One of the lawyers involved in the case wrote to me to note that the Supreme Court has granted transfer in Ryle (3/1/05) and ordered supplemental briefing on two questions, which are put as follows in the order appearing in the online docket:
In light of Blakely v. Washington, 124 S. Ct. 2531 (2004), and Smylie v. State, 823 N.E.2d 679 (Ind. 2005), are the facts that appellant (1) had been previously adjudicated a delinquent treated as a prior conviction and (2) was on probation at the time of the offense treated as derivative of Appellant's criminal history under Apprendi v. New jersey, 530 U.S. 466, 490 (2000), such that the facts need not be found by a jury before the trial court can use them to enhance Appellant's murder sentence beyond the presumptive term?
To answer these questions, both Ryle and the State have been given a whopping 7 pages or 3,200 words. If I understand the order correctly, it's blind filing for the supplemental briefs: they're to be filed at the same time with no reply permitted.
The following Indiana Blakely cases, in reverse chronological order, have treated juvenile adjudications as prior convictions:
- Paschall (4/22/05)) (nothing but juvenile adjudications support enhanced sentence; without citation to any authority)
- Hill (4/14/05) (prior adult and juvenile criminal history supported enhanced sentence; without citation to any authority)
- McCray (3/10/05) (juvenile adjudication "acknowledged" in presentence report)
- Altes (3/1/05) (dictum that finding of likely future criminal conduct may be based on prior adult or juvenile criminal history; citation to Bledsoe)
- McNew (2/25/05) (prior convictions, including juvenile adjudication for possession of marijuana exempt from Blakely; citation to Carson)
- Abney (2/15/05) (juvenile adjudications are "prior convictions"; citation to Ryle)
- Williams (12/8/04) (prior convictions, including juvenile adjudication, support enhancement; without citation to authority)
- Holden (10/13/04) ("consistent adult and juvenile criminal history" not subject to Blakely; citation to Blakely)
Links to the cases are in the sidebar. I'll get to the probation cases presently.
Disclosure: I may be involved in the preparation for the oral argument on Ryle's side. Of course, that may just mean that I come up with better reasons that the fact of a juvenile adjudication should be treated no differently from the fact of a prior conviction. At the moment, I'm not convinced. My immediate reaction is, "What part of 'conviction' don't you understand?" It seems to me that in light of the remaining uncertainties surrounding Blakely, a certain literalist approach, often applied by Blakely's author, is not out of place.
Of course, since April 25th, we are now merely dealing with pipeline cases. The one remaining decision that will affect a very large number of cases indeed concerns Blakely's retroactivity to cases on collateral review. Smylieseems to say there is none. But the question wasn't presented; and the U.S.Supreme Court has yet to speak.