More on Arizona's State v. Brown

The Arizona Supreme Court opinion in State v. Brown that I mentioned earlier here is now available online here. As further reason not to decide issues not directly before it, the court included a final footnote 5:

We are guided in this regard by the Supreme Court of the United States, which has employed a distinctly incremental approach to the topic now before us. In Jones v. United States, 526 U.S. 227 (1999), the Court noted its serious constitutional concerns with a federal statute that could be read as allowing stricter criminal punishment on the basis of facts not found by a jury. 526 U.S. at 243 n.6. The holding of the case, however, rested on an interpretation of the statute chosen to avoid such “serious constitutional questions.” Id. at 251-52. One year later, Apprendi turned the Jones concern into a constitutional rule. 530 U.S. at 490. Apprendi, however, declined to overrule the holding in Walton v. Arizona, 497 U.S. 639 (1990), that a judge may find aggravating factors necessary for imposition of the death penalty. Id. at 497. The Court also refused to express an opinion as to whether its holding would affect the Federal Sentencing Guidelines. Id. at 497 n.21. Ring v. Arizona, 536 U.S. 584, 589 (2002), then found Walton “irreconcilable” with Apprendi and overruled Walton. In Blakely, the Court made clear that the rule of Apprendi invalidated a state’s non-capital criminal sentence imposed on the basis of aggravating facts not proved beyond a reasonable doubt to a jury. 124 S. Ct. at 2538. Yet, the Court again refused to express any opinion on the validity of the Federal Sentencing Guidelines, because the Guidelines were not directly at issue. Id. at 2538 n.9. The Court now is considering the validity of the Federal Sentencing Guidelines. See United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 73 U.S.L.W. 3073 (Aug. 2, 2004); Fanfan v. United States, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 73 U.S.L.W. 3073 (Aug. 2, 2004).

The Arizona Attorney General apparently had the grace to concede in its own appeal that Blakely affects Arizona's sentencing scheme (which appears to be similar to, but more structured, than Indiana's). With that concession, the Arizona Supreme Court vacated the Court of Appeals' decision and remanded the case to the trial court to consider every other issue.

With the Booker and Fanfan decisions on the near horizon, it's probably a good idea not to break all the good china at the first opportunity.

More on the Proposed Aggravating Circumstances

An astute lawyer has pointed out that the new proposed aggravating circumstance for violating a protective order is already the independent crime of Invasion of Privacy. Ind. Code § 35-46-1-15.1. It's a Class A misdemeanor or a Class D felony if the person already has an unrelated conviction for Invasion of Privacy.

In my post about the Sentencing Commission's proposed aggravating circumstances (here), I overlooked this, saying that this particular aggravating circumstance could be prosecuted as indirect criminal contempt. The effect of this aggravating circumstance can be quite dramatic. In a B felony prosecution, the aggravating circumstance could be used to enhance a sentence by 10 years while the independent, A-misdemeanor variety of the independent crime could only produce a year's sentence. That is, in a B-felony case alone, with a violation of a protective order, a 20-year sentence could result. If the misdemeanor Invasion of Privacy were charged independently together with the B felony and there were no other aggravating circumstances, the maximum possible consecutive sentences would total 11 years.

I am not particularly well-versed in the intricacies of the federal Sentencing Guidelines. I believe, though, that there is a two-level enhancement for obstruction of justice or perjury. See United States v. Sheikh, 367 F.3d 683, 686-87 (7th Cir. 2004) ("A court may impose a two-level enhancement under U.S.S.G. § 3C1.1 if 'the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction.' Perjury is the sort of conduct that may warrant an obstruction of justice enhancement. (Some citations omitted).). That extra time imposed for the two-level bump may or may not correspond roughly to what an independent conviction for obstruction or perjury would produce. In any event, it is only a two-level bump. Under Indiana's sentencing scheme, a single aggravating circumstance can subject someone to a maximum sentence. Wooley v. State, 716 N.E.2d 919, 932 (Ind. 1999); accord Jordan v. State, 787 N.E.2d 983, 997 (Ind. Ct. App. 2003).

After Blakely, the State is going to have to "charge" and prove to a jury the elements of Invasion of Privacy beyond a reasonable doubt regardless of whether it is an aggravating circumstance or independently charged. Why should a sentence be potentially 9 years longer because a prosecutor chooses to treat Invasion of Privacy as an aggravating circumstance instead of an independent crime? (And the disparity, of course, would be even more dramatic in an A-felony or murder case.)

A Blakely Case of My Own & Arizona on Advisory Opinions

I have caught my very own Blakely case, and it is going to be fascinating. Until you start thinking about a concrete case with its particular facts and procedural history, you don't really understand the breath-taking variety of both tactical and strategic decisions that Blakely, with all of its current uncertainties, compels you to make. The Arizona Supreme Court understood this in a decision that came down last week, State v. Brown, 2004 WL 2390005 (Ariz. Oct. 27, 2004), in which the court said:

The parties and their amici ... ask us to address myriad other questions that may arise either in the further prosecution of this case or in other cases potentially affected by the Apprendi and Blakely decisions. Given the procedural posture in which this case arrived in this Court, we decline to do so. While many of these additional issues deserve serious consideration, almost none have been directly addressed by the trial judge, and none were raised in or decided by the court of appeals. We are unwilling, even in this important area of the law, to consider these issues as an initial matter in the context of this special action.

We recognize and appreciate the interest that both the State and the defense bar have in understanding the full implications of Apprendi and its progeny for the Arizona sentencing scheme. We believe, however, that the best approach is to resolve any such questions in this dynamic area of the law in the context of a case in which the relevant issue is squarely presented, properly briefed, and addressed by the courts below. We also are mindful that the legislature may choose to moot many such questions, as it did in the wake of Ring, by enacting new sentencing statutes. We therefore leave additional questions not addressed below to another day.

When last I checked, the opinion was not yet available on the web, and I have borrowed the quote above from Doug Berman's Sentencing Law & Policy. (The discussion of this case specifically is here.)

(UPDATE: The opinion is available online in PDF format here.)

It will be interesting to see to what extent the Indiana Supreme Court is going to indulge in the business of advisory opinions in Heath and Smiley. Although the court regularly protests that it will not engage in advisory opinions, in fact, it and the Court of Appeals, both, issue at least partially advisory opinions all the time. Two common varieties immediately come to mind: 1) when the courts say that an issue has been waived or procedurally defaulted, but then go on to say why the appellant loses, even if the issue were procedurally viable; and 2) when the courts discuss issues that are "likely to arise" when the case is remanded or retried.

There will be a bucketful of the latter sort of issue in both Heath and Smylie, which taken together really only raise necessarily the three issues of waiver, the application of Blakely to Indiana sentence enhancements, and the application of Blakely to discretionary consecutive sentencing. I think anything else the court "decides" will be dictum and advisory. There is, perhaps, a fourth issue about appellate review of sentences after Blakely that the court would have to decide, were it to undertake resentencing itself.

Aggravating & Elemental Ironies

I do not have the full report of the General Assembly's Sentencing Commision, but I do have some recommendations the Commission has made regarding the addition and deletion of statutory aggravating circumstances.

