Trusley v. State: Admissions & Sentencing Juries

The Court of Appeals decided at least one Blakely case today. (I haven't looked at the other decisions yet.) And the argument in Indiana has begun over what constitutes an "admission" for Blakely purposes. The case is Trusley v. State, Court of Appeals No. 41A01-0403-CR-109 (Ind. Ct. App. November 24, 2004). Judge May wrote for herself and Judge Sullivan. Judge Vaidik dissented. The crux of the argument is set out in this snippet from the majority opinion:

The State asserts, without explanation or citation to authority, that Trusley’s admission at the guilty plea hearing that she was the victim’s day care provider and her admission at the sentencing hearing that she provided daycare services amounts to an admission to the facts supporting the finding as an aggravating factor that Trusley was in a position of trust with respect to the victim and his family. We decline to hold that a defendant’s admission she is a day care provider, without more, necessarily substitutes for a jury’s determination she was in a position of trust with respect to the victim to such an extent that sentence enhancement is warranted.

(Footnote omitted). Judge Vaidik's dissent can be boiled down fairly, I think, to this snippet:

Because Trusley admitted that she was the victim’s daycare provider and that she had custody of him at the time of his death, it is hard to imagine what other information would be necessary in order to establish that Trusley was in a position of trust with the victim. Because Trusley admitted to facts underlying the position of trust aggravator, a jury did not have to find that this aggravator existed.

More importantly, perhaps, is a footnote giving the first appellate blessing that I know of to sentencing juries in Indiana, despite the lack of any statutory authority for such a creature:

Trusley asserts she cannot be resentenced by a jury; therefore, on remand the trial court may sentence her to no more than the presumptive term. She notes Ind. Code § 35-38-1-3 provides “Before sentencing a person for a felony, the court must conduct a hearing to consider the facts and circumstances relevant to sentencing,” and further notes the legislature has provided for a jury hearing in certain habitual offender proceedings, see Ind. Code § 35-50-2-8(g) and 35-50-2-10(e). From this she reasons “The language of these statutes is clear--an Indiana trial court can only convene a jury for sentencing purposes in capital cases and habitual phases in non-capital cases.” (Appellant’s Reply Br. at 8.)

Trusley directs us to no statute or case law that explicitly states a trial court may not convene a jury for sentencing proceedings that do not involve habitual offenders. We decline to hold that the legislature’s reference to jury hearings in habitual offender proceedings must necessarily be read to prohibit jury involvement in any other sentencing proceeding. We must interpret a statute in a way that renders it constitutional. Dep’t of Revenue of State of Ind. v. There To Care, Inc., 638 N.E.2d 871, 873 (Ind. Ct. App. 1994), trans. denied. When a statute can be construed to support its constitutionality, that construction must be adopted. Id. Trusley’s interpretation of Ind. Code § 35-38-1-3 as prohibiting jury involvement in the factfinding process for determining the existence of aggravating circumstances would almost certainly render Ind. Code § 35-38-1-3 unconstitutional as violative of the Blakely standard. We therefore decline to adopt that interpretation.

This is very reminiscent of Justice Dickson's suggestion during the Heath and Smylie arguments that courts could construe "shall" to mean "may" to save a statute. In this case, Indiana Code § 35-38-1-3(3) specifically says that it the "court" that is to do the finding of aggravating and mitigating circumstances. So if "shall" can become "may," I guess "court" can become "jury."

Notably, there is nothing facially unconstitutional about § 35-38-1-3. A court may constitutionally find all of the aggravating circumstances it likes. Blakely merely restricts what a court may do with aggravating circumstances it, and not a jury, has found. So the Court of Appeals has reinterpreted a statute that is constitutional on its face in order to save a particular application of the statute.

I really invite comments from anyone who has seen any other court do something like this. This is unique in my experience.

