Thanks (Many Thanks!) to a correspondent with a judicial return address, I have come into possession of what appear to be the materials handed out during the Blakely talk at the Judicial Conference last week. (As I think I mentioned earlier, I understand that Judge Jane Magnus-Stinson of Marion Superior 6 gave the talk.) The documents arrived without note or comment.
Everything I received in the order I received it, minus one document, is here. There are bookmarks in the PDF file, so that if the file is opened with Acrobat, a list of the included documents appears.
The one document I have left out is the July 16, 2004, report of the National Center for State Courts: Blakely v. Washington, Implications for State Court Courts, which is available from the NCSC site here. This report was appended to the other documents. The specific comment in the report about Indiana is the following:
Indiana is apparently not affected by Blakely, according to a spokesperson for the state’s attorney general. However, many lawyers believe that Blakely does in fact affect the state, because the non-capital sentencing system is based on presumptive sentences that can be increased only by judicial finding of fact that an aggravator is present.
The report appears to have been amended since publication in July. The original version only contained the first sentence with the comment of the AG's "spokesperson." For those interested in such reports, the Vera Insitute has two excellent publications from August and September here and here. (The September report from Vera is really a must-read for the Blakely-addicted.)
In the materials is a wonderful collection of forms, substantive notes, and "Questions to Ponder." Indeed. I'll be pulling out specific documents for comment in the next days. (At last! The long-hunted Marion County Waiver form!) There is quite a lot to digest.
Some Big "IF's"
IF the materials are those from the Judicial Conference, and IF the Indiana Supreme Court, either through the Judicial Center, State Court Administration, or any other conduit, had anything to do with the substantive content of the materials, there hangs a question: Should the entire court recuse itself from consideration of Smylie and Heath, because each justice has now effectively expressed an opinion extrajudicially on the issues to be decided in those cases?
This question is especially important for Smylie, which is going to present the question of Blakely's application to consecutive sentences. The materials unambiguously say that Blakely does not apply to consecutive sentences as long as each sentence is the presumptive or less.
And what about the cases to come that will have been treated as the materials recommend? Can the Supreme Court impartially judge any resulting appeal when a trial court has merely done what an administrative arm of the Supreme Court's has told it to?
What does this arrangement, IF it is as I suspect, do to the development of the law in Indiana? One of the truly marvelous things about about the last several months has been the sheer variety, scholarship, thoughtfulness, ingenuity and even humor of the opinions issued by lower courts forced to rethink the world on their own. Those opinions are not just wonderful as spectacle. When the Supreme Court decides Booker and Fanfan, it will have the benefit of those opinions' insights.
Although the trial courts in this state do not issue published opinions or orders, surely helpful hints from above discourage independent thought and inventive, possibly correct, solutions to the many, many, serious challenges Blakely poses for criminal procedure in Indiana. (Of course the challenges aren't so serious, if the Supreme Court has already decided, without a case or argument before them, even the general contours of the post-Blakely regime in Indiana.)
To go back to the feds for a moment: the Second Circuit, literally dumbfounded by Blakely, took the very unusual step of certifying a series of Blakely questions to the Supreme Court. I don't think it ever occurred to any of the judges that they could get some helpful hints, i.e., a preview of Booker and Fanfan, from SCOTUS via a timely judicial coming-together. And the circuit courts of appeal have been issuing actual opinions in actual cases with guidance / mandates about how their respective district courts are to handle sentencing after Blakely.
Why should it be different here?
It's hard to believe, but the first Indiana case actually to apply Blakely, instead of temporizing more or less inventively, has come out in an unpublished opinion: Baehl v. State, which Marci Oddi has been kind enough to put up on her amazing site, The Indiana Law Blog. (Emphasis added):
Our supreme court has not yet examined the viability of Indiana's sentencing scheme in light of Blakely. Indiana's current sentencing scheme allows a trial court to use aggravating circumstances to enhance a presumptive sentence if it: (1) identifies all significant mitigating and aggravating circumstances; (2) states the specific reason why each circumstance is determined to be mitigating or aggravating; and (3) articulates the court's evaluation and balancing of the circumstances. Crawford v. State, 770 N.E.2d 775,782 (Ind. 2002). The trial court enhanced Baehl's sentence beyond the one and one-half year presumptive sentence based upon two aggravating factors that were not reflected in the jury's verdict and were not admitted by Baehl. The enhancement of Baehl's sentence beyond the presumptive sentence for a class D felony violates the Supreme Court's holding in Blakely, 124 S. Ct. 2537-2538. Consequently, we reverse Baehl's sentence and remand for resentencing consistent with Blakely and Apprendi.