---

Proposed New Aggravating Circumstances
IC 35-37-2.5 (new chapter)

(1) The harm, injury, loss, or damage suffered by the victim was:
(A) significant; and
(B) greater than the elements necessary to prove the commission of the offense.

(5) The person violated a protective order issued against the person under IC 34-26-5 (or IC 31-1-11.5, IC 34-26-2, or IC 34-4-5.1 before their repeal), a workplace violence restraining order issued against the person under IC 34-26-6, or a no contact order issued against the person.

(8) The person was in a position having care, custody, or control of the victim.

(10) The person threatened to harm the victim or a witness if the victim or witness told anyone about the offense.

Proposed Deleted Aggravating Circumstances
IC 35-38-1-7.1

(3) The person is in need of correctional or rehabilitative treatment that can best be provided by commitment of the person to a penal facility.

(4) Imposition of a reduced sentence or suspension of the sentence and imposition of probation would depreciate the seriousness of the crime.

(7) The person committed a forcible felony while wearing a garment designed to resist the penetration of a bullet.

(8) The person committed a sex crime listed in subsection (e) and:
(A) the crime created an epidemiologically demonstrated risk of transmission of the human immunodeficiency virus (HIV) and involved the sex organ of one (1) person and the mouth, anus, or sex organ of another person;
(B) the person had knowledge that the person was a carrier of HIV; and
(C) the person had received risk counseling as described in subsection (g).

(9) The person committed an offense related to controlled substances listed in subsection (f) if:
(A) the offense involved:
(i) the delivery by any person to another person; or
(ii) the use by any person on another person;
of a contaminated sharp (as defined in IC 16-41-16-2) or other paraphernalia that creates an epidemiologically demonstrated risk of transmission of HIV by involving percutaneous contact;
(B) the person had knowledge that the person was a carrier of the human immunodeficiency virus (HIV); and
(C) the person had received risk counseling as described in subsection (g).

(10) The person committed the offense in an area of a consolidated or second class city that is designated as a public safety improvement area by the Indiana criminal justice institute under IC 36-8-19.5.

(12) Before the commission of the crime, the person administered to the victim of the crime, without the victim's knowledge, a sedating drug or a drug that had a hypnotic effect on the victim, or the person had knowledge that such a drug had been administered to the victim without the victim's knowledge.

---

I find a certain irony in the new proposed aggravating circumstances involving violations of protective orders and threatening victims or witnesses. The violation of a protective order is independently prosecutable by the State as indirect criminal contempt. Simms v. State, 791 N.E.2d 225 (Ind. Ct. App. 2003); Ind. Code § 34-47-3-1. Similarly, threatening a victim or witness if they tell is independently prosecutable by the State as Intimidation under Indiana Code § 35-45-2-1(a)(2) or (b)(1)(B)(iii) and (c).

So while many are thinking of Blakely as pushing aggravating circumstances into the category of traditional elements, others are thinking of pushing whole crimes into the category of aggravating circumstances. Just another surprising Blakely result--to me, anyway.

The result is also not without significant consequences. For example, the worst kind of Intimidation is a C felony with a maximum sentence of 8 years. If the State were to charge the intimidation as an aggravating circumstance in, say, a B felony case, a defendant could have his or her sentence upped by 10 years, two years more than if there had been an independent conviction for Intimidation as a C felony. And the 10-year enhancement would be available, even if the intimidation alleged as an aggravating circumstance would only have been of the A misdemeanor variety as an independent criminal charge.

Strangely, the situation is the reverse, at least as a theoretical matter, with the violation of a protective order and indirect criminal contempt. The only limitation on a sentence for indirect criminal contempt is reasonableness. In re Craig, 552 N.E.2d 53, 56 (Ind. Ct. App. 1990). So for a C felony conviction, for example, only four years could be added for an indirect criminal contempt as an aggravating circumstance, even if a sentence greater than four years would be reasonable if the indirect contempt had been prosecuted independently. (I don't know what the record maximum sentence for indirect criminal contempt is. Craig relies on United States v. Misenhemer, 677 F. Supp. 1386 (N.D. Ind. 1988), a case in which Judge Miller handed out a 10-year sentence for the refusal to provide a handwriting exemplar.)

Blakely & Homeless Hounds in California

Doug Berman at Sentencing Law & Policy asked (here) if anyone knew if the California Supreme Court had set a date for oral argument in People v. Black and People v. Towne, two Blakely cases the court has taken on an expedited basis. Curious myself, I went and had a looksee at the dockets here and here. No date for either case.

It turns out in Black, though, that the California Supreme Court has received the Court of Appeals' appellate record, which includes three dog houses, according to the notes section.

Well, Ok. That's plenty weird--especially if you go read Black, which doesn't contain so much as a paw print. But it gets better. The appellant in Black, the Blakely case, is Kevin Michael Black. The California web setup is none to friendly to the uninitiated, so I also had to check two separate dockets for Phillip Black's petition for review here and here, also from the Fifth District Court of Appeals. The notes section here shows only one dog house.

Maybe no physical dog houses have gone to San Francisco. Maybe the notes are just a way the California Court of Appeals tells the Supreme Court how much of a dog the case is.

Heath Amicus Brief

The Marion County Public Defender Agency has filed an amicus brief in Heath. Ann Sutton and the other authors of the brief have kindly given me permission to make it available. It is here as a Word document. Together with the brief, they filed an addendum identifying 12 Blakely-affected statutes. (I think there must be more.) That addendum is here.

Because the issue is so important, and because Judge Magnus-Stinson took precisely the opposite position in her presentation on Blakely at the Judicial Conference at the end of September, I 'm going to pull out the argument regarding Blakely and consecutive sentences:

Blakely also affects other aspects of Indiana's felony sentencing system. Not only does the Code unconstitutionally permit trial courts to increase the sentence for one felony based on aggravating facts found by the judge alone, section 35-50-1-2 also permits trial courts to impose consecutive sentences for multiple felonies based upon that same determination. I.C. 35-50-1-2 ("The court may consider the aggravating and mitigating circumstances in IC 35-38-1-7.1(b) and IC 35-38-1-7.1(c) in making a determination under this subsection."). In Ortiz v. State, this Court reiterated that "[i]n order to impose consecutive sentences, a trial court must find at least one aggravating circumstance." 766 N.E.2d 370, 377 (Ind. 2002) (citing Jones v. State, 705 N.E.2d 452, 455 (Ind. 1999)). Thus, the imposition of consecutive sentences in Indiana, just like an increase of a sentence for one felony, is permitted under the Code only after the trial court -- not a jury -- makes a determination of fact. Because the end result of this practice is an increase in the maximum sentence a judge "may impose without any additional findings," Blakely, 124 S. Ct. at 2537 (alteration in original), the imposition of consecutive sentences based on judicially found aggravators is equally unconstitutional.

Footnote 3 also takes an interesting position about what to do after Blakely aggravators have been set aside:

Nevertheless, defendants retain the statutory right to present and argue mitigating circumstances at sentencing. See Ind. Code § 35-38-1-7.1(c). Trial courts are required to credit any proffered mitigating circumstances that are significant and clearly supported by the record. Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). If mitigating circumstances are found and no aggravating circumstances exist, a sentence below the presumptive must be imposed. See Laughner v. State, 769 N.E.2d 1149, 1167 (Ind. Ct. App. 2002), trans. denied.