State v. Maestas: Double Jeopardy & Resentencing

On Monday, the Washington Court of Appeals issued an opinion dealing with the double jeopardy problem potentially posed by Blakely on remands for resentencing. As Judge Posner initially noted at the end of his Booker opinion immediately after saying that a sentencing jury on remand was a possibility: "Of course this will not work if the facts that the government would seek to establish in the sentencing hearing are elements of a statutory offense, for they would then have to be alleged in the indictment, and to re-indict at this stage would present a double-jeopardy issue."

So here is how the Washington Court of Appeals handled the "aggravating circumstance as element" problem in State v. Maestas, No. 52977-3-I (Wa. Ct. App. Nov. 22, 2004), minus footnotes, finally rejecting Maestas's double jeopardy claim:

---

Thus, Maestas focuses his argument on the second of the three exceptions to the general rule that double jeopardy does not apply to non-capital sentencing. He argues that the aggravating sentencing factors act as elements of a greater substantive crime because they increase punishment to which he is exposed. He argues further that these aggravating sentencing factors constitute an element of a greater offense for purposes of the right to jury trial and constitute a new offense for purposes of double jeopardy. We are unpersuaded that these arguments support the view that double jeopardy is implicated here.

First, Maestas relies on language in Sattazahn v. Pennsylvania for the proposition that there is no reason to distinguish between what constitutes an offense for double jeopardy purposes under the Fifth Amendment and what constitutes an offense for the right to trial by jury under the Sixth Amendment. But that reliance is misplaced because that portion of the opinion on which he relies only expresses the views of a plurality of the United States Supreme Court.

Second, even if we assume for purposes of argument that the aggravating factors here were part of a greater substantive crime, double jeopardy would still not be implicated. A similar argument was made and rejected in a recent case before the Idaho Supreme Court in State v. Lovelace. There, the trial court found that double jeopardy principles barring subsequent trial on a greater crime or after acquittal of a greater crime did not apply. The court in Lovelace noted that in Sattazahn, a death penalty case, the supreme court stated that "[i]n the post-Ring world, the Double Jeopardy Clause can, and must, apply to some capital-sentencing proceedings [and that i]f a jury unanimously concludes that a State has failed to meet its burden of proving ... aggravating circumstances, double-jeopardy protections attach to that 'acquittal' on the offense of 'murder plus aggravating circumstance(s)' on remand.' But in the case of Lovelace, the sentencing judge had found one or more aggravating circumstances. Thus, there was no acquittal of a greater offense at all and jeopardy did not attach.

Here, as in Lovelace, the sentencing judge concluded there was sufficient evidence to find aggravating circumstances. Thus, Maestas cannot now claim that he was acquitted of any greater crime such that double jeopardy would be implicated.

Maestas also relies on United States v. Patterson for the proposition that jeopardy attaches when the trial court accepts a guilty plea. In Patterson, the trial court accepted the defendant's guilty plea to manufacturing marijuana but left the determination of the number of marijuana plants for sentencing. The trial court later accepted the guilty plea but rejected the plea agreement. Patterson did not challenge his plea, but the trial court vacated it on the State's motion. On appeal, the court observed that where a defendant challenges his plea and it is set aside, the general rule is that double jeopardy is not implicated by a subsequent prosecution on the same charge. But because Patterson had not challenged the plea, the trial court was not free to vacate it. Jeopardy attached when Patterson entered his guilty plea and did not appeal it.

That case is not helpful here. No one seeks to set aside the guilty plea. All that is at issue is the sentence. And for the reasons that we have already stated in this opinion, resentencing does not fall under any of the exceptions to the general rule that double jeopardy is not implicated in a non-capital case.

In sum, we conclude that double jeopardy is not implicated in the resentencing of Maestas on remand. Should the court choose to impose an aggravated exceptional sentence following procedures that comply with the dictates of Blakely, double jeopardy does not bar doing so.

