It always seems I'm out when the big cases hit. The Indiana Supreme Court issued three Blakely opinions today, all per curiam: Patrick and Aguilar, which we knew about, because they were published decisions from the Court of Appeals; and Nesbitt, a case that's been running under my radar, at least, because it was unpublished. (I wonder how many of those there are.)
The short of it is: 1) In Patrick, the Supreme Court said that the State could opt for a sentencing hearing to try the aggravators--the Court of Appeals had said no jury trial; 2) In Aguilar, as I think I said I suspected, Aguilar did not challenge his sentence until rehearing after Blakelyhad been decided; and the Supreme Court said he had forfeited the claim; and 3) Nesbitt is similar, except that the Court of Appeals had remanded for Blakely reasons sua sponte; and the Supreme Court said the Blakely claims had been forfeited.
I'll try to get links and some commentary up tomorrow. For the time being, the cases can be found temporarily (until tomorrow's cases tomorrow afternoon) at this link. They are, at first glance, not all that interesting, except as a demonstration of the court's seriousness about Smylie's highly problematic, if not outright suspect, forfeiture rule. There's still no authority but Smylie's say-so for jury trials of aggravators--and no comment on the double jeopardy or common law crime problems that may arise from treating aggravators as elements.
But I repeat myself.
It's been a suppressing day.