The State's response is due November 4th, and I hope to be able to put it up shortly thereafter.

Cowens Published & Some Comments on Pattern

On the request of the State Public Defender, who represented Cowens, the Court of Appeals has published its denial of rehearing in Cowens v. State, in which the court "declines" to "extend" the application of Blakely to discretionary consecutive sentences. Before the blog lights went out, I mentioned Cowens here, and its apparent conflict with Marcum v. State (among other cases).

There is a pattern developing in the Court of Appeals' Blakely opinions, I think. It is, quite simply, the court repeatedly fails to provide any explanation for the positions it takes. There may be good reasons, for example, not to apply Blakely to discretionary consecutive sentences. The Court of Appeals is certainly not the first court not to "extend" Blakely to consecutive sentences. In particular, New Jersey and California have both rejected the application of Blakely to consecutive sentences. State v. Abdullah, 2004 N.J. Super. LEXIS 355 (N.J. Super. Ct. App. Div. October 12, 2004); People v. Sykes, 16 Cal. Rptr. 3d 317 (Cal. Ct. App. July 28, 2004). Here is the passage from Abdullah regarding Blakely and consecutive sentences:

Finally, we address defendant's contention that the factors used to support imposition of parole ineligibility and consecutive terms should be determined by a jury. Both Blakely and Apprendi involved a single offense. Neither dealt with, nor are they applicable to, the determination of consecutive sentences. See People v. Sykes, 120 Cal. App. 4th 1331 (2004) (noting that the historical and jurisprudential basis for the Blakely and Apprendi holdings did not involve consecutive sentencing). Although the imposition of consecutive terms and a five-year term of parole ineligibility, N.J.S.A. 2C:43-6b, increase defendant's punishment, they do not increase the penalty above what the law provides for the offense charged. See Harris v. United States, 536 U.S. 545, 562, 122 S. Ct. 2406, 2416-17, 153 L. Ed.2d 524, 541 (2002) (plurality opinion). We are satisfied that the sentence imposed does not suffer from the constitutional infirmities proscribed by Blakely.

It is, perhaps, not much more of an explanation simply to say that we're doing what California and New Jersey are doing. Indeed, New Jersey essentially says, "We're following California (Sykes)" and a mere merry-go-round of "authority" may not be worth much more than a decision (apparently) by fiat such as Cowens. The Sykes opinion, however, has a great deal more to it than Abdullah even lets on, and it requires some thought:

Neither Blakely nor Apprendi purport to create a jury trial right to the determination as to whether to impose consecutive sentences. Both Blakely and Apprendi involve a conviction for a single count. The historical and jurisprudential basis for the Blakely and Apprendi holdings did not involve consecutive sentencing. (Blakely v. Washington, supra, 542 U.S. at p. __ [124 S. Ct. at pp. 2534-2536]; Apprendi v. New Jersey, supra, 530 U.S. at pp. 476-483, 489-490, fn. 15.) Further, in Apprendi, Associate Justice John Paul Stevens explained the jury trial right at issue: "We do not suggest that trial practices cannot change in the course of centuries and still remain true to the principles that emerged from the Framers' fears 'that the jury right could be lost not only by gross denial, but by erosion.' Jones [v. United States (1999)], 526 U.S. [227,] 247-248 [143 L. Ed. 2d 311, 119 S. Ct. 1215]. But practice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reasonable doubt." [***29] (Apprendi v. New Jersey, supra, 530 U.S. at pp. 483-484, fn. omitted, italics added.) (6) The consecutive sentencing decision does not involve the facts, in Justice Stevens' words, "necessary to constitute a statutory offense." (Id. at p. 483.) In fact, the consecutive sentencing decision can only be made once the accused has been found beyond a reasonable doubt to have committed two or more offenses--this fully complies with the Sixth Amendment jury trial and Fourteenth Amendment due process clause rights. Those facts which affect the appropriate sentence within the range of potential terms of incarceration for each offense are subject to Blakely and Apprendi; this constitutional principle does not extend to whether the sentences for charges which have been found to be true beyond a reasonable doubt shall be served consecutively. In this respect, we are in full accord with the numerous courts that have held that Apprendi does not apply to the decision to impose consecutive sentences.

(Some citations omitted).

On the other side and closer to home, the Seventh Circuit in United States v. Messino, 382 F.3d 704 (7th Cir. August 31, 2003), reversed consecutive sentences in a somewhat unusual circumstance. Limited by Apprendi, the district court could not get to the guideline range without imposing consecutive sentences. Without much discussion, as if it's conclusion were obvious, the Seventh Circuit said, "No": "Because we find that the court erred in sentencing Clem based on its own factual findings, we vacate the conspiracy sentence and the consecutive sentence imposed as a result of those findings."

Additionally, Ohio has squarely held that Blakely does apply to consecutive sentences in State v. Moore, 2004 Ohio App. LEXIS 4915 (Ohio Ct. App. October 7, 2004):

In this case, the court could impose consecutive sentences only by making judicial findings beyond those either determined by a jury or stipulated to by the defendant. Defendant did not stipulate to the findings or otherwise waive his constitutional right to have these facts determined by a jury. Therefore, defendant's first and second assignments of error are sustained and his sentence is vacated and remanded for consideration of the application of Blakely to defendant's sentence.

There was a similar failure in Carson and Bledsoe to offer any explanation why "criminal history" can be equated with the Almendarez-Torres exception for "the fact of a prior conviction." Again, there may be reasons for making the equation. Judge Posner in Booker appears to make it, although without elaboration and in pure dicta.

But there are also substantial reasons not to make it. The Supreme Court in Apprendi itself described the "prior conviction" exception as "at best an exceptional departure" from Apprendi's own rule. Apprendi, 530 U.S. at 487-88 ("[O]ur conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was "the prior commission of a serious crime.").

I am not suggesting that the Indiana appellate courts ought to be writing law review articles. The Court of Appeals, especially, has a very heavy case load, and it is in the business of deciding cases--lots of cases. The problem is that is quite easy to see why the opinions in Cowens, Carson, and Bledsoe are simply wrong and much, much more difficult to see why they might even be plausible. In Cowens, for example, there is simply no discussion of why Blakely would not apply to discretionary consecutive sentences, even though controlling precedent of the Indiana Supreme Court requires the judicial finding of an aggravating circumstance to support such sentences. That requirement would seem to put the Blakely bullseye on the back of consecutive sentencing in Indiana. If not, why not? And why won't the Court of Appeals tell us? (Could it be because of O'Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001), in which the Supreme Court said, "It is a well established principle that the fact of multiple crimes or victims constitutes a valid aggravating circumstance that a trial court may consider in imposing consecutive or enhanced sentences"?)

More stuff to come. Lots more stuff.

