come to a unanimously opposite decision.