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.

Frye: Controlling Precedent:--Do We Care?

Surely one meaning of "wrong" when speaking of appellate decisions has to be that a decision is contrary to controlling precedent. (And I still don't know how the Missouri Supreme Court had the chutzpah to buck the U.S. Supreme Court in Roper. And who'd have thought that SCOTUS would affirm?!!?)

Back on July 18th, the Court of Appeals came out with Frye v. State. It's a Crawford case decided a month after the U.S. Supreme Court, in Hammon v. Indiana--the companion case to Davis v. Washington--, reversed the Indiana Supreme Court's decision in Hammon v. State.

The Court of Appeals does something in Frye that I don't think I've ever seen before: it goes through the Indiana Supreme Court's Hammon analysis, using it for precisely the proposition that SCOTUS rejected and reversed on 29 days previously. And I do not know whether it makes it better or worse that the Court of Appeals drops a footnote saying that it is aware of the SCOTUS decision, but the testimony at issue, it thinks, is non-testimonial within the meaning of the SCOTUS decision.

You really have to see this to believe it:

Frye argues that the case of Crawford v. Washington, 541 U.S. 16 (2004), prevents the admission of certain hearsay evidence if it is testimonial because it violates the confrontation clause of the federal Constitution. A testimonial statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings. Wallace v. State, 836 N.E. 2d 985, 995 (Ind. Ct. App. 2005). In evaluating whether a statement is for purposes of future legal utility, the motive of the questioner, more than that of the declarant, is determinative, but if either is principally motivated by a desire to preserve the statement it is sufficient to render the statement testimonial. Hammon, 829 N.E.2d at 456. The Indiana Supreme Court in Hammon, quotes from the Court of Appeals opinion of the same case, Hammon v. State, 809 N.E.2d 945, 952 (Ind. Ct. App. 2004):

[T]hat the common denominator underlying the Supreme Court’s [the Crawford opinion] discussion of what constitutes a testimonial statement is the official and formal quality of such a statement. Accordingly, the court reasoned that the Supreme Court limited its holding in Crawford to police interrogation, which carries with it a connotation of an at least slightly adversarial setting. The Court of Appeals held that when police arrive at the scene of an incident in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not testimonial. This conclusion has been cited for the proposition that preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an ‘interrogation. Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police interrogation as that term is used in Crawford.

(Internal citations and quotation marks omitted.)

We are of the opinion that the foregoing quote is equally applicable to the fact situation in this appeal and that Chastain’s statement to Officer Harper was not testimonial.

Slip op. at 6-7.

Think of what the correct citation to the Indiana Supreme Court's Hammon should look like:

Hammon v. State . . . rev'd on same grounds by Hammon v. Indiana . . . .

The online docket for Frye provides, perhaps, some basis to infer an explanation. The briefing in Frye was completed in March. One might guess that the Court of Appeals knew that SCOTUS had granted cert. in Hammon, wrote an opinion anyway, and then sat on it until the SCOTUS decision. The path of least work then, after SCOTUS reversed, was simply to drop the footnote to say that the SCOTUS decision did not make any difference in the case.

Maybe it did and maybe it didn't. The facts are written to fit with the Indiana Supreme Court's (rejected) Hammon analysis, which practically equates an excited utterance with non-testimonial statements:

Officer Harper testified that a startling event occurred when an armed Frye invaded Royal’s residence, that Chastain was distraught, crying, and hysterical, and her statement related to the event, which was occurring or had occurred immediately beforehand.

Slip op. at 5. To apply the SCOTUS Hammon analysis, one would have to know what Chastain actually said. Was she asking for help or telling Officer Harper what happened? Or both?

How very strange.

Recuenco: The Bad News & The Good News

Recuenco is here . . . here. The Court holds 7-2 that Blakely error is subject to Chapman harmless error analysis. That's the bad news that I have a hard time understanding for all the reasons set out in Justice Ginsburg's quite detailed and powerful dissent.

The really good news is the forcefulness with which Justice Thomas's opinion restates that sentencing factors, other than the fact of a prior conviction, are to be treated just like traditional elements. An issue that has yet to be litigated in Indiana, at least, as far as I know, is whether the use of sentencing factors not specifically enumerated by statute, amounts to the forbidden creation of common law crimes. I think Recuenco strongly suggests that it is--or was, under the old sentencing regime.

After reading theThomas and Ginsburg opinions, I wonder whether Recuenco raised the correct issue on appeal. Blakely's Sixth Amendment aspect may be subject to harmless error analysis--obviously, after Recuenco it is. Under the lens of a Sixth Amendment jury claim, the facts of Recuenco may indeed be indistinguishable from Neder, as Justice Thomas says.

But what about Blakely's Fifth / Fourteenth Amendment notice aspect? It is absolutely clear that Recuenco, unlike Neder, had no notice in any form, and certainly not in the charge, that he would be subject to the mandatory firearm enhancement. (Again, see Justice Ginsburg's amazingly complete and compelling rendition of the facts.) Would the result be different if someone in Recuenco's position claimed lack of notice in violation of the Due Process Clause? If sentencing factors are to be treated exactly the same as traditional elements, I think it would have to be.