While this is a pretty straightforward application of Blakely, there are a few things of note about the opinion other than the holding and the opinion’s NFP status. First, the Court of Appeals addressed Blakely, even though neither party had raised the issue:
The sole issue is whether the trial court abused its discretion in sentencing Baehl. Baehl argues that the aggravating factors used by the trial court were improper and that he should have been sentenced to no more than the presumptive sentence. Neither Baehl nor the State argue that the enhanced sentence violates the United States Supreme Court’s opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004), reh'g denied. Although we would not normally raise this issue sua sponte, we do so here because of the short duration of Baehl's sentence and the unusual circumstances of this case.
(Footnotes omitted). I have checked the docket, and Baehl's reply brief was filed a couple of weeks after Blakely was decided.
So is Blakely error now going to become Indiana fundamental error? If the error was waived on appeal by failing to raise it, why does the length of Baehl’s sentence matter? What about preservation of the issue below? (A number of federal courts, notably the 11th Circuit, have been quite harsh about preservation of the issue on appeal and below. The 11th has gone so far as to refuse to consider Blakely if first raised in a reply brief, even if the opening brief was filed before Blakely was decided.) What are the unusual circumstances other than a new case was decided while Baehl’s case was on direct appeal?
It is also at least worth noting that Judge May concurred in this opinion after her concurrence in Carson in August. The two opinions are not actually repugnant, but Carson is a lot less Blakely-friendly than Baehl, obviously. Perhaps Judge May attended the Blakely talk last week at the Judicial Conference and concluded that Blakely matters in Indiana, even if the Indiana Supreme Court has not yet spoken. (She may also have noted that the Supreme Court has granted transfer and ordered oral argument in Heath and Smylie, two NFP cases that would have been unremarkable before Blakely.)
Finally, about the NFP status. Appellate Rule 65(A) provides in part:
A Court of Appeals opinion shall be published if the case:
(1) establishes, modifies, or clarifies a rule of law;
(2) criticizes existing law; or
(3) involves a legal or factual issue of unique interest or substantial public importance.
If Baehl doesn’t fit (1) or (3), I’m not sure what would. And I think it fits (1) and (3) on either the opinion’s application of Blakely or its application of Blakely without argument from either party. The rule would seem to make publication of this opinion mandatory.
More on the Judicial Conference presently. The materials used at the talk have dropped into my lap.
Thanks to a lawyer up north, I and many others have received a digital copy of a memo from Lynn Murray, the Howard Circuit Court judge to the local criminal defense lawyers about how she's going to handle Blakely. This appears to be a result of the Blakely talk at the Judicial Conference last week, which I wrote a little about here. (The speaker, I am told, was Jane Magnus-Stinson, one of the Marion County judges.)
[Later]: Marcia Oddi has converted the memo from PDF for on-line reading here.
The highlights of the memo are that the State doesn't have to charge aggravators, but has to file a "Notice of Potential Aggravators" 30 days before trial. If there's a conviction, then there's a sentencing phase--for which there is, of course, no statutory authority, as Mike Limrick pointed out in his Res Gestae article last summer. There's nothing in the memo about whether the the evidence rules will apply at the sentencing phase.
Finally the memo says: "The court shall not accept a guilty plea without first determining that the defendant has been informed that by pleading guilty, the defendant waives the right to have a jury determine the aggravating circumstances."
At a minimum, if this stuff is coming from the Judicial Center or State Court Admin generally, I think it is becoming at least a safer guess that the Supreme Court is going to say that Blakely applies to Indiana non-capital sentencing. (Of course, they could have said it themselves with respect to Apprendi long ago without prompting, or after Mike Limrick's devastatingly persuasive article in Res Gestae in April 2003.)
Of course, there remains the question of what Blakely says about weighing in capital cases. But that's a whole nother question.
The Court of Appeals issued a second Blakely opinion today--again on rehearing from an NFP original opinion: Bledsoe v. State. Baker, Friedlander, and Bailey. Here's the passage of consequence:
In this instance, Bledsoe acknowledges that the trial court sentenced him to twelve years—two years beyond the presumptive—for committing the offense of burglary as a class B felony. See footnote Appellant’s Br. on Rehearing p. 7. In so doing, the trial court relied upon Bledsoe’s prior criminal history, noted that his rehabilitation could only occur in a penal institution, that he was on probation at the time of the offense, and that the trial court believed that Bledsoe would continue to engage in criminal activities. Tr. p. 105. As we have established in Carson, prior convictions shown by a defendant’s criminal history are exempt from the Apprendi rule as clarified by Blakely. Carson, slip op. p. 3. Also, just as we observed with respect to the circumstances in Carson, the remaining aggravating circumstances in Bledsoe’s case merely derive from his criminal history. Thus, the Blakely analysis is not implicated. Finally, there is no indication that Bledsoe objected to the contents of the pre-sentence investigation report.