My Return to the Blogosphere

I'm back--if anyone is still out there after the blog lights have been out so long--after two plus weeks coping (pretty well, actually) with Alex's four-year old sense and sensibilities. I think the only thing I couldn't really handle was the series of lego space ships that were so fragilely constructed that they would disintigrate at first flight. And then they had to be put back together EXACTLY as they were before the catastrophe. Now, Alex couldn't do that himself. But he did know, he claimed, if a single piece was out of place. And there were ALWAYS pieces out of place.

OK. Back to it. So much to write about. And the November 10th Blakely showdown in the Indiana Supreme Court is fast approaching. Maybe by week's end I'll be something like current--but only "something like."

Go Sox.

Krebs v. State: Blakely Sua Sponte Again

As Marcia Oddi reports here on the Indiana Law Blog, there's a new Blakely case out from the Court of Appeals: Krebs v. State, Court of Appeals No.49A04-0310-CR-549 (Ind. Ct. App. October 20, 2004), by Judges May, Sharpnack, and Bailey.. Here's the (rather long) passage about Blakely:

Krebs argues the trial judge’s imposition of a one hundred year sentence is inappropriate and disproportionate. However, we do not address that argument. Instead we evaluate sua sponte the constitutionality of Krebs’ sentence under the United States Supreme Court’s recent decision in Blakely v. Washington, ___U.S. ____, 124 S. Ct. 2531 (2004).

Prior to Blakely, we reviewed our trial courts’ sentencing decisions for an abuse of discretion. See, e.g., Bocko v. State, 769 N.E.2d 658, 667 (Ind. Ct. App. 2002), reh’g denied, trans. denied 783 N.E.2d 702 (Ind. 2002). If a trial court used aggravating or mitigating circumstances to modify the presumptive sentence, all we required the trial court to do was: (1) identify all significant mitigating and aggravating circumstances; (2) state the specific reason why each circumstance is determined to be mitigating or aggravating; and (3) articulate the court’s evaluation and balancing of the circumstances. See id.

However, in Blakely, the Supreme Court held the Sixth Amendment requires a jury to determine beyond a reasonable doubt the existence of aggravating factors used to increase the sentence for a crime above the presumptive sentence assigned by the legislature. 124 S. Ct. at 2536. The Court held “the fact of a prior conviction” is an exception to this rule. Id. Accordingly, it appears our trial courts no longer have discretion to sentence a criminal defendant to more than the presumptive sentence unless the defendant waives his right to a jury at sentencing, a jury first determines the existence of aggravating factors, or the defendant has a criminal history.

The trial court enhanced Krebs’ sentences based on the following aggravating circumstances:

I’m finding aggravating circumstances throughout this because the crime was particular [sic] heinous crime involving a 10 and a 12 year old daughter who - and he had obviously confronted the victims to commit the crime. That’s aggravating. He was obviously in a position of trust being a father and from the pattern of this occurrence, it would appear that he would probably commit these crimes again, it appears to the Court.

(Tr. at 217-18.)

The trial court then sentenced Krebs to a total of one hundred years in the Indiana Department of Correction, stating:

…I’m adding 5 years to the 30 years on that. 30 years will be executed in DOC. 5 years will be suspended. On Count II, also a Class A felony, there will be a 30 year sentence to be consecutive with Count I - it will be a 35 year sentence. 30 years executed. 5 years suspended. Count II to be consecutive with Count I. Count III, is a Class A felony. There will be a 30 year sentence. I’m finding aggravating circumstances for the same reasons I already stated and Count III will be consecutive with Counts I and II. Count IV is a Class B felony a 10 year stated term. I’m finding aggravating circumstances that I repeated and adding 2 years to that. 10 years will be executed consecutive with Counts I, II and III. Count V merged. Count VI is a Class A misdemeanor. There will be a one year sentence to be concurrent with Counts I, II, III, and IV. And executed sentence sentence thereby of 100 years and the aggravating circumstances that I stated - that I considered and repeat for deciding this sentence consecutively.

(Appellant’s App. at 218.) See footnote.

The trial court enhanced Krebs’ sentences based on factual findings without a jury making those findings beyond a reasonable doubt. That procedure violates Krebs’ Sixth Amendment right to trial by jury. See Blakely, 124 S. Ct. at 2536.

(Emphases added). The last footnote referred to in the passage reads:

The State argues Krebs’ sentences do not exceed the presumptive because the portion in excess of the presumptive on each count was suspended. We disagree.

In a concurrence in Beck v. State, 790 N.E.2d 520 (Ind. Ct. App. 2003), this judge noted a suspended sentence is one actually imposed but the execution of which is thereafter suspended. Id. at 523 (May, J., concurring). Such a sentence is “a definite sentence postponed so that the defendant is not required to serve his time in prison unless he commits another crime or violates some court-imposed condition[.]” Id. (citing United States v. Gajdik, 292 F.3d 555, 558 (7th Cir. 2002)). See also Pagan v. State, 809 N.E.2d 915, 928 n.9 (Ind. Ct. App. 2004) (“This court has clarified that we will consider suspended portions of a sentence as well as executed portions when considering the appropriateness of a sentence.”); Cox v. State, 792 N.E.2d 898, 904 n.6 (Ind. Ct. App. 2003) (“A year is still a year, and a sentence is still a sentence.”), trans. denied.

The court remanded the case for "sentencing proceedings consistent with Blakely."

---

Here is what I find most interesting about this opinion:

1. The court raises Blakely sua sponte.
2. The court applies Blakely to suspended sentence enhancements.
3. The court continues the approach of equating "criminal history" with "the fact of a prior conviction."
4. The remand gives no hint what "sentencing proceedings consistent with Blakely" might look like.

With respect to the first point, according to the docket, the State filed its appellee's brief on June 7th. No reply brief was filed. It would have been due June 25th, the day after Blakely came out. This was not, apparently, one of the many cases in which supplemental briefing was requested.

So we have the Court of Appeals deciding Blakely cases without briefing from either side and the Supreme Court gearing up to do almost the same. I am not suggesting the Court of Appeals should not have raised Blakely sua sponte. Blakely errors actually fit rather nicely into the standard definition of Indiana "fundamental error":

The 'fundamental error' doctrine permits an appellate tribunal to address an error not otherwise preserved for review if the error appears plainly on the face of the record and is of such consequence that it denied defendant due process. Rowley v. State, 442 N.E.2d 343 (Ind. 1982). "To rise to the level of fundamental error, the error must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process." Maul v. State, 731 N.E.2d 438, 440 (Ind. 2000)(citations and internal quotations omitted).

Deane v. State, 759 N.E.2d 201, 204 (Ind. 2001).

That aggravating circumstances were not proved to a jury beyond a reasonable doubt will appear on the face of the record. That they were not proved to a jury and that they were not proved beyond a reasonable doubt are both, quite literally, deprivations of due process, since the Due Process Clause of the Fourteenth Amendment both incorporates the Sixth Amendment jury-trial right and requires proof beyond a reasonable doubt.

So why won't the Court of Appeals use the magic words? (Recall that in Baehl v. State, the first Indiana Blakely reversal (NFP), discussed here, the Court of Appeals also raised Blakely sua sponte because of Baehl's short sentence and the "unusual circumstances" of the case.)

