Friday, August 04, 2006

Combs: Blakely Constrains Appellate Review?

Keith Combs v. State (Ind. Ct. App. August 4, 2006), out today, offers an interesting Blakely wrinkle. Over a dissent by Judge Vaidik, Judges Mathias and Robb conclude that appellate review of sentences under Appellate Rule 7(B) is subject to Blakely. I think Judge Vaidik has the better of this particular argument; and if the State seeks transfer to the Indiana Supreme Court, my guess is it will get it.

There is no direct Blakely challenge apparent in the case. The appeal of the sentence appears to request pure appellate review / revision only.

The majority says something quite interesting going into its review of Combs' sentence:

We believe that as a matter of fundamental fairness and under the pertinent caselaw as it currently stands, even appellate review of sentences under Appellate Rule 7(B) is constrained by Blakely. See Williams v. State, 827 N.E.2d 1127, 1128 (Ind. 2005) (“Or we could alterthe sentences ourselves within the bounds of Blakely using our review and revise power.”).

I do not believe anything in Williams says that Blakely acts as a restraint on independent appellate review of a sentence that is unobjectionable on statutory or constitutional grounds. The sentence imposed by the trial court in Williams did violate Blakely, and so the Supreme Court, in figuring out what sentence to impose itself, felt constrained by Blakely--so it imposed consecutive sentences, avoiding Blakely altogether, giving Williams a whole half year benefit for his appeal.

This is pretty much the point Judge Vaidik makes in footnote 14 of her dissent:
Had Combs’ sentence not been statutorily proper or had his sentence violated Blakely (such as if all of the aggravators were improper under Blakely), we also could have exercised our constitutional authority to revise his sentence rather than remand to the trial court. See Neff v. State,849 N.E.2d 556, 562 (Ind. 2006); Williams v. State, 827 N.E.2d 1127, 1128 (Ind. 2005). In this instance only, the reviews would be co-extensive.
(Emphasis in the original.) (I think only one aggravator need violate Blakely before one is at least into harmless error analysis and,therefore, probably the option of appellate resentencing subject to Blakely.)

That this option exists was at least called into question by Justice Boehm's dissent almost 10 years ago now in a death penalty case, Lambert v. State, 675 N.E.2d 1060 (Ind. 1996). Justice Boehm raised the very interesting question whether the power to review and revise sentences extends to invalid sentences. Here is a snippet from his dissent:

In this case the trial court sentenced the defendant after procedural error that requires setting that sentence aside. . . . Article VII, § 4 of the Constitution of our State gives this Court "the power . . . to review and revise the sentence imposed" in any criminal appeal. This provision, in my view, doesnot suggest that we should initiate sentences. Rather it presupposes a validly imposed sentence that we may review and revise.
Id. at 1066-67 (Boehm, J., dissenting). Justice Boehm lost the debate in Lambert; and so today we have cases like Williams, where despite the Blakely errors found, the appellate courts just do theresentencing themselves.

But to get back to Combs. I do wonder what the Combs majority has in mind when it says that "fundamental fairness" requires the application of Blakely to independent appellate review of otherwise unobjectionable sentences. In sentencing Combs, the trial court did consider any number of aggravators offensive to Blakely. So maybe the court merely meant that it was giving Combs a Blakely appeal despite the failure to raise it in those terms.

It's an interesting idea that I wish the court had spun out so we wouldn't have to guess. It's especially unfortunate we don't have an explication in light of the meat of Judge Vaidik's dissent which, unassailably in my view, says:

Blakely is concerned with the enhancement of a defendant’s sentence based on facts not proven beyond a reasonable doubt. 542 U.S. 296, 303-04 (2004). Under Appellate Rule 7(B), Indiana appellate courts may not increase a defendant’s sentence. See Ind. Appellate Rule 7(A) (“A defendant in a Criminal Appeal may appeal the defendant’s sentence.”) (emphasis added). As such, Appellate Rule 7(B) does not implicate Blakely. Therefore, when analyzing the nature of the offense and the character of the offender under Appellate Rule 7(B), appellate courts may rely upon facts that were not proven beyond a reasonable doubt because there is simply no danger to the defendant that his sentence will be increased. Indeed, Appellate Rule 7(B) is used as a vehicle to reduce a defendant’s sentence.

Slip op. at 21 (Vaidik, J., dissenting).

Keep an eye on Marcia Oddi's transfer lists at the Indiana LawBlog. I'm going off to look at today's now.

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