I do have a question about Justice Ginsburg's dissent that maybe someone can answer. She says that Recuenco's enhanced sentence was obtained in violation of the Fifth and Sixth Amendments made applicable to the States by the Fourteenth Amendment. Which provision of the Fifth Amendment does she have in mind? The Fourteenth Amendment has its own Due Process Clause. Here's the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The indictment requirement does not apply to the States. Why does she need the Fifth Amendment at all? Is it because, in fact, there is a hidden double jeopardy claim here: that Recuenco, having been convicted of a lesser offense without the enhancement, was then "convicted" of a greater offense that included the enhancement?

More on Johnson in Colorado & Blakely Retroactivity

As I mentioned in this post, on June 14th the Colorado Supreme Court held oral argument in Johnson, the case in which the Colorado Court of Appeals held that Blakely shall be applied retroactively to Apprendi in Colorado.

The argument is up--it took a couple of days--and can be heard via this link with Windows Media Player--or anything else that plays WMA files. It lasts half an hour. It provides a (distinctly minor league) preview of Burton, the Blakely retroactivity case the Supreme Court has decided to hear.

The thing I found most interesting about the argument was the State's and a justice or two's heavy reliance on holdings that Crawford is not retroactive. Given that SCOTUS has taken a Crawford retroactivity case, that seemed a risky strategy.

It will be interesting to see if the Colorado Supreme Court waits until after Burton to decide Johnson. And if they don't, what happens with Johnson will be worth watching because, as discussed in this post, I don't believe that state courts are bound in their retroactivity analysis by SCOTUS decisions. And this is true even if, as Colorado and Indiana, state retroactivity analysis mirrors Teague and its progeny in almost all relevant detail.

The Johnson argument might make a nice, brief distraction before the opinions begin to rain down this week from all quarters as many courts end their terms. I'm putting out my rain barrels.

Companion Case Day at the Indiana Supreme Court--Including Big Sentencing News

After what must have been a busy day yesterday working on the Toll Road case, the Indiana Supreme Court has handed down five opinions today, depending on how you count.

Three sentencing opinions by Justice Rucker are companion cases. The court finally does in the numerous decisions of the Court of Appeals blocking appeals of sentences where there was a plea agreement calling for anything but open sentencing. (Tumulty (Ind. 1996) rears its ugly head yet again--the case that (finally) decided that one may not appeal a conviction from a guilty plea--although, as we know from Collins, one must appeal a sentence and not wait for post-conviction proceedings.)

Two opinions by Justice Dickson are companion cases saying that that municipalities do not have immunity from being sued over accidents resulting from high-speed chases.

Here are the links:

Jeffrey Patrick, City of Gary & City of Gary Police Department v. Richard Miresso

45S03-0505-CV-223

45D01-0204-CT-101

06/14/06

City of Indianapolis and Indianapolis Police Department v. Richard Garman

49S00-0602-CV-55

49D10-0006-CT-852

06/14/06

Roger D. Childress v. State of Indiana and Gary L. Carroll v. State of Indiana

61S01-0510-CR-484 & 61S04-0510-CR-485

61C01-0402-FB-56, 61C01-0303-FB-55, 61C01-0204-FD-59 & 61C01-0306-FC-104

06/14/06

Jerry Reyes v. State of Indiana

49S04-0510-CR-475

49G04-0207-MR-193968

06/14/06

David Weiss v. State of Indiana

17S03-0510-CR-487

17D01-0309-FA-2

06/14/06

(Boy, that was pretty nifty. I never tried just pasting the links from the opinion site over here.)

From a quick read of Justice Rucker's sentencing cases, it is absolutely clear that one may ask the appellate courts to independently review a sentence imposed where a plea agreement left a judge any discretion. What is not clear--and I need to read the cases more carefully--is whether one may also raise claims of sentencing error. They're not the same thing.

Under the new sentencing regime, however, sentencing error hardly matters. See this post and Judge Barnes' opinion in Anglemyer.

The blog topics mount.

Oral Argument in Colorado: Johnson & Blakely Retroactivity

At 10:00 a.m. MDT, the Colorado Supreme Court is going to hear oral argument in Johnson, the case in which the Colorado Court of Appeals decided that Blakely is retroactive to Apprendi.

The Colorado Supreme Court oral argument site is here. I do not know if they do live webcasts. The links for yesterday's oral arguments at the court are already up, so even if they don't, it appears the archive will be available quickly.

Toll Road Case Oral Argument (Updated)

I missed a good bit of the argument. In what I did see, however, the justices did not seem very sympathetic to the folks challenging the sale of the Toll Road.

Here is a direct link to the argument. (RealPlayer required.) The archived version is not yet available. Sometimes it takes some days. I hope they will be quick about getting it up in this case.

[Update 5:15pm: The link above is live, and has been since 3:00 p.m., as Marcia Oddi at the Indiana Law Blog has written in a comment below. I guess I couldn't get on at 4:00 p.m., not because the archive wasn't there, but because I was in line behind the rest of the world.]

Toll Road Case: Supreme Court Oral Argument at 1:30pm EDT

If money is measure of importance, then the Toll Road Case is the most important case to come before the Indiana courts in living memory. As Carl Sagan would have said, "Billions and billions."

Oral argument is set for 1:30pm--an hour from now. With RealPlayer, you should be able to watch the argument live via the link at this site. The case name is Steve Bonney v. Indiana Finance Authority. The link to the argument is grayed out at the moment. I am assuming it will become active shortly before the argument. (I have my autorefresh set for the page.)

For truly fabulous coverage of the last minute maneuvering in the case--Justice Dickson's recusal and the appellants' request in light of the recusal for a remand to the Court of Appeals--go see the Indiana Law Blog. The most recent post is here.