As the passage says, it is simply following Carson, decided back on August 20th. Everything I think I have to say about this particular analysis I said in a long comment on Sentencing Law and Policy here. So there are now six judges of this opinion.
It continues to be amazing to me, however, how far the "fact of a prior conviction" can be taken--especially when it was not the prior conviction here in Bledsoe, apparently, that led to enhancement. All the more reason to object all the time to the "prior conviction" exception to prepare for the possible demise of Almendarez-Torres.
There have been some other developments on the home Blakely front as well. More anon.
Taking a page, perhaps, from the United States Supreme Court, the Indiana Supreme Court has granted transfer in two cases and set oral argument on the Blakely issues they raise. The cases are Heath v. State and Smylie v. State. (Suprisingly, both cases are NFP. Thanks to Marcia Oddi at Indiana Law Blog for getting them, scanning them, and making them available to all. Her report on the cases is linked to the subject line above.)
The argument is on November 10th at 9:00 a.m. It's a two-hour, consolidated argument on Blakely issues only, apparently. And it seems that it is happening without any additional briefing on the merits. I expect the citations to additional authority will be flying fast and furiously--a great deal has happened in Blakely-World since the transfer briefs were filed.
After I read them carefully, I'll post about what issues I think they raise. I know Smylie is going to present the question of effect Blakely has on consecutive sentences. I'm also trying to get the briefs--maybe even both sides.
The Court of Appeals reversed Zuniga's conviction here for visiting a common nuisance, because the State failed to prove that the location visited had been used for illegal drug use before. That's not the interesting part though.
The court rejected her argument that the evidence that she knew about illegal drugs being used at the site had been insufficient:
In the instant case, testimonial evidence revealed that Zuniga stepped inside the residence’s garage upon arrival. Detective Aaron K. Dietz (Detective Dietz) testified that prior to the raid nobody was outside the garage area or driveway. Detective Dietz also added that upon entering the home, he smelled burnt marijuana with the strongest smell coming from the garage where smoking devices, rolling papers, a rolling machine, residue of marijuana and blunt cigars were found. Thus, considering only the evidence most favorable to the judgment, together with all reasonable and logical inferences to be drawn therefrom, we can infer beyond a reasonable doubt that based upon the strong smell of burnt marijuana Zuniga knew that the residence was used for the unlawful use of a controlled substance. See Alspach, 755 N.E.2d at 210; Bass, 512 N.E.2d 460.
(Emphasis added). So now we are all presumed,beyond a reasonable doubt, to know what "burnt marijuana" smells like? And how exactly did we acquire that knowledge beyond a reasonable doubt? And how does this "inference" square with the requirement from other cases that a law enforcement officer know the odor of burnt marijuana from her "training and experience" in order for the odor to supply probable cause? See this case:
A sampling of cases from other jurisdictions holding that the distinctive odor of burnt marijuana detected by a trained and experienced police officer is sufficient to constitute probable cause to search a motor vehicle includes the following: United States v. Peltier, 217 F.3d 608, 610 (8th Cir. 2000); Brunson v. State, supra, 327 Ark. 567; Mendez [*752] v. People, 986 P.2d 275, 280 (Colo. 1999); [**6] People v. Stout, 106 Ill. 2d 77, 87 Ill. Dec. 521, 477 N.E.2d 498 (1985); State v. Moore, 90 Ohio St. 3d 47, 734 N.E.2d 804, 806 (Ohio 2000) (many cases cited in fn. 1, 2, p.807); State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999) cert. denied 526 U.S. 1140, 143 L. Ed. 2d 1025, 119 S. Ct. 1799.
Considering the stipulated facts and the numerous decisions from other jurisdictions, we have no hesitation in deciding that when a trained and experienced police officer detects the strong and distinctive odor of burnt marijuana coming from a vehicle, the officer has probable cause to search the vehicle. That is true under both the Fourth Amendment of our federal constitution and under Article 1, Section 11 of the Indiana Constitution.
Hawkins v. State, 766 N.E.2d 749, 751-752 (Ind. Ct. App., 2002). No need for the "trained and experienced police officer" anymore.
Marcia Oddi over at ILB is reporting here that the Court of Appeals has reversed Frank Street's murder conviction in a memorandum decision. From Marcia's site, it appears the issue was Street's incompetence to stand trial--or even to plead guilty.
I'm doing what I can to get a hold of the decision. I'd love to put it up. Not the usual stuff buried in an NFP.
I finally got my hands on a real live waiver form (here) that an Indiana court is using to try to neutralize all of Blakely's marvelous potential mischief. What strikes me most about this is the ubiquitous use of "may." You "may" have this right or that right. If a court cannot advise you about what you "are" waiving, how can any waiver be knowing, voluntary, or intelligent?
The Indiana waiver is much different from the waiver (here) USSGUIDE reports that federal prosecutors have been using.
I believe that this particular waiver form is being supplied by State Court Administration. (I believe this, because I am told the judge who produced it called SCA after she realized that she had, in mid-August, never heard of Blakely.) I wonder if this is the same waiver being used in Marion County and/or elsewhere.
If anyone out there has any more Blakely waivers, let me know. I'd love to see them.
Indiana Post-Conviction Lawyers, Start Your Engines.
I've been away for ten days. Four of them were absolutely screenless. No computer, no television, no tubes of any kind. I suffered no noticeable Blakely withdrawal symptoms.
I did think about my working hypothesis about the law in Indiana. The idea occurred to me about a year ago after yet another defeat in a case I could not lose. The hypothesis goes something like this:
Indiana, as a matter of policy, is very good about making sure that everyone has a lawyer. The courts, trial and appellate alike, then make the lawyers largely irrelevant by making the law largely irrelevant.
Just a working hypothesis.
Great to be back in the mine.
The Court of Appeals issued a decision today in Simmons v. State here. Simmons received 94 years for multiple convictions with some sentences imposed consecutively and all sentences enhanced beyond the presumptive. There is no explicit mention of Blakely. There is, however, this odd statement:
Thus, for each of his convictions the trial court enhanced Simmons’ presumptive sentence; however, we also note that the trial court did not apply the maximum sentence permitted by statute.
Why is it relevant to anything that the trial court did not impose "the maximum sentence permitted by statute"? Assuming something changed between Apprendi and Blakely, Apprendi would only matter if the court had imposed a sentence greater than "the maximum sentence permitted by statute"; Blakely would matter if the judge-made findings permitted an enhanced sentence--which they did.
At best, this presents an application of old-style Apprendi reasoning that completely ignores Blakely. At worst, it presents a complete misunderstanding of both Apprendi and Blakely.
When will the Indiana Supreme Court speak?
It seems that Blakely is going to be on the afternoon menu of the Judicial Conference on September 23rd. The unspecified speaker will discuss Blakely's "potential impact in Indiana and practical tips for dealing with Blakely." (The full, googlized, agenda is here.)
My anecdotal understanding is that the Judicial Center is giving out pretty detailed "tips" to the trial courts on request, and that the major "tip" is that Blakely applies in Indiana. If that is true, that is not something the Judicial Center staff thought up on their own--which makes the mention of Blakely's "potential impact in Indiana" quite precious.
I wonder if the "practical tips" include use of the highly questionable blanket waiver the feds have been using and that have been running around the Marion County courts, I hear tell. (You can look at the fed version on USSGUIDE here.) (I actually saw one of these creatures handed out today while I was on deck for a PCR hearing, although I did not see the contents.)
And what does it mean to "deal with Blakely"? Is Blakely just some sort of annoyance to be "dealt with"?
All in all, the Blakely blurb sounds a lot like the titles of some computer software related web sites or book: Tips and Tricks for Blakely 1.0 (beta); Annoyances of the Blakely OS. In the same vein, they could have been blunt: Blakely for Dummies--which we all are, until some court in this State finally says something worth saying about Blakely. They could also have made it more like the preview of space travel: "Now that you've taken the plane to Apprendi-Land, here is what to expect on the rocket to Blakely World."
I have to find out who the speaker is going to be.
Nothing from the courts today, so it's a fine day to start. Because there is considerable discussion elsewhere of the published decisions of the Indiana appellate courts, I want to especially invite peope to email scanned unpublished decisions of the Court of Appeals or scanned orders from the trial courts. I prefer PDF format, but I can handle TIF and others. I think I have a place where I can post the scanned documents so everyone can see them on the theory that sunlight is the best disinfectant.
Right now, I am personally interested in anything Blakely having to do with Indiana. Although the Supreme Court in one case and the Court of Appeals in a number of cases have ducked Blakely, by all accounts the Court of Appeals, at least, has permitted a great number of supplemental briefs on issues arising out of Blakely. Presumably, the decisions in those cases should be forthcoming.
Once I figure out how this blog works, my email address should appear permanently in the sidebar. For now, I'll put it here: Mka.Law@sbcglobal.net.