Blakely Tops 1000

The blog lights have been out for too many days. I have, at least, had the opportunity to do some reading and maybe even some thinking. Obviously the big news was reported over on Doug Berman's site, Sentencing Law & Policy. The U.S. Sentencing Commission's 15-year review of the Guidelines is out. Doug's tantalizing summary is here and the full report is available in this post.

Blakely topped 1,000 cases yesterday or the day before. At about eleven last evening, I came up with 1,020 cases.


The California Court of Appeals (Sixth District) recently decided a case summarizing nicely the waiver debate in California: People v. Ackerman, 2004 Cal. App. LEXIS 1938 (Cal. Ct. App. November 18, 2004). From a look at footnote 2, it is really not much of a debate. The single California case finding Blakely claims forfeited by the failure to raise the issue in the trial court is People v. Sample, the only state case relied upon by the State in Heath and Smylie for its waiver argument. (I discussed the "wall of authority" contrary to Sample here in the run-up to the oral arguments.)

What is arguably new about Ackerman is the focus on the reason not to apply California's usual waiver rule:

In our view, the waiver rule from Scott does not apply to claims of Blakely error. In Scott, the court reasoned that its waiver rule was necessary to facilitate the prompt detection and correction of error in the trial court, thereby reducing the number of appellate claims and preserving judicial resources. However, Scott's pragmatic rationale does not support the application of the waiver rule here. Prior to Blakely, California courts and numerous federal courts consistently held that there was no constitutional right to a jury trial in connection with a court's imposition of consecutive sentences.

(Citations omitted).


Mike Limrick in his first article in April 2003 about Apprendi's application properly pointed out that the Court of Appeals foreclosed Apprendi challenges to Indiana's non-capital sentencing scheme in a footnote in Parker v. State, 754 N.E.2d 614, 618 n.7 (Ind. Ct. App. 2001), where the court said: "A Class A felony has a sentencing range from a presumptive thirty years to a maximum of fifty years. See Ind. Code § 35-50-2-4. Parker received forty years with a five-year enhancement. The application of the enhancement for use of a handgun in Parker's case did not, as a result, increase the maximum penalty for his offense." That the claim was foreclosed might be why defendant's should not be penalized for "failing" to raise it before Blakely.

And a final note for today. The Court of Appeals has decided seven criminal cases in the last two days. Not a single one has a breath of or about Blakely. I have thought that Blakely arguably affects almost any criminal case. I wonder if the Court of Appeals is holding on to its Blakely cases now that Booker, Fanfan, Heath, and Smylie are all on the very near horizon.

Transfer List

Marcia Oddi at the Indiana Law Blog has posted the week's transfer list here. No transfer for anyone. I can't divine anything interesting for Blakely purposes from the denials.

Thanks, Marcia.

All Roads Lead to Blakely?

There were, almost mercifully, no Blakely related cases from the Indiana Courts today. The Seventh Circuit did affirm the denial of habeas relief for Marvin Bieghler (here), who was sentenced to death, and whom most of the appellate lawyers in Indiana know from the Indiana Supreme Court’s decision affirming the denial of post-conviction relief. State v. Bieghler, 690 N.E.2d 188 (Ind. 1997). The appellate lawyers know the case because that is where, following a law review article, the Supreme Court divided up appellate ineffective assistance claims into three types: IAC for blowing an appeal altogether; IAC for waiver of an issue; and IAC for raising an issue badly. In Indiana appellate jargon, they’ve become known as Bieghler I, II, or III claims. Justice Rucker wrote an opinion relatively recently on the subject of Bieghler claims in Saylor v. State, 765 N.E.2d 535 (Ind. 2002), reh’g granted on other grounds, 808 N.E.2d 646 (Ind. 2004). (For some reason, the hyperlink to the original opinion in the Supreme Court permanent web archive produces an empty document. Sorry. Not my fault.)