I was going to post again about Gutermuth. But there are much bigger fish to fry.

Gutermuth: The Blakely WayBack Machine

After reading some Burton materials, I was going to offer a brief post on the variety of things the lawyering and judging crews mean when they say a case is "retroactive." And then Judges Crone, Friedlander, and May of the Indiana Court of Appeals throw out a timely case with a substantial wrinkle in the typology. The case is Gutermuth v. State (Ind. Ct. App. June 7, 2006). It's a 34-page opus. And an important one. It could be hugely important, actually.

Here's the question: Gutermuth was sentenced in 1997. He pled guilty to three counts of child molesting. That's three years before Apprendi and nine years before Blakely. Does he get the benefit of Blakely?

Here's the answer: Yes.

Here's the question: How?


Three Kinds of Retroactivity

1. There is Griffith v. Kentucky "retroactivity." When a new case is decided, any case pending on direct review at the time gets the analysis of the new case. In the case of criminal appeals, this is pretty much a one-way door. If the law has changed for the worse while their case is pending on direct appeal, a criminal appellant is, in most circumstances that I can thinks of, not going to be saddled with the new worse law. (Which is why it is, to this day, so scandalous that Teague was Teagued.) Gutermuth involves quite a twist on Griffith "retroactivity."

2. Then there is the kind of "retroactivity" that seems to be at issue in Burton. Burton's direct appeal became final between Apprendi and Blakely. Burton's main argument, if I am not mischaracterizing it, is that Blakely changed nothing, and therefore he should get the benefit of Apprendi. This second kind of "retroactivity" is not retroactivity at all, in fact. Call it "As our precedents make clear" "retroactivity."

Because Burton is a habeas appeal under the AEDPA, it could be hilarious, however gratifying, to see the Court say that any pre-Blakely application of Apprendi not in conformance with Blakely was unreasonable. Let's see. That would include everyone for about four years. Except Kansas, of course.

3. Then there is Teague retroactivity, which is the only kind, it seems to me, that deserves the name. Every case, however final, rises from the dead to live again in the light of the new case. Call it "Lazarus Retroactivity." I thought that Winship was the last case the Supreme Court gave full retroactivity to. But I believe I saw there was one in the 80's. I do not believe there has been one since Teague was decided in 1989.

Some Background on Indiana Bad Practices and Gutermuth

For years, until relatively recently, it was the practice of almost all Indiana trial courts to make a bollocks of guilty plea hearings. The courts would tell defendants that by pleading guilty they were waiving their right to appeal their convictions. The Indiana Supreme Court has said that you may not appeal a conviction from a guilty plea. So this advisement should not have been much of a problem. Any later attack on the conviction simply had to be by way of post-conviction relief.

Unfortunately, the Indiana Supreme Court said quite long ago that even from a guilty plea you may not wait for post-conviction proceedings to attack a sentence. If you want to attack a sentence, it has to be by direct appeal.

But the trial courts did not tell people this. I am not sure why the lawyers involved said nothing--defense or prosecution. It's not as if the law was unclear. But, in any event, there was a bunch of folks who were lead off from their guilty pleas believing there was nothing left to do, because they had not been advised of their right, indeed the necessity, of appealing their sentences.


Gutermuth I and Collins

Having pled guilty in 1997, in 2000, Gutermuth filed for post-conviction relief.

The Court of Appeals affirmed the denial of post-conviction relief in 2003. But the Court of Appeals rejected the State's argument that the sentencing claims had been forfeited because Gutermuth had not appealed them directly after his conviction.

Enter the Indiana Supreme Court in November 2004. The court vacated the Court of Appeals' Gutermuth decision and said that yes, the sentence had to have been appealed directly and could not be attacked in post-conviction proceedings. (The Supreme Court's Gutermuth decision is here . The companion case, Collins, with most of the discussion, is here.)

But that's not the end of the matter. The Supreme Court in both Collins and Gutermuth said that in light of the bad advisements, the two might well be able to pursue what's called here a "belated appeal." A belated appeal, if granted, is just like any other direct appeal.


Gutermuth Reloaded

So, in March of 2005, a little more than 8 months after Blakely, Gutermuth requested and received permission to file a belated appeal. In his appeal, Gutermuth attacked his sentence with Blakely. And yesterday the Court of Appeals said, sure enough, a belated appeal is like any other direct appeal, and Gutermuth got review of his Blakely claims.

To be sure, Judge Crone, writing for the panel, did not sound happy about the result:

At this point, it bears mentioning that those familiar with Indiana’s criminal justice system are aware that there are likely hundreds, if not thousands, of criminal defendants in a situation similar to Gutermuth’s: namely, those who pled guilty and were sentenced prior to both Collins and Blakely and were not advised of their right to challenge their sentence in a direct appeal. Pursuant to Smylie and Griffith, many of those defendants are now entitled to retroactive application of Blakely, and many of them have pursued (or will pursue) a belated appeal and challenge their enhanced sentences “on the basis of a rule that was not the law when they were convicted [and] could not have been anticipated when they were sentenced[.]” Powell v. State, 574 N.E.2d 331, 334 (Ind. Ct. App. 1991). To put it mildly, the retroactive application of Blakely is likely to “have a highly detrimental effect on the administration of justice.” Id.

Slip op. at 18-19. (Some citations, all footnotes omitted).