Sentencing Commission Report after Blakely

I understand that a report was issued today by a sentencing commission working for the General Assembly. I also understand that the commission's proposal is to adopt a system similar to Kansas's--about which I know appallingly little. (Recall that it was only the Kansas Supreme Court, I believe, of all the courts in the country, that "understood" that Apprendi applied to its general sentencing scheme. The Kansas legislature then implemented a system of bifurcated trials.)

I'm doing what I can to acquire the report.

The Sunday Pickle

Gizwatch: A no-nonsense doowhistle.

Doowhistle: an elaborate gizwatch; a gizwatch embellished.

Henningsen: 7th Circuit Blakely Waiver Case

The Seventh Circuit issued a decision today with an interesting comment about waiver of Blakely issues: United States v. Henningsen. Here is the passage regarding waiver:

Although Henningsen did not raise the issue of constitutionality in his brief, he made notice of the Blakely and Booker decisions in a subsequent filing and raised the issue during argument. In light of the uncertainty surrounding this issue and the questionable constitutionality of Henningsen’s sentencing enhancement, we do not find that Henningsen has waived his right to challenge the validity of the district court’s sentencing enhancement.

The Seventh Circuit is withholding the mandate in this case until after the opinions in Booker and Fanfan issue. But there is nothing that I am aware of to suggest that the opinion in either case is going deal with waiver. That would leave the Seventh Circuit's waiver approach untouched, at least for the time being.

Booker & Fanfan Transcript

As Doug Berman at Sentencing Law & Policy says here, the transcript of the Booker and Fanfan arguments are now available here. It's 110 pages, and I have not had a chance to read it all yet. By all accounts, the acting SG, Paul Clement, was amazing, even though he was not his office's lead man on Blakely.

I wonder if AG Steve Carter will show up November 10th to argue Heath and Smylie. It would at least send a signal to the court that the case is especially important to the State. Has he ever argued a case? That question is not rhetorical. I have no idea.

Smylie Transfer Brief

Joe Cleary, Smylie's lawyer, has kindly given me permission to make his transfer brief available (here in RTF format). Because it is a transfer brief and because it was filed on July 15th, when Blakely jurisprudence, especially in state courts, had not yet reached nearly full bloom, the arguments made are certainly not the end of the matter.

Regrettably, I still have not acquired any Blakely briefs filed by the State.

Cowens: Conflict with Controlling Precedent?

Judge Sullivan, together with Judges May and Vaidik, refused in Cowens (quoted here yesterday) on rehearing to "extend" Blakely to the imposition of discretionary consecutive sentences under Indiana Code 35-50-1-2(c). The question I have is how to reconcile that refusal with the following, which appears to be controlling precedent of the Indiana Supreme Court:

In order to impose consecutive sentences, the trial court must find at least one aggravating circumstance. See Morgan v. State, 675 N.E.2d 1067, 1073 (Ind. 1996). The same aggravating circumstance may be used to both enhance a sentence and justify consecutive terms. See, e.g., Taylor v. State, 710 N.E.2d 921, 925 (Ind. 1999); Brown v. State , 698 N.E.2d 779, 781 (Ind. 1998). Here, however, because the trial court found the aggravating and mitigating circumstances to be in balance, there is no basis on which to impose consecutive terms. Accordingly, this case is remanded to the trial court with direction to impose concurrent sentences on all counts.

Marcum v. State, 725 N.E.2d 852, 864 (Ind. 2000) (emphasis added); followed by Wentz v. State, 766 N.E.2d 351, 359 (Ind. 2002). (Both opinions were written by Justice Boehm.)

Obviously the question is not academic for Cowens personally. Nor is it academic for the argument in Smylie coming up on November 10th.

Two Blakely Cases: Cowens & Holden

I have word of two Indiana Blakely cases today, one decided last week, the other today. The former, in an unpublished rehearing opinion, flatly says that Blakely does not apply to statutorily discretionary consecutive sentencing. The latter appears to follow the line of Carson and Bledsoe, essentially equating "criminal history," including juvenile adjudications in this case, with the Almendarez-Torres "fact of a prior conviction" exception.

In neither case is there even a whiff of waiver.

There are several other aspects of both cases that I will try to comment on later tonight after a certain four-year-old dictator has dictated his last for the day and after Pedro and the Red Sox have evened the score.

---

Cowens v. State

I just have news that the Court of Appeals decided another Blakely case on October 6th in another unpublished opinion: Joshua Cowens v. State, Court of Appeals No. 01A02- 0312- CR- 1048 (Ind. Ct. App. October 6, 2004) (on rehearing) (mem.). I do not have the case, but I do have a quote:

Joshua Cowens has filed a petition for rehearing alleging that the imposition of consecutive sentences in this case was in violation of the holding in Blakely v. Washington, 124 S.Ct. 2531 (2004). Concluding that Blakely is not implicated in the situation where a trial court orders consecutive sentences based upon its discretion as granted by Indiana Code § 35-50-1-2(c), we decline to extend the holding of Blakely to consecutive sentences.

(Emphasis added). Judge Sullivan wrote the opinion, with Judges May and Vaidik concurring. I'm doing what I can to get a hold of the opinion.

Since I wrote the above, I have received the opinion from a great Blog Helper, and the above quote is the opinion--minus the line "Judgment affirmed." The original opinion came out three days before Blakely, on June 21st.

Indiana Code § 35-50-1-2(c) provides in its entirety:

Except as provided in subsection (d) or (e), the court shall determine whether terms of imprisonment shall be served concurrently or consecutively. The court may consider the aggravating and mitigating circumstances in IC 35-38-1-7.1(b) and IC 35-38-1-7.1(c) in making a determination under this subsection. The court may order terms of imprisonment to be served consecutively even if the sentences are not imposed at the same time. However, except for crimes of violence, the total of the consecutive terms of imprisonment, exclusive of terms of imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.

---

Holden v. State

The same three judges who decided Cowens last week issued a published opinion today, also written by Judge Sullivan, saying that Blakely at least "superficially" applies to sentence above the presumptive. Holden v. State, Court of Appeals No. 15A05-0310-CR-532 (Ind. Ct. App. October 13, 2004).

Holden alleges that none of the aggravating factors found by the trial court were found by the jury or admitted by him. However, we note that the trial court concluded that Holden’s significant and consistent adult and juvenile criminal history was an aggravating factor. According to Blakely, this factor need not be determined a second time by a jury. Id. at 2536. From Holden’s criminal history, the trial court also determined that the type of offenses were increasingly becoming more severe. This conclusion also does not trigger a Blakely analysis. Finally, the trial court took notice of the fact that Holden had just committed another bank robbery in Switzerland County and that he pleaded guilty to that charge. Once again, this aggravator is outside of the scope of Blakely review.

The other aggravating factors relied upon by the trial court include a recitation of facts relating to the particular robberies for which Holden was tried and what they demonstrated about Holden’s character, and the trial court’s determination that Holden was in need of rehabilitative treatment best provided by commitment to a penal facility. See footnote. Because Blakely is superficially applicable to a sentence greater than the presumptive, it would appear that the finding made with relation to the facts of the crime could be violative of the Blakely holding because it does not appear that the jury made findings with regard to the specific facts found and there is no allegation that Holden admitted to those facts. However, because the trial court relied upon three different aggravators, we conclude that there is no reasonable possibility that the complained of aggravators contributed to the sentence. Cf. Chapman v. California, 386 U.S. 18, 23 (1967) (federal constitutional errors are harmless when there is no reasonable possibility that that the evidence complained of might have contributed to the verdict).