But all roads seem to lead to Blakely. What happened in and with Saylor may provide some insight into the current situation in Indiana. The original opinion in Saylor was issued on March 20, 2002. Saylor raised an Apprendi challenge to Indiana’s death penalty statute. The Indiana Supreme Court was having none of it, relying on Walton v. Arizona:

In Walton v. Arizona, 497 U.S. 639 (1990), the United States Supreme Court addressed a sentencing scheme similar to Indiana's. In Arizona, after a jury finds a defendant guilty of first-degree murder, the trial court alone conducts a sentencing hearing to determine whether the sentence should be death or life imprisonment. Id. at 643. During the course of the hearing, the court determines the existence of any statutory aggravating or mitigating circumstances. Id. The court can impose a sentence of death only if it finds that one aggravating circumstance exists and that there are no mitigating circumstances sufficiently substantial to merit leniency. Id. at 644. Finding this capital sentencing scheme constitutional, the United States Supreme Court explained that it is well settled that the existence of an aggravating circumstance that renders a defendant eligible for the death penalty may be determined by a judge rather than a jury. Id. at 647-48. In Apprendi, the United States Supreme Court was careful not to overrule Walton. The Court explained:

Finally, this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death. Walton v. Arizona, 497 U.S. 639, 647-49 (1990).

Apprendi, 530 U.S. at 496-97.

Criticizing the majority opinion, four justices in dissent insisted that Apprendi effectively overruled Walton, id. at 538; and one justice, in a separate concurring opinion, declared that Walton could be re-examined "another day," id. at 523. In any event, although Apprendi may raise doubt about the continued validity of Walton, until it is expressly overruled, Walton is still good law. n22

Footnote 22 listed cases that had treated Apprendi’s application to death penalty statutes in the same way. Included in the list was Ring v. Arizona, the Arizona Supreme Court’s decision, together with the notation that cert had been granted.

So the court knew that a decision from the United States Supreme Court in Ring was on the way within months. Not only that, the court knew that there were five justices inclined to overrule Walton. Nevertheless, the court ploughed ahead and, sure enough, Ring overruled Walton on June 24^, 2002, after Saylor’s petition for rehearing had been filed and was still pending.

The result of the Indiana Supreme Court’s (over)eagerness was supplemental briefing on rehearing, more oral argument, and an opinion issued May 21^st of this year, more than two years after the first opinion, reversing Saylor’s death sentence on grounds superficially, at least, unrelated to Ring. I say “superficially,” because one possible interpretation is that a majority of the court decided to jump Ring, as it were, in order to be able to decide the case as it did, perfectly reasonably, in a pre-Ring world. The court would have only had to wait about three months in a death penalty case to get a decision in Ring. In the end, it waited more than two years to reverse the death sentence on rehearing on unrelated state law grounds rather than address Ring, Apprendi, and either case’s retroactivity under state law.

One sort of gets the idea that a majority of the court wanted to talk about Apprendi and, later, Ring as little as possible. Which brings me back, yet again, to Ritchie and Barker from this year. Yet again, the court avoided addressing Ring’s application to Indiana’s new death penalty statute with an eighth amendment dodge that is so (brilliantly?) murky that it would probably be hard to frame a cert petition around the decision. (That’s not entirely true, since the Ring avoidance, itself, would be easy to state in plain terms.)

So will the court wait until opinions are issued within weeks in Booker and Fanfan before deciding Heath and Smylie? Maybe. But maybe the pre-Booker/Fanfan world offers more opportunities for avoidance. That is harder to guess than what the result in Ring was likely to be. Recall that much of what caused the Federal Guidelines to fall in the Seventh and Ninth Circuits as a result of Blakely was from reading between the lines and even the dissents, especially Justice O’Connor’s. There’s no telling what two cases, nominally treating only the Federal Guidelines, might imply about state sentencing.