The conclusion that Gutermuth gets to raise Blakely claims seemed obvious to me. As I said, belated appeals are just like any old direct appeal.

I was shamed to read in the opinion, however, that two other panels of the Court of Appeals have come to an opposite conclusion in cases that completely escaped my notice. The first is / was Robbins v. State (Ind. Ct. App. 12/28/05). The relevant passage from Robbins appears at page 14 of Gutermuth:

As to whether Robbins’s case was “final” when Blakely was decided, we note that a timely notice of appeal is filed within thirty days after the entry of a final judgment. Ind. Appellate Rule 9(A)(1). While Robbins still had the option of pursuing a belated appeal at the time that the Blakely rule was announced, it is our conclusion that because his right to pursue a timely appeal had lapsed over four years prior to Blakely, his case was final for the purpose of retroactivity. Accordingly, we conclude that Robbins is not entitled to raise a Blakely challenge because Blakely does not apply retroactively to Robbins’s case.

Interestingly, Judge Friedlander concurred in both Gutermuth and Robbins.

[Correction (6/9/06): Thanks to a reader more alert than I, apparently, it turns out that Judge Friedlander in fact dissented, adhering to his Robbins view and vote. I must have simply imagined seeing a unanimous vote line. This is especially bizarre, because Judge May also wrote an opinion labeled "concurring," but she only concurs in result. More about Gutermuth in the next post.]

The second case, Hull v. State (Ind. Ct. App. 12/30/05), says the same thing as Robbins. There's a long quote from it on page 15 of Gutermuth. Not suprisingly, Judge Baker wrote Robbins and concurred in Hull two days later.

I cannot believe I missed these two. Had I caught them myself, I'd have added them to the sidebar under Blatant Indecencies.

Transfer was not sought in either case, and I really do wonder why. (Both Robbins and Hull had private lawyers. Maybe the families had had enough.) I don't know if there are any similar cases from the nether world of the Court of Appeals unpublished decisions that might be on the Supreme Court's radar.

But really. To take so literally the language "pending on direct review" from Griffith, as well as some other language, and to exclude people who are granted belated appeals after Blakely was decided? The rule is: belated appeals, once granted, are like any other direct appeal. And courts simply don't carve out some days, months, or years of law in deciding direct appeals.

Where was Judge Baker when it was time to take the "prior conviction" exception literally with respect to criminal history? In fact, his rehearing opinion in Bledsoe, way back at the very, very beginning, started the "criminal history exception" to Blakely in Indiana.


Signifying . . .

In the end, Gutermuth got nothing from his Blakely claims. But as Judge Crone rightly pointed out, I think, there are lots of folks out there who weren't told of their right / duty to appeal their sentences.

One obvious dam against any eventual wave of belated appeal requests would be simple denials of permission to file belated appeals.

Anyway, bully for this panel. It disagreed--and properly so--with two other panels. (Thank heavens we don't have "Circuit Precedent.") And Judge Friedlander even publicly disagreed with himself. [Note (6/9/06): see the correction above. Judge Friedlander in fact agreed with himself in a dissent.]

A day of good law as well as considerable irony, if you think about Burton's struggle just to get to Blakely to reach back to Apprendi in 2000.


A Final Question

Is this the earliest sentence to which Blakely has so far been applied?

Burton: Retroactivity on the SCOTUS Menu . . . Yummm.

The Supreme Court has gone and done it: it's granted cert. in a Blakely retroactivity case. Another one out of Washington, wouldn't you know?

The case is Burton v. Waddington out of the Ninth Circuit. (Sentencing Law & Policy has the cert. brief here. SCOTUSBlog has a brief blurb on the case here.

I have read the cert. petition and the petition in opposition quickly. There is more going on in this case than is almost possible to imagine. First, it is a habeas case. So put on your habeas beanies and put in some fresh batteries to make the propeller go whizzzz.

Second, from what I can tell from the briefs--the cert. petition in particular--the Blakely violation, if any, arises out of the imposition of three consecutive sentences, not out of any single sentence being "exceptional" under Washington law. I could be wrong about that, and maybe someone from Washington will check in with superior knowledge. (There is a reason folks are licensed one state at a time. It's not entirely protectionism of the guild variety.)

So is SCOTUS going to giving us a double whammy: retroactivity and the application of Blakely to consecutive sentences?

Or is it not going to be a retroactivity case at all, as Burton argues: just plain old Apprendi applied "as our precedents make clear"? If so, then Justice O'Connor's worry in Blakely wil have be prescient.

I am not sure I understand what all the fuss about retroactivity is in the case or all the other federal cases to have considered the matter. Am I mistaken, or is it not the rule that a SCOTUS case is not retroactive until the Court says it is? I'll have to look that up . . . for the third or fourth time now.

Because this is a habeas case, the relationship of any decision to state collateral proceedings will require careful analysis. And maybe one result will be, several and even maybe many years from now, a clearer understanding for all of the relationship between state post-conviction proceedings and federal habeas review.

Let me not leave it at vague generalities. Here is a very specific problem that could arise in Indiana. (Golly Gosh, as Justice Sullivan remarked at the beginning of the Smylie oral argument way back when, there's so much, one hardly knows where to begin.) But let's say the Supreme Court says Blakely did announce a new rule. It also says that the new rule gets full retroactivity under the second Teague exception for increased accuracy.

