Yet another grant of transfer escaped my notice, and I am hoping, now that I have ditched Acrobat Reader 7 for my trusty Acrobat 5, page skipping will be something I can only look back on. In addition to granting transfer in Campbell, Payne, and Aguilar, and denying transfer in Strong, the Supreme Court denied cross-petitions to transfer in Stott (1/5/05), with Justice Boehm voting to grant transfer.
Stott was a case in which the Court relied on Strong to defeat the State's Blakely waiver argument, on the one hand, but on the other affirmed Stott's enhanced sentence, based in part on an unspecified criminal history. The aggravating circumstances other than the unspecified criminal history were pretty clearly subject to Blakely: "the nature and circumstances of the crime as expressed by the fact that there were multiple victims, that Stott was in a position of trust, and that the molestations had a traumatic effect on the children."
I know from Stott's lawyer that the unspecified criminal history consisted of "just a few misdemeanors in decades of adulthood." So can it be said that the Blakely error, even in light of the criminal history, was harmless beyond a reasonable doubt? That is not the question the Court of Appeals answers in Stott:
Stott contends that because of the absence of the second mitigator the trial court might not enter the same sentence. However, we hold that the prior criminal history aggravator is sufficient to uphold an enhanced sentence in this case. An enhanced sentence may be imposed when the only aggravating circumstance is the defendant’s prior criminal history. Miles v. State, 777 N.E.2d 767, 773 (Ind. Ct. App. 2002).
In Miles, the case relied upon in this passage, the Court of Appeals affirmed a sentence over a state law challenge that the trial court had improperly ignored various mitigating circumstances. In addition to criminal history, there were a number of other aggravating circumstances found by the trial court.
The sentence from Miles apparently relied upon by Stott panel is this: "The trial court could have enhanced Miles’ sentence on his prior criminal history alone." (Citation omitted.) Yes, well, where there's an alleged state law sentencing error, that may be sufficient and even, sadly, correct analysis. (In fact, if you trace the cases back from Miles, the original case cited for this proposition says no such thing. This happens all the time.)
Chapman harmless error analysis looks quite a bit different and was stated and applied correctly in Holden. The court has to ask whether there is any reasonable probabability that the error contributed to the sentence, not whether the valid aggravating circumstances could support the sentence if the aggravating circumstances barred by Blakely are set aside.
Transfer was also denied in Holden some time ago. So now we have two certified opinions from the Court of Appeals performing entirely different forms of error analysis. I guess trial courts and even the Court of Appeals will now be able to pick at will which form it prefers for which case.
It is a pity that the Supreme Court did not do something--for example, grant transfer and summarily remand to the Court of Appeals for reconsideration in light of Chapman and maybe even Holden. Perhaps the Supreme Court has another case up its sleeve in which it is planning on disapproving Stott. That doesn't help Mr. Stott very much.
Now that I have been mucking about for a while in unpublished opinions, the transfer lists, and the online dockets, I'm going to have to take a step back to see if anything more general can be known or surmised about where things stand. And I still have my trench report from Friday to write. On that, for now, I'll say at least that the judge asked me twice on the record if I wasn't committing malpractice by raising Blakely as a basis to withdraw my client's plea.
What a week. And I haven't even gotten to the two new Blakely cases that came down this week or the one non-BlakleyBlakely case.