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did not waive the protections of Blakely, are Blakely errors going to be treated as Indiana "fundamental error" as the unpublished opinion of the Court of Appeals in Baehl suggests?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.