Because of Booker, it could do this without causing the slightest mess in the federal courts--I think. There would, of course, be a tremendous mess in the state courts for the foreseeable future. And you can bet the state courts will come up with whatever they can to limit the damage to final judgments.

But let's say it happens. So I have a client sentenced in, say, the early 90's. I file a successive post-conviction petition based on Burton. Let's say that the Indiana Court of Appeals, which has unreviewable authority to grant or deny permission to file a successive petition--we do Little Fed here, in part, at least--says no.

That would be bad for the state courts, because then, quite quickly, I take my client to federal court and get de novo review of the fed claims undecided by the state courts on the merits.

So let's say the Court of Appeals says yes. I litigate the successive petition. State court post-conviction retroactivity rules are not run by fed law. Indiana happens to do its version of Teague which is not at the moment distinguishable, I think from what SCOTUS does. But presented with Burton, the Indiana Supreme Court would be absolutely free to say that Burton is not retroactive under Indiana's version of Teague. So I lose.

The biggest problem for habeas will be that I did not lose on any federal claim, although the federal claim was lost somewhere in no-man's land.

And I have a strong feeling that if SCOTUS issues a decision in Burton that is potentially beneficial to criminal defendants, a lot of those people and their lawyers are going to find themselves in some version of procedural no-man's land--or limbo.

Different problems arise if the Supreme Court says that Blakely did not not announce a new rule. They are equally staggering, though. If Blakely did not announce a new rule, then we're back to Apprendi. So in Indiana, one simple question will be: do all of the folks going back to Apprendi get to go back?

And there is the issue that I have discussed briefly in previous posts. Even if Blakely is not retroactive in some States for some reasons, the second Teague exception almost certainly should apply to Blakely in Indiana. Before Blakely, there was no standard by which a judge had to find aggravating circumstances to impose an enhanced sentence. At most, the finding of aggravating circumstances simply had to be supported by the record.

After Blakely, aggravating circumstances had to be found beyond a reasonable doubt. That seems to me to be the kind of increased

Without even getting to the habeas aspects, what happens if the Court says Blakely applies to consecutive sentences? (The questions presented do not raise the issue. Why would the Supreme Court grant cert. on the other issues, if it is not prepared to say, "Of course Blakely applies to consecutive sentences"?) I'm not sure that there are anymore pipeline Blakely cases of any sort. Do the folks who lost, like Smylie, get to go back for more? (Smylie is long out, I believe, so he won't be going back. But there are a lot of others less fortunate.)

There is a whole raft of folks, I should think, who did not raise sentencing issues at all, because all they had were consecutive sentencing issues to raise. And they were dead on arrival after Smylie. So if they try to get relief, will or can the Indiana Supreme Court apply its utterly bizarre Blakely procedural rule for the pipeline cases that only folks who challenged their sentence on direct appeal may benefit from Blakely--now Burton?

I guess I shouldn't go too far with Blakely and consecutive sentencing in Burton, because I don't really know that Burton necessarily raises the issue. It sure looks to me like it does though.

So I will start collecting the note cards with the questions. It will be a large stack. Maybe I'll be able to track down some answers.

The Sunday Pickle

Alexander Hamilton would have loved blogging--because he loved to tell people what to do.

At least that's what Richard Brookehiser of National Review fame had to say in an appearance to plug his new book on C-SPAN 2's Afterwords. (The idea for the book is actually pretty intriguing: What would the Founders say about something like 60 current hot topics? The link to the May 27th interview is here--RealPlayer. C-SPAN 2's BookTV is the best.)

There was another fun fact of sorts from the interview. At the time Aaron Burr killed Hamilton in their 1804 duel, the law was pretty clear just about everywhere that it was murder plain and simple to kill someone in a duel. If so, why were murders by duel never prosecuted? No jury would have convicted, Brookhiser says.

Hmmm. Times have changed. Anecdotally, from the tales of the true trial lawyers I encounter, it seems to me that modern juries will convict anyone of just about anything once the prisoner is in the dock. There have, of course, been some notable, notorious, and very public exceptions. (The best lawyer I know--who also taught me just about everything I know worth knowing about lawyering--said once upon a time that if she were innocent, she'd want a bench trial; if guilty, a jury. I think I agree with her with one proviso: I'd want a bench trial if I could prove my innocence.)

I'm not going to plug Brookhiser's book for him. I haven't read it. But the interview was entertaining. And I will give his blog a link.

I don't post much about blogging itself. But it never occurred to me that blogging is about telling people what to do. I'll have to think about that.

But Alexander Hamilton as blogger. There's a concept. The Federalist Papers as blog posts. Hmmm. I guess we should be grateful that blogging wasn't then on the menu. We might today be talking about the Founding Bloggers.

Which reminds me of what my now-six-year old said a year ago or so when, to his shock, he heard that I didn't have video games when I was growing up: "Why not, Poppa? Didn't you have electricity?"

Recuenco: Convert PDF to HTML and Save Paper: 58 Pages to 8

Thanks to SCOTUSBlog and Sentencing Law & Policy, I saw that the the transcript of the Recuenco argument has become available. I read some things on a screen, but I really prefer to print things on the unused sides of all the drafts, duds, and bad copies that I seem to generate.

But the Recuenco argument is 58 pages in monotype, double spaced. That's ridiculous.

Recently I just happened to stumble upon a little service Adobe provides: web-based conversion of PDF files to HTML or text files. The PDF transcript is site is here. Just pop the address of the Recuenco transcript (here) into the form box, choose HTML or text, click on a couple of annoying radio buttons, and finally submit the thing. Quite quickly you will have an HTML version of the transcript that runs, without any additional formatting, to 29 pages. Half the original--in quite large type.

If your printer will do two pages to a page--mine will--you're down to 15 pages. And it's still quite readable.

If your printer will do two-sided printing, you're down to 8 pages from almost 60. And it's not in monotype.

A word of caution: my experience so far is that the Adobe service handles documents with footnotes very badly. At least in converting to HTML. I have not tried text conversions--yet.

I was very unhappy when the Indiana appellate courts switched publishing their opinions in HTML to PDF. Very bad for reading quickly, copying and pasting, and printing. Just awful, actually. The web is done in HTML. HTML is the true portable document format: text files with fancy codes tellling machines how to display the text files. PDF may go; text files will live forever.

There's also the relatively expensive option of WordPerfect X3--which I have tried and which imports wordprocessor generated PDF files very well.

If anyone has other solutions to PDF conversion to HTML, text, or even wordprocessor formats, please comment. I'm still looking for something simple that will handle footnotes better than the Adobe service. There is a lot of footnoted PDF out there.

So now to actually go read the argument--after the next installement for my six-year old of The Hooded Hawk Mystery--a very topical Hardy Boy book--all about smuggling illegal aliens from India with a kidnaping thrown in for good measure.

Transfer Woes: Not Judge Robb's Lucky Day.

The transfer list for this week is interesting. (Available here on the Indiana Law Blog.) Three grants in two published and one unpublished decision of the Court of Appeals.

Judge Robb was the author of all three. The other thing the opinions have in common is that they are all civil cases. I can't recall when I saw three grants of transfer in a week arising from opinions by one judge.

The two published opinions in which transfer has now been granted are:

Lambert v. Lambert (Ind. Ct. App. December 15, 2005) (The effect of imprisonment on child support obligations)

and

City of Carmel v. Steele (Ind. Ct. App. November 8, 2005) (City ordinances and annexation).

The third, unpublished decision is Holcomb v. Walter's Dimmick Petroleum, Inc., Court of Appeals No. 76A04-0410-CV-572 (Ind. Ct. App. November 8, 2005) (mem.). (No reason to include the case numbers with the linkable cases.)

In both Lambert and Holcomb, Judge Bailey concurred with Judge Robb; Judge Friedlander dissented in both. In Steele, Judge Robb was joined by both Chief Judge Kirsch and Judge May.

Looks like Judge Robb was having a tough day on November 8th last year--and another one today. At least in the two published decisions, from what I can see and guess, transfer hasn't been granted to say the cases were correctly decided.

On the other hand, it looks like a pretty good day for Judge Friedlander--two dissents that, it appears, will prevail--and one of them in an unpublished decision.

Feed Links for Indiana Appellate Decisions

For anyone who wants to get the links to new Indiana Supreme Court and Court of Appeals opinions, try dumping these two links into your feed reader.

Indiana Supreme Court Opinions

Indiana Court of Appeals Opinions

These feeds will just deliver the titles of the opinions with the links to the PDF files. (Let me know if they don't work. They've been reliable for me for a week or so now.)

There's a nifty web site out there called FeedYes at which you can make feeds for sites that have none. (I'm sure the same thing can be done for the Tax Court opinions. I just haven't done it.)

For those using Thunderbird with the RSS reader installed, adding these feeds, you can have a permanent list with links to all of the Indiana appellate decisions--and the list will be viewable either by date or case name. No more need for the courts' archives. (Hmmm . . . Now there's a thought I had not had: create feeds out of the archives as well. Have to give it a try.)

Of course, you can save yourself the muss and fuss, if you want to, simply by grabbing Marcia Oddi's Indiana Law Blog. She doesn't just give you the links, but quotes and commentary as well.

I wouldn't miss the ILB for anything, but I also like having the raw links and case names dumped as they come out into Thunderbird and GreatNews. (GreatNews may be primitive: but it's simple and portable.)

So much for my tech contribution for the day.

Anglemyer: The Post-Blakely Era Has Arrived

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.

Nerve Rest & Bloglight

Nerve rest. My great grandmother was a great believer in it. So I tried it. I gave up blogging for four months, because . . . well . . . I could not continue describing what goes on in the Indiana courts and maintain any sort of healthy equanimity.

I thought that perhaps if I stopped writing about the madness, at least I would not have to think about it when contemplating the next blog post. Of course, not to think about it at all, I would have had to stop reading the stuff and thinking about it altogether. I would have had to stop practicing, actually, because I have to read all of the nonsense to keep up.

I suppose there are the Buddhist souls out there, like Doug Berman at Sentencing Law & Policy and,closer to home, Marcia Oddi at the Indiana Law Blog, who have achieved the glorious state of pure curiosity coupled with divine indifference.

Perhaps my grandmother has made it to 98 and some because, as she says, she just wants to see what happens next. (That's really quite something for someone who has lived through two world wars and even remembers being sad on reading in her children's magazine about the death of the Czar, Czarina, and their family.)I'm not one of those Buddhist souls. I can't just say, "Oh, the court decided this today . . . la-di-da."

That's not to say that Doug Berman or Marcia Oddi don't express an occasional edge. And I think they are both brilliant at taking piles of stuff and passing it on with insightful and important context. But neither seems to get really steamed about very much. They're more interested in what's going to happen next.