In his claim that the trial court had considered an improper aggravator, Holden challenges the trial court’s consideration of the fact that Holden had supplied drugs to his cohorts in crime as enticement to rob the banks. Given that we have concluded that the fact is one of those facts related to the crime upon which we do not need to rely to uphold the sentence, we do not address Holden’s claim of error with regard to that aggravator.

(Emphases added). The panel makes the following comments in two footnotes:

It is our conclusion from this discussion in Blakely that the “statutory maximum” sentence of that case equates with the presumptive sentence called for by the applicable Indiana statute.

and

The trial court’s use of the aggravator that Holden was in need of rehabilitative treatment which could be provided by commitment to a penal facility is improper because it was merely a “perfunctory recitation” of an aggravating factor. See Ingle v. State, 766 N.E.2d 392, 395 (Ind. Ct. App. 2002), trans. denied. While the trial court did state that this was based upon Holden’s criminal history, it did not explain why the circumstance was aggravating, i.e. that prior attempts at rehabilitation had proved unsuccessful.

This case was fully briefed at the beginning of June and was transmitted to the court for a decision. On July 22nd, Holden filed a motion to for leave to file an amended brief; the court granted the motion quite swiftly on August 2nd.

Off to the Sweet (?) Hereafter

Blogging is going to be (very) brief for the next couple of weeks while I am a full-time poppa to my four-year old. Unlike the big-time bloggers, I don't have anyone to take over or guest-host for me. And all in all, there's lots to be said for long afternoons in the park and making pumpkin bars.

For anyone who has not seen the Blakely post on Marcia Oddi's site today here--it is worth a look, a read, and a listen. It includes a link to a Blakely story on NPR's Weekend Edition Sunday--Eric Vos reading a letter he wrote to NPR in response to an earlier story. The much-noted perversity of Blakely becomes starkly apparent when you place Vos's point--that the Sentencing Guidelines put too much power in the hands of prosecutors, who are not trained, he says, to exercise discretion, by taking it out of the hands of judges, who are so trained--with a comment of Justice Scalia's at the Booker / Fanfan arguments as reported in a story on Bloomberg News (here): "The reason for a jury trial is that we don't trust judges."

If the legislative response to Blakely is not to be sentencing reform writ large, but technical fixes in the form of mandatory minimum sentences and simply taking the top off presumptive sentences, in the Indiana context, Blakely is not going to be any cure for the disease identified by Blakely's author and my occasional hero. That is, Blakely World is likely to have a relatively short existence, however fascinating the current promise of its unexplored geography. And I think there is some reason to fear the Blakely Hereafter.

The Sunday Pickle

Smylie: 12 Questions

Smylie is going to present the Indiana Supreme Court with the "usual" Blakely problem of an enhanced sentence and the somewhat less "usual" problem of consecutive sentences. Smylie pled guilty to two counts of Child Solicitation (Ind. Code § 35-42-4-6), a Class D felony (Ind. Code § 35-50-2-7). He was sentenced to the presumptive sentence of a year and a half on the first count and an enhanced sentence of two years on the second count. The trial court ordered the sentences served consecutively.

The aggravating circumstances, which I am taking from the transfer brief, were:

• A pattern of criminal activity;
• The effect of the crime on the victim;
• Smylie was in a position of trust with the victim; and
  
• The imposition of a reduced sentence would depreciate the seriousnous of the crime.

From the transfer brief, I understand that the Court of Appeals concluded there was only one valid aggravating circumstance of the four: Smylie was in a position of trust with the victim. So the setup for the Supreme Court seems to be that there is one valid aggravating circumstance supporting both the enhanced sentence in second count and the consecutive sentences. The Supreme Court did not grant transfer and specifically order oral argument on the Blakely issues to spend any time saying the other aggravators were valid.

There appear to be two mitigating circumstances in play:

• Smylie enrolled in a counseling program;
• Incarceration would imposed undue hardship on Smylie's three dependent children.
  

Here's my list, then, of the Blakely issues this case raises:

1. Does Blakely affect Indiana's presumptive sentencing scheme?
2. If Blakely applies, did Smylie waive any protection afforded by Blakely by not raising an Apprendi or other objection when entering his plea?
3. If Smyle did not waive the protections of Blakely, are Blakely errors going to be treated as Indiana "fundamental error" as the unpublished opinion of the Court of Appeals in Baehl suggests?
4. If Smylie did not waive Blakely's protections, does Blakely prohibit the use at all of aggravators unenumerated by statute, because the use of such aggravators amounts to the creation of common law crimes?
5. If the answer to 4 is "No", may the "position of trust" aggravator, found by a judge by no standard of proof at all, support the six-month enhancement of the second court?
6. Similarly, may the "position of trust" aggravator, not found by a jury beyond a reasonable doubt, support the imposition of consecutive sentences?
7. If the answer to 5 or 6 is no, what is the remedy?
8. If the remedy is either resentencing by the Supreme Court or a remand to the trial court for resentencing, may aggravators offensive to Blakely be considered at all in deciding whether to impose a presumptive sentence under Indiana sentencing law?
9. If the answer to 8 is no, must either the Supreme Court or the trial court on remand consider any mitigating circumstances supported by the record to decide whether a mitigated sentence is required?
10. If the remedy is remand to the trial court for resentencing, does treatment of aggravating circumstances as "elements" create a double-jeopardy bar, under either the federal or Indiana Constitutions, to trying the Blakely-offensive aggravators?
    
11. If the answer to 10 is no, may the trial court empanel a sentencing jury and give the State the opportunity to "charge" and to try aggravating circumstances, even though there is no Indiana statutory authority for post-conviction charging instruments or non-capital sentencing juries?
12. If the answer to 11 is yes, may the trial of the aggravators proceed where the judicial branch, through a probation department, has already investigated on its own the facts that it is now the State's duty to charge and prove to a jury beyond a reasonable doubt?

Anyone see others?

Strictly speaking, the Supreme Court will only have to deal with questions 1-7. (Strictly speaking, if the court decides Blakely does not affect Indiana's sentencing scheme, it will be 1 and done.) If the court decides that Blakely affects this case and that Smylie hasn't waived the Blakely issues, and if it is going to undertake resentencing itself, then it will also have to deal with 8 & 9.

Questions 10-12 raise issues that might more properly be subject to a later appeal after a remand to the trial court for resentencing and litigation of the issues there. But both the Supreme Court and the Court of Appeals quite frequently drop helpful hints (never an advisory opinion, mind you) about what a trial court should do when a case is remanded.

The answer to 9 will be especially interesting, because it potentially presents, I think, the Indiana version of the federal Guideline-severability problem. If the General Assembly had known that a judge would not be able to consider aggravating circumstances, at least in some situations, would it still have provided for reduction of sentences for mitigating circumstances? If the answer is no, what then?

