We now know what the Court of Appeals, at least, thinks of the new (since April 25, 2005) advisory sentences: they are essentially unreviewable for trial court error. And that should not be surprising because, as Judge Barnes points out in Anglemyer v. State, Court of Appeals No. 43A05-0510-CR-590 (Ind. Ct. App. April 20, 2006), because trial courts can impose any statutorily authorized sentence for good reason, bad reason, or no reason at all, were an appellate court to reverse for trial court error, the sentencing judge could impose the same sentence all over again for the same good, bad, or no reason.
Recall that Judge Barnes has done some of the best Blakely work, especially in his Freeze opinion from last May, where he at least pushed the Blakely ball along to the level of Chapman harmless error analysis. (I think Blakely error is structural, but whatever it is or should be, it is not subject to state harmless error analysis--or even worse, the "with confidence" standard, to which Judge Barnes objected in his concurring opinion in Davis last October. See this previous post about Freeze.)
Since any standards that would contribute to uniformity of sentences has been removed from the sentencing statutes, preserving some degree of uniformity is going to be the job of the appellate courts. ("Indeed, the extensive discretion afforded to trial courts under the new sentencing system will make even more imperative our review of sentences pursuant to Indiana Appellate Rule 7(B)." Slip op. at 8.)
Judge Barnes clearly does not think the current state of affairs is a fine thing. Here is his footnote 4:
In her dissenting opinion in Blakely, Justice O’Connor predicted this result and observed, “The ‘effect’ of today’s decision will be greater judicial discretion and less uniformity in sentencing.” Blakely, 542 U.S. at 314 (O’Connor, J., dissenting). She also urged that the practical consequences of the decision might be “disastrous.” Id. at 314. Justice O’Connor appears to have been correct in both observations.
So all that's left is raw appellate review of sentences under Indiana Appellate Rule 7(B). To facilitate that review, Judge Barnes encourages trial judges to make detailed sentencing statements. But at least for the time being, until the Indiana Supreme Court weighs in on the new regime, if I were a reversal-averse trial judge, I'd keep mum.
It will be interesting to see what the Supreme Court has to say--I can't imagine it being much different. And the appellate courts have to be careful, perhaps, not to create a system of appellate review that would be subject to Blakely.