I get steamed. There is an awful lot about the Indiana courts to get steamed about. Which is not to say that I have let go unnoted--I hope--the occasional outstanding opinion from an Indiana appellate court.

But in criminal and post-conviction appeals, at least, those outstanding opinions are very few in number. (So much could be remedied were the Court of Appeals' judges simply to install the correct boilerplate in their wordprocessors.) It is hard to escape the impression, actually, that they are almost accidental.

Enough of nerve rest. It's time for more nerve. In the absence of sunlight, perhaps bloglight is the best disinfectant.

Budget from the 7th: Why to kill the lawyers first . . . .

Judge Posner has written a scathing opinoin in Budget Rent-a-Car Systems, Inc. v. Consolidated Equity LLC., No. 05-3579 (7th Cir. November 4, 2005). The opinion denies appellate fees to Budget that the court had granted. Why? Because Budget wanted $4600 in fees for a 4-page jurisdictional memo citing 5 cases, the only thing Budget filed in the case. The memo supposedly took 3.3 hours of parter time and 10.4 hours of associates' time.

The "exorbitant" request for fees and costs, Posner says, amounts to an abuse of process.

The fee request had been granted originally, because Consolidated's appeal was so obviously frivolous. How can it take 14 hours of anyone's time to point out the obvious?

13.7 hours for 4 pages and 5 cases? I've done a bunch of appeals both as appellant and appellee. The rule that seems to work out for me in every but the most unusual case is an hour per page in a brief, excluding the formal stuff numbered with Roman numerals. That's a brief. Motions and memos generally take a lot less.

So grant Budget, liberally, 4 hours of associates' time and a half hour of partner time to review the piece. At the rates mentioned in the opinion, that's about $1,500. Still pretty steep for a four-page memo, it seems to me, but less than a third of what Budget's lawyers requested.

I wonder if Budget is going to ask its lawyers to write off the fees. I wonder if the lawyers are going to offer to write them off. I wonder if Budget is going to do a review of the fees it has paid these lawyers in the past. I wonder if this is going to find its way to Illinois' attorney disciplinary authority.
I forgot to mention that the lawyers wanted another $4,300 for the time spent preparing the fee request. As part of the costs, they tried to get Consolidated to pay the $165 fee to have a lawyer admitted to practice in the 7th.

Shocks my conscience. And I'm a lawyer.

Wilson & Glover: (P^⌐P)?!!?

The Indiana Supreme Court came out with two spousal privilege cases today: State v. Wilson, No. 49S05-0501-CR-6 (Ind. 11/2/05) and Glover v. State, No. 49S02-0502-CR-56 (Ind. 11/2/05).

Before getting to the (serious) problems with the cases, Wilson finally takes care of an even more awful case, Hilton v. State, 648 N.E.2d 361 (Ind. 1995), in which Justice Selby, in her very first opinion, said that a lawyer who says, "I believe the witness will testify to X" does not make a sufficient offer to prove to preserve anything for appeal. The "I believe" was, according to Justice Selby and a unanimous court, insufficient. Hilton also placed other unreasonable and even silly requirements on offers to prove; and Wilson takes care of those too.

Hilton qualified, actually, for membership among the Blatant Indencies in the sidebar, and not just for its treatment of offers to prove. I've been waiting for its demise, in whole or in part, for 10 years.

Wilson is extraordinary, because it actually invalidates an entire code section because, the court says, the section was a "mistake" when considered together with the purpose of an entire recodification as that purpose was expressed in another section. (The alleged purpose of the recodification was not to change existing law.) The court tries to put the "mistake" off on the Commission on Recodification and its staff. One problem with this at least is that it is impossible to say which section, substance or purpose, is the "mistake," assuming there is one.

If you think about it, Wilson has a great deal in common with Justice Breyer's remedial opinion in Booker. It declares "ineffective" a statute properly passed into law that would not be "ineffective" if properly passed again into law tomorrow.

Glover says, without much ado, that either spouse can waive spousal privilege--which is to say, it pretty effectively does in the privilege. ("We think both the statutory language and a more realistic view of the reasons for this privilege support the conclusion that either spouse may waive the privilege.") That also does in 100 plus years of pretty well-established law, I think. Well, Ok.

At least one problem, though, is that the spousal privilege statute was part of the same recodification of the 1881 Civil Code as the statute at issue in Wilson. In Wilson the court takes the extraordinary step to invalidate a statute, because the statute changed the law when the purpose of the recodification was to not change the law. Then in Glover, the Supreme Court re-interprets a statute to change 100 years of law, even though it has just said in another opinion that it was the express intent of the General Assembly to not do that?

There is an additional problem with Glover. Maybe it is not so much a problem as simply something that ought to be discussed. There is a collision of two pretty well-established rules. On the one hand, priveleges are to be construed narrowly, which Glover says. But Glover also says that the common law rule was that either spouse could prevent the other from testifying. So the spousal privelege statute is in derogation of the common law. Statutes in derogation of the common law are also to be strictly construed and limited, to the extent possible, in their departure from the common law. Nothing in the spousal privilege statute suggests, much less requires, a change in the common law rule that either spouse may prevent the other from testifying.

I am not saying that there might not be a rational way to reach the same results in both Wilson and Glover. But they cannot both be right as written--except, perhaps, to the extent that they are decisions adverse to criminal defendants.

It is truly fascinating how little dissent there is on this court, even when pitching a century of law out with the . I doubt you could pick five lawyers randomly who would agree about the outcome, much less the means of getting there, in either of these cases. And we have five justices appointed by three governors over 15 years.

It would be a pretty interesting experiment, it seems to me, to give five top-notch Indiana lawyers the problems presented by these cases, have each do the research, and then write a hypothetical majority opinion. Then have them swap the opinions and have a vote. I understand that's not how opinions get written, but it might still be instructive, if not illuminating.

I read these cases and feel like the rat who's shocked no matter what door he opens--nuts.

Pinkston: Ryle was wrong . . .

In a fascinating turn of events, one panel of the Court of Appeals appears to have gotten tired of waiting for the Indiana Supreme Court's transfer decision in Ryle. In Pinkston v. State, No. 49A02-0412-CR-1003 (Ind. Ct. App. 10/31/05), (Robb and Bailey, Friedlander dissenting), the court decides that juvenile adjudications are not prior convictions for Blakely purposes after all.

The docket shows that Pinkston was fully briefed on June 9th. The Supreme Court heard oral argument in Ryle on June 21st. So this panel--or two members of it--either got tired of waiting or decided to contribute to the debate.

The court does, in fact, contribute something new to the debate. In addition to relying on Tighe (9th Cir)and Brown (that case from the crazy, liberal Louisiana Supreme Court), the court brings up two Tennessee cases that eluded me back in June when everyone was Ryle'd up: State v. Chatman, No. 01-0494 (Tenn. Crim App. April 19, 2005) and a case it relies on: State v. Wallace, No. (Tenn. Crim. App. January 28, 2005). (Chatman was decided four days after the Tennessee Supreme Court said in Gomez, over the AG's concession, that Blakely does not apply to Tennessee sentencing. So why the Chatman court had to consider Blakely at all escapes me.)

While deciding an important issue, the court misses another obvious one as well. In imposing an enhanced sentence, the trial court relied on the statutory aggravator that a reduced or suspended sentence would depreciate the seriousness of the crime. Both the Indiana Supreme Court and Court of Appeals have repeatedly said that this particular aggravating circumstance may only be used to justify refusing to mitigate a sentence and may not be used to enhance one. Since nothing in the opinion suggests that the trial court was considering a mitigated sentence, this aggravator was invalid.

The court also makes a bollocks of the opinion in its "Standard of Review" section beginning on page 8. The court purports to review the appropriateness of Pinkston's sentence under Indiana Appellate Rule 7(B). But the error the court finds is constitutional, so the debate should only be about whether Blakely error is structural or subject to harmless error analysis.

Even if Blakely error is subject to harmless error analysis, the error in not submitting the juvenile adjudications to a jury was surely not harmless. There were only three aggravators: the juvenile adjudications, the reduced sentence etc., mentioned just above, and the judicial finding that Pinkston was "in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility." Given the invalidity of the first two aggravators, the third, which had to be "derivative" at least in part of the other two, has to be invalid as well.

Just a word about Judge Friedlander's dissent. He's one of the gang for whom the prior-conviction exception is the "criminal history" exception; and juvenile adjudications are criminal history. Judge Friedlander is surely right that it is not a foregone conclusion that the Supreme Court is going to decide Ryle differently from the way the Court of Appeals did.

In fact, there are really only two reasons--discounting sloth--that I can imagine Ryle is taking so long: either the court doesn't think the case is very important in light of the number of cases involved and the Bookerization of the sentencing statutes last April; or there is one hell of a disagreement among the justices--who almost never like to publicly disagree too much. (I cannot recall when last I saw a scathing dissent from an Indiana justice. There have certainly been enough cases to justify one.)

Pinkston is worth reading in its entirety also because it is the first published opinion, I think, in an appeal from a post-Blakely jury sentencing. There will be more. A fascinating tidbit, by the way, is that the State filed a notice of aggravating circumstances way back at the end of September 2004--almost 6 months before Smylie was decided, 3 weeks before the Court of Appeals said that Blakely was "superficially applicable" in Holden, and while the Indiana AG was swearing up and down, in briefs and public comments, that Blakely did not apply to Indiana sentencing.

Zambrana from the 7th: Say that again . . .

Here's something I don't think I've ever seen. In United States v. Zambrana, No 04-2311(7th Cir. 10/31/05), the district court suppressed evidence with a pretty extensive order; the government appealed; and the Seventh Circuit sends it back for a more definite suppression order--with a caveat that the parties and the district court shouldn't take the remand as an indication of any inclination on the merits.

The district judge was, apparently, in a prior incarnation, a police officer. The police officer who testified at the suppression hearing apparently taught classes on "pre- and post-stop indicators," that the district judge characterized as courses in "How to avoid the warrant requirement in searching a vehicle."

The Seventh Circuit opinion emphasizes the importance of what a police officer knows from his or her experience. In this case the testifying officer said that folks rarely "play down" their arrest records, as one of the suspects in this case did when asked about it. That seems unlikely to me.

But in any event, if a police officer testifies that X is the case in his experience, is that pretty much the end of the matter? How, in a suppression hearing, without extensive discovery, can any defendant challenge what an officer claims his or her experience has shown?

Maybe the theme for today is (ghostly) transparency, discussed by Doug Berman at SL&P in this post about a per curiam opinion in Eberhart v. United States, No. 04-1538 (U.S. Oct. 31, 2005), reversing the Seventh Circuit on a procedural issue.

I find this case strange.