The importance of what the Supreme Court does in these cases can hardly be overstated. What the court decides, probably shortly after opinions in Booker and Fanfan issue, will necessarily have decisive influence on the next session of the General Assembly.

Heath & Smylie Arguments: Less is More?

According to the docket sheets for the cases, on October 4th, the Supreme Court cut the time for the oral arguments in Heath and Smylie on November 10th from 2 hours, half an hour a side, to an hour and twenty minutes, 20 minutes a side.

So let me get this straight. The Supreme Court is hearing oral argument in two NFP cases on questions of first impression in Indiana arising out of Blakely; there has been no briefing on the merits; and they have now cut the time for the arguments by a third.

On November 9th and 10th, the Washington Supreme Court is hearing oral argument in six Blakely cases (as reported here on SL&P).

Which court more appears, at least, to care about what the lawyers have to say?

Rule Amendment to 3.3(a): Say What?

This may or may not be news, but the orders amending the various rules that go into effect on January 1, 2005 can be found here. One of the more interesting amendments is also apparently the subject of the most contention among the justices. And well it might be.

While very few of us were looking, old Professional Conduct Rule 3.3(a)(4) has become 3.3(a)(3) and has taken on a striking new look:

(a) A lawyer shall not knowingly . . .

. . .

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

The underlined portions are the additions. The amendment itself can be found at page 88 of the PDF file containing the order (here). (Here is the link to the Googlized HTML version of the PDF file, which for me takes even longer to load than the PDF file.)

It was a 3-2 decision to amend the rule as above, with Chief Justice Shepard and Justice Dickson dissenting. Chief Justice Shepard wrote a dissent in which Justice Dickson joined. It appears beginning on page 147 of the PDF file containing the order (again, here). It has not shown up on online databases or Access Indiana anywhere that I can find other than buried at the end of the order. Although I am probably not going to comment further on the rule or the dissent any time soon, they are both interesting enough that, having reproduced the rule amendment in its entirety, I will also reproduce the dissent in its entirety below.

---

SHEPARD, Chief Justice, dissenting.

Today’s revisions to the Rules of Professional Conduct are the product of prodigious and thoughtful effort by leaders of the American Bar Association, by the Indiana State Bar Association, and by this Court, to name a few of those who have labored at the task. In the main, these new standards for lawyer conduct will well serve the courts, the profession, and the public, and I take a sense of pride in their adoption. I think the profession and this Court have taken but a single wrong turn.

Since the American Bar Association first issued canons of ethics in 1908, and for at least that long in Indiana, a lawyer representing the defendant in a criminal case has had the same obligation that all of us lawyers have to promote the truth before the judge or jury. Lawyers have long thought that it both demeaned the profession and damaged the role of courts to present false evidence.

That now changes. Today’s amendments to Rule 3.3 add a striking command to existing practice by saying: “A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.” Put another way, lawyers who try cases are generally called upon to decide what evidence to present and how to present it, except that lawyers will now be obliged to put on the stand a client the lawyer believes will commit perjury. I think this is a bad idea for the profession and for the cause of justice.

The Court has not changed this rule because it is compelled to do so. The Supreme Court of the United States has told us in unmistakable terms what the Constitution means on this very point: “Whatever the scope of a constitutional right to testify, it is elementary that such right does not extend to testifying falsely.” Nix v. Whiteside, 475 U.S.157, 173 (1986). Thus, a majority of my colleagues have chosen this path because they believe the system of justice will be improved by it. I do not.

The bench and bar are currently much focused on building public trust and confidence in the courts and the legal profession. A decision to compel lawyers to put before juries testimony they believe is perjured can only detract from those efforts.

This change will also cause an important shift in the relationship between the criminal defendant and the defendant’s lawyer. Under the present rule, the lawyer who works to dissuade a client from testifying falsely possesses some considerable clout in the discussion because it is presently the lawyer, in the end, who decides whether to call the client to stand. Under the new rule, the client will know that this is not the lawyer’s call at all. If the client insists, the lawyer will be bound by the rule to assent and assist.

Moreover, the very dilemma that now proves so difficult for defense lawyers will be made even more difficult. Under the present rule, the lawyer who must contend with whether she “knows” testimony is false (and therefore must not present it) or whether she merely “believes” it is false (and therefore may present it or not) is free to make the decision to go forward based on her assessment of quite a number of considerations. These might include her own assessment of whether the client’s testimony may help his cause or actually seal his fate, for instance. The new rule requires the lawyer to make this decision based on a single consideration--does the lawyer “know” the client’s testimony will be false. It seems to me that the very dilemma that has led the defense bar to ask for this change will be rendered even more difficult by the change itself.

Furthermore, I think that this amendment places defense lawyers on a different footing than prosecutors in a way that will be unhelpful to their work. For a period of some twenty years, prosecutors were in the habit of reading to jurors from an opinion authored by Justice Byron White, speaking for three members of the Court, as follows:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. … If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. … In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

United States v. Wade, 388 U.S. 218, 256-58 (1967) (White, J., concurring in part and dissenting in part) (footnotes omitted). Public defenders and other members of the criminal defense bar properly disliked the use of this quotation and asked us to disapprove its use, which we ultimately did. Miller v. State, 623 N.E.2d 403 (Ind. 1993).

The Court’s decision not only to condone the use of perjury but to require defense lawyers to use it at the client’s option takes us back a step by creating a differential between prosecutors and defenders as officers of the court dedicated to pursuing the truth.

Dickson, J., joins.

---

I had no idea that the Indiana defense bar had been asking for such a change. At the moment, I can't think of a reason it would have; and the implications of this change are almost as mind-boggling as Blakely. I hardly know where to start thinking about it.

[A very few minutes later]
Yes, I do know where to start thinking about it: What would Justice DeBruler have thought? My guess is "Not much." Justice DeBruler, are you out there?

Prior Conviction Exception: Possibly Short-Lived

The exception for "the fact of a prior conviction," best known from Apprendi and repeated in Blakely, has been widely discussed for some time as a likely casualty in a future case. Doug Berman at Sentencing Law & Policy put up an article in this post yesterday by Professor Rory K. Little of the Hastings College of Law in San Francisco. The article appeared in Monday's Daily Journal. (I have not looked to see what the Daily Journal is.) I don't think I'm violating any copyrights by quoting the paragraphs about the exception and its likely future:

Indeed, it seems likely that if Blakely is applied in Booker/Fanfan as most expect, two other precedents also may soon be overruled. Harris v. United States, 536 US 545 (2002), upheld statutory "mandatory minimums" after Apprendi, even though judge-found facts are often used to trigger them.

And in Almendarez-Torres v. United States, 523 US 224 (1998), the court ruled that the fact of a prior conviction need not be proved to a jury beyond reasonable doubt, even if it increases a statutory maximum.

That's the 5-4 decision in which Justice Thomas initially voted oppositely to Justice Scalia; but in Apprendi Justice Thomas switched and noted the "error" of his Almendarez-Torres vote. Unless Booker/Fanfan produces a surprising limitation on Blakely, watch for Harris and Almendarez-Torres also to go down. Defendants should be sure to preserve these issues.

(Emphasis added).

Street v. State: Laches?

I have been working on a longer post about yesterday's contempt case handed down by the Court of Appeals, In re the Finding of Contempt against Troy Cudworth. That post is not ready yet for prime time. Fascinating case, though, contrary to all appearances--and not even mostly because it mentions Blakely in a footnote for no apparent reason.

Kitty Liell has provided me with the NFP decision of the Court of Appeals in Street v. State (here) that Marcia Oddi mentioned on the Indiana Law Blog here a while ago, and which I mentioned in this previous post, surprised that the reversal of a murder conviction would come out NFP. I probably should not have been surprised or unsurprised. I don't read the NFP decisions except when I am waiting around at the State Public Defender's Office for some reason. (There is always a nice stack of the recent ones and then binders for the more elderly.) For all I know, the Court of Appeals reverses murder convictions NFP all the time, although it seems unlikely.

Street is the reversal of an order denying post-conviction relief on the facts. That is a very rare animal in itself. Despite uncontradicted expert opinions that Street was not competent to stand trial, the judge found Street competent to enter a guilty plea to murder and attempted murder, which the judge accepted.

Other than the stunning result, the thing about the opinion that most caught my attention was the State's claim of laches. I have not spoken with Kitty about what happened below, but it looks like the post-conviction court denied Street's petition on its merits--else what merits would the Court of Appeals have had to review? The Court of Appeals says nothing about the State having cross-appealed its loss on its laches defense. Why did the Court of Appeals take up the issue at all?

More importantly, why should laches even be available as a defense when a defendant is found to have been incompetent to plead in the first place? How can someone who was incompetent to stand trial or plead ever delay unreasonably in seeking post-conviction relief?

Blakely Waivers: A Great Brief

Waiver, I am told, has been a central argument in the State's Blakely briefs. This should not be surprising. When as a DAG I had trotted out waiver in an answer brief, the reply brief came back, beginning: "The Four Horsemen of the Attorney General's Office: Waiver, Procedural Default, Res Judicata, and Law of the Case."

The Federal Defender for the Northern District of Texas filed an amicus brief in Booker and Fanfan dealing exclusively with waiver. It is here on Sentencing Law & Policy. (It can be viewed in Googlized HTML here.) Boykin, Johnson v. Zerbst, Duncan v. Louisiana, In re Winship . . . all make a prominent appearance. Which only goes to show the importance of a comment made on SL&P some time ago: "This really isn't about the sentencing guidelines or determinate sentencing at all . . . its basic criminal law and procedure and basic constitutional law." (Here's the full comment).

The central point of the Texas brief is summed up in the following from pages 5 and 6 of the brief:

In sum, neither Almendarez-Torres nor Apprendi condoned a defendant waiving constitutional rights simply by admitting essential facts that would result in an increase in the relevant statutory maximum sentence, but that are not related to the fact of a prior conviction. Thus, this Court has not sanctioned such a “waiver” and it cannot reasonably be argued that a defendant can waive Apprendi rights by simply admitting those facts, unrelated to a prior conviction, that increase the defendant’s relevant statutory maximum sentence. Cf. Apprendi, 530 U.S. at 488; Jones, 526 U.S. at 249; In re Winship, 397 U.S. 358, 364 (1970); Johnson, 304 U.S. at 465. . . .

It is beyond peradventure that a mere factual admission does not fulfill the requirements of a voluntary and knowing waiver of Apprendi rights.

(Some citations omitted) (footnote omitted). And footnote 9 on page 6 provides a point so important that I am not sure why it is in a footnote:

The Court has clearly held that “‘[p]resuming waiver from a silent record is impermissible.’” Boykin v. Alabama, 395 U.S. 238, 242 (1969) (quoting Carnely v. Cochran, 369 U.S. 506, 516 (1962)). Indeed, a simple admission does not “speak” to whether the person has knowingly and voluntarily waived their constitutional rights. Cf. Boykin, 395 U.S. at 242-43.

In addition to providing a ready-made answer to the State's appellate arguments regarding waiver, the brief also provides a good platform to think about strengths and weaknesses of the two waiver forms I have that are apparently in use in Lawrence (here) and Marion (here) (from the Judicial Conference Materials) Counties, and of the Howard County memo from Judge Murray about post-Blakely procedure in her court (here). (Judge Murray's memo says, "Note that Blakely exempts . . . facts admitted by the defendant . . . .")

Blakely Briefs in Word

I have reacquired the Word version of Stacy Uliana's reply brief in Traylor v. State. It's here. Her amended opening brief, adding Blakely arguments, is here. For anyone having to argue Blakely (isn't that just about everyone?), these are at least excellent places to start . . . and maybe to finish.

I am still hoping to acquire at least scanned versions of State Blakely briefs. From Stacy's briefs, I understand that waiver plays a prominent role in the State's approach.

Aggravators & Common Law Crimes

I was gobsmacked some days ago when I read in the Vera Institute September publication about Blakely (here) that the use of aggravating circumstances not specifically enumerated by statute might amount to the creation of a common law crime. (See page 6, first column, right around footnote 30). If aggravating circumstances are to be treated as the functional equivalent of elements, that is absolutely true. This is yet another example of how I keep being surprised by Blakely and my own failure to think through all of its implications.

The Vera Institute's suggestion appears to have received some support yesterday during the government's rebuttal as reported on BlakelyBlog (here):

First, [Clement] noted again that a ruling for the Respondents would mean overturning Mistretta. Such a ruling would mean that the USSC was defining crimes, and under Mistretta that is not what the USSC either can do or in fact does.

It was similarly reported by Doug Berman (here):

[Clement] also ultimately asserted that the key precedent really at stake was Mistretta, as he suggested that Mistretta itself would have to be reversed because the respondent’s argument would essentially mean that the US Sentencing Commission has functionally created elements for thousands of new federal crimes.

In the same post, Professor Berman adds his own answer to Clement's point in rebuttal:

But I think Clement is wrong when saying that extending Blakely to the federal guidelines would essentially overrule Mistretta. This claim is based on the assertion that extending Sixth Amendment rights to guideline factors would turn them into de facto elements. But because such guideline factors require judges to impose longer sentences, they truly are already de facto elements (and this is why Ex Post Facto law limits the application of new guidelines to old cases).

In Indiana, common law crimes were abolished by statute at least as early as 1843. Doe v. Methodist Hosp., 690 N.E.2d 681, 689 (Ind. 1997). Only the General Assembly can define crimes. Indiana Code § 1-1-2-2 provides: "Crimes shall be defined and punishment therefor fixed by statutes of this state and not otherwise."

Whatever the Sentencing Commission does or doesn't do, it looks awfully like Indiana trial judges, when they enhance sentences post-Blakely based on aggravating circumstances unenumerated by statute (see the catch-all aggravator provision in § 35-38-1-7.1(d), which provides, "The criteria listed in subsections (b) and (c) do not limit the matters that the court may consider in determining the sentence") are quite probably doing the forbidden thing of defining crimes. (Recall Justice Scalia's discussion, in response to Breyer's dissent, about 17-element robbery charges in footnote 12.)

If this is analysis is correct, then that is the end of the "especially heinous," "position of trust," and other aggravators of the same, non-statutory ilk. At least until the General Assembly gets (very) busy next year.