A final note: Tomorrow at the IU law school in Bloomington, there is going to be an event commemorating the U.S. Supreme Court decision in Hess v. Indiana, 414 U.S. 105 (1973) (per curiam). A number of the key participants is going to be there, including Gregg Hess, the petitioner who shouted, “We'll take the fucking street later (or again)” during an anti-war demonstration in Bloomington, and who was later convicted for Disorderly Conduct. I have known about the case for some years, of course, but I never knew, until I saw his picture this morning in the paper, that the guy was Gregg Hess, my travel agent for eons.

While doing research for a matter some weeks ago completely unrelated to anything BlakelyHess was the last time the Indiana Supreme Court was reversed in a criminal case by the Supremes in an opinion. (is there such a matter in criminal law?), it appeared to me that (I cannot speak for summary remands that may have occurred over the years.) And the last time the Indiana Supreme Court was reversed by the Supremes in any kind of case, excluding summary remands, was Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989).

Two things appear from this First, when the Indiana Supreme Court runs into trouble with the Supremes, it is almost always where criminal law and the First Amendment collide. (Fort Wayne Books involved state civil RICO actions following obscenity-related convictions.) But second, and more importantly, the court almost never runs into trouble.

Now that may be, recently at least, because the lower federal courts have been nipping death penalty cases in the bud with habeas relief at a rate that might be called alarming from any number of perspectives. But over the 30 years since Hess, maybe the Indiana Supreme Court has avoided trouble not by correctness, but by craft.

Natale Opinion Issued: A Preview for Indiana?

The New Jersey intermediate appellate court (the Superior Court Appellate Division) issued its decision in State v. Natale today. It is available from the New Jersey courts’ website here. (I do not know if this location will be permanent. If someone discovers later that the link is dead, please let me know, and I will try to find the case's permanent home.)

Procedurally, the Natale panel conditionally stays its opinion. The condition is that the State file a petition for certification with the New Jersey Supreme Court within 10 days.

There is a lot to digest from this opinion, and it is worth reading in its entirety. But here are the points that are perhaps most directly relevant to Blakely in Indiana.

Application of Blakely to Increased Sentences

Although the court recognizes that “Washington's statutory complex is different than the New Jersey statute,” the New Jersey statute “creates a ‘presumptive sentence’ in an offense-based sentencing structure in which aggravating and mitigating factors are used to increase or decrease the presumptive term within the only sentence range created by statute for the offense.” Slip op. at 11-12. The court also concludes that there is no “material difference for constitutional purposes” between the Washington and New Jersey statutes:

There is no doubt that the New Jersey Code of Criminal Justice permits only the presumptive sentence embodied in N.J.S.A. 2C:44-1f(1) to be imposed based on the jury's verdict. The presumptive sentence embodied in that section "shall" be imposed unless the sentencing judge finds that an aggravating or mitigating factor or factors exist and weigh in favor of a higher or lower term within the limits provided in N.J.S.A. 2C:43-6. Therefore, the presumptive sentence, on its face, "is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict." Blakely, supra, 124 S. Ct. at 2537. Stated differently, in the words of Blakely, the “presumptive sentence” is “the maximum [the judge] may impose without [making] any additional findings” not made by the jury. Ibid. “[T]he jury's verdict alone does not authorize the [enhanced] sentence” above the presumptive. Blakely, supra, 124 S. Ct. at 2538 (alterations in original).

Accordingly, we find N.J.S.A. 2C:44-1f(1) unconstitutional to the extent that it permits the trial judge to increase the presumptive sentence in the absence of jury fact-finding, based on proof beyond a reasonable doubt, of the aggravating factors on a basis other than relating to a prior conviction.

Slip op. at 13-14 (some citations omitted) (parallel citations omitted). Among the citations I have omitted, in a list of "see also" cases, are Indiana's very own Strong and Krebs. So the Natale panel appears to think New Jersey's and Indiana's "presumptive" sentencing schemes are sufficiently similar to partially rely upon the similarity.

Notably, the Natale panel did not do either of two things. It did not find the statute at issue facially unconstitutional; and it did not even suggest reconstruing the statute to avoid the statute's real and potential unconstitutional applications. Maybe I'll post about this separately later, but it seems to me that Indiana's general sentencing statutes are similar to New Jersey's at least in this one respect: none of them are facially unconstitutional, although several have quite real unconstitutional applications. (Here is the link to the Marion County Public Defender Agency's list of Blakely "impacted" statutes as submitted together with its amicus brief in Heath and Smylie.)

So, to return for a moment to the oral arguments in Heath and Smylie, and to Justice Dickson's exchange with Lorraine Rodts about reconstruing "shall" to mean "may" in all of the sentencing statutes fixing the penalties for Murder and each felony class, I have a question. May a court reconstrue a statute to save it from "constitutional infirmities," if the statute is not unconstitutional on its face? I do not think I have ever seen such a maneuver, but if anyone else has, I certainly invite a comment. I also don't think I have ever seen reconstruction of a series of statutes, no one of which is facially unconstitutional, in order to save the legislative system created by the statutes.

Consecutive Sentences

Following its own case, State v. Abudllah, and three California cases, the court "decline[s] to prohibit the imposition of consecutive sentences based on judicial fact-finding." Slip op. at 18. The reasoning with respect to consecutive sentencing in Abdullah was borrowed from People v. Sykes, a California case that was possibly the first case nationally to address the application of Blakely to consecutive sentences way back on July 28th. Abdullah says with respect to consecutive sentencing:

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 (2002) (plurality opinion).

(Parallel citation omitted.) (Abdullah follows Carson with respect to derivative criminal history, by the way.) Because Sykes and other California cases relying on it are so often cited, as in Abdullah, I think it is worth pulling out here the important paragraph about Blakely and consecutive sentencing in Sykes:

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, 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,] at 247- 248 []. 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.” (Apprendi v. New Jersey, supra, 530 U.S. at pp. 483-484, fn. omitted, italics added.) 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 apply to the decision to impose consecutive sentences.

Slip op. at 15-16. (Emphasis added) (some citations omitted) (parallel citations omitted).

Remedies

To return to Natale, the paragraph on remedies is important:

We remand to the Law Division to consider the appropriate remedy. The State shall be given the opportunity to reconsider its pre-Blakely waiver of the right to present the NERA factors on the second-degree aggravated assault to a jury. The State may also elect to try the relevant aggravating factors, previously found by the trial judge, to the jury on all convictions. If the State seeks the latter, the judge shall consider all issues raised concerning the need for a supplementary indictment before the aggravating factors are presented to the jury. We find no double jeopardy concern in these circumstances so long as the sentence is not increased.

Slip op. at 15. (Citation omitted) (footnotes omitted). So two things would appear from this. First, even in the absence of statutory authority, reindictment and presentation to a jury of the aggravating circumstances seems alright. More importantly, though, the court is not taking the "aggravating circumstances as elements" completely seriously. On the one hand, because reindictment appears to be required (New Jersey has a grand jury indictment requirement, if I understand correctly), one might think what the new indictment would have to contain are additional "elements." On the other hand, that reindictment is possible and there is no double jeopardy problem without a greater resulting sentence means that the court is not treating offense plus aggravating circumstances as a greater offense for double jeopardy purposes. If it were, the State would not be able to go back to get a "conviction" for the "greater offense," having obtained the conviction for the lesser, which remains untouched by Natale's appeal.

Waiver

There does not appear to be a word in the case about waiver.

Harmless Error Analysis

In foonote 5, the court says, "Given the [aggravating] factors used here, we decline to consider that the judge's findings are subject to a harmless error analysis." Slip op. at 15. The aggravating factors found by the trial judge the first time around were: 1) the crime was committed in an especially heinous, cruel, or depraved manner; 2) the gravity and seriousness of harm inflicted on the victim; 3) the risk that the defendant will commit another crime (not based on prior convictions or criminal history); and 4) the need for deterring the Defendant and others from violating the law. Slip op. 4-6.

I had never considered whether the aggravating factors or circumstances used might condition the application of harmless error analysis. At first glance, this seems to me a pretty unusual approach, if not unique.

Lampitok: Another Carson Case

I'm back from two days of CLE on videotape. I'm not sure why they can't just sell us the audiotapes and written materials so that we can listen to the tapes in bed and then send in the certification that we listened to them. I think I view CLE generally as a part of the fraud called "Appearance Ethics" in a book I just finished--not, of course while paying close attention to the videotapes.

But I guess I learned a thing or two over two days. Of course, in Blakely World, without driving an hour and some each way to Indianapolis and spending several hundred dollars for the course, I might have been able to learn 30 things just by snooping around the internet a little bit without breaking much of a sweat. I might also have been able to actually practice some law as well.

Anyway . . .

I do see that the Court of Appeals issued another case today following Carson, i.e., prior conviction=criminal history: Lampitok v. State, Court of Appeals No. 79A05-0212-CR-626 (Ind. Ct. App. November 16, 2004) (Chief Judge Kirsch for Judges Baker and Robb). One cannot tell from the case what Lampitok's criminal history was, just that he had one. The Court of Appeals did not discuss Blakely, except in a footnote:

Although Lampitok did not raise a challenge to his sentence under Blakely v. Washington, --- U.S.---, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (June 24, 2004), we nevertheless note that even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of Blakely, that determination would not seem to affect Lampitok’s enhanced sentence. See Carson v. State, 813 N.E.2d 1187, 1189 (Ind. Ct. App. 2004) (stating that criminal history aggravator relies on convictions that “have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely”).

Chief Judge Kirsch seems to have borrowed the footnote from Judge Baker opinion, following Carson, in Bledsoe: "[E]ven if our supreme court were to find that Indiana's sentencing scheme runs afoul of the Sixth Amendment for the reasons that were articulated in Blakely, such a determination would have no effect on Bledsoe's sentence."

I don't believe one panel of the Court of Appeals is bound by the decisions of other panels. That is, the panels are free to disagree. So far, there really has not been any disagreement that Blakely applies to Indiana's sentencing scheme. I think I count five published opinions saying as much. In reverse chronological order, they are: Traylor, Teeters, Strong, Krebs, and Holden. There also does not seem to have been any disagreement in the cases applying Blakely that the Blakely claims involved had not been procedurally defaulted.

Finally and similarly, there has been no disagreement about Carson and the equivalence between the fact of a prior conviction and the "derivative" criminal history, including juvenile adjudications. If anyone is aware of a case disagreeing with Carson, please let me know by email or in a comment. (I'm still waiting for a first comment and may have to offer a reward.)

Aggravators as Elements: Be Careful What You Wish For?

Today and tomorrow I will fulfilling my CLE duties in Indianapolis, so I am not sure what I will manage to post before Wednesday--almost an eternity in Blakely World.

Let me depart for Indianapolis, leaving the following conundrum.

Recall from the arguments in Heath and Smylie last Wednesday that Aggravating Circumstance as Element played a prominent role. This should not be surprising, since Blakely, Ring, Harris, and Apprendi all feature much language and reasoning to lead one to believe that aggravating circumstances that increase punishment beyond what is authorized by a jury's verdict are now to be treated as elements. That treatment has some potential dazzling benefits, substantive and procedural, for defendants.

Recall also, though, that the dissenters in Blakely, especially Justice Breyer, were less than convinced that defendants would, in the final analysis, be happy with Blakely's result. I want to take Justice Scalia's and Justice Breyer's exchange about 17-count robbery indictments to illustrate one possible less-than-thrilling result for defendants, if the "aggravating circumstances are elements" argument is taken to one logical conclusion.

Let us say that plain robbery has 3 elements and there are 14 potential aggravating circumstances in a robbery case. So one could have, theoretically, a 17-count robbery indictment or information. But what if, instead of a 17-count robbery information, a prosecutor were to file an information with 14 separate robbery counts, each containing the 3 elements of plain robbery plus 1 aggravating circumstance? If aggravating circumstances are now to be treated as elements, Blockburger would not prevent a prosecutor from getting 14 convictions and sentences. Each conviction would be based on an element lacking in all 13 others.

There may be provisions of a state's constitutional or statutory law that would prevent this result. I do not understand Indiana double jeopardy analysis after Richardson, Spivey, and a host of other cases, so I express no opinion on the restraint they might place on such a prosecutorial maneuver. I have been told that this couldn't happen in New Jersey.

But I don't think there is any federal restraint even on 14 consecutive sentences in such a situation.

Denial of Transfer in Wilkie: Another Tea Leaf

Many, many continuing thanks to Marcia Oddi at The Indiana Law Blog for her many invaluable services, including the posting of the transfer lists.

Two days after hearing argument in Heath and Smiley, the Indiana Supreme Court has unanimously denied transfer in Wilkie v. State, Court of Appeals No. 14A04-0401-CR-8 (Ind. Ct. App. August 18, 2004). Wilkie was a sentencing case arising from a guilty plea in which the court made no mention of Blakely except to drop the following footnote:

On June 24, 2004, after briefing was completed in this case, the United States Supreme Court issued its opinion in Blakely v. Washington, -- U.S. --, 124 S. Ct. 2531 (2004). We are mindful of that decision, but we leave for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B).

Wilkie received concurrent, maximum eight-year sentences for operating a motor vehicle with a Schedule I controlled sentence in his system and causing two deaths. The trial court found no mitigatinc circumstances and two aggravating circumstances to support the enhanced sentence: "(1) the risk that Wilkie would commit another crime, and 2) he was in need of rehabilitation best provided by incarceration."

One might think that the two aggravating circumstances found were the product of evidence regarding prior convictions. According to the Court of Appeals, Wilkie's criminal history consisted of one prior misdemeanor conviction and seven prior arrests. The Court of Apppeals quotes the trial court's sentencing statement as follows:

In considering aggravating circumstances, I can consider the risk that you would commit another crime, and I can certainly consider arrests as other crimes. I do not necessarily consider – I mean, the fact that there are not convictions, I can still consider the arrests. One thing, Mr. Wilkie, that bothers me about your record, very seriously, is that this charge was filed August 27, 2003, and on January of 2002, in Monroe County, you were charged with Operating a Vehicle While Intoxicated Endangering a Person, and Operating a Vehicle While Intoxicated With a B.A.C. of .08 of More. Now, [your attorney] indicates this has been dismissed, but it could have been dismissed for a variety of reasons. You were still charged with that, and right or wrong, that would scare me to death, so, you know, obviously it didn’t keep you from doing the second [offense] involving, basically, the same type of things, except a little more serious, . . . . You have several charges which have been dismissed. To me, this indicates that you need rehabilitation that will best be served by incarceration, because you were allowed to be on the pre-trial diversion program twice, you were placed on probation once or twice, and none of these things seemed to affect you or keep you from committing another crime. I mean, these are not horrendous crimes, but you finally ended up doing that, so, I would say that you need rehabilitation, which is best provided by incarceration . . . .

To me, these appear to be aggravating circumstances subject to Blakely, because they are not facts of prior convictions. I think it is hard to conclude that the two maximum sentences were supportable by the single misdemeanor conviction, the nature of which we do not learn from the opinion.

If the denial of transfer by the Supreme Court is another tea leaf, what might be divined? If anyone on the court were even thinking of finding Blakely errors to be fundamental error, the court could have granted transfer, waited until its final resolution of Heath and Smylie, and then summarily affirmed the Court of Appeals' opinion upon finally concluding Blakely claims / issues are subject to procedural default. But the denial of transfer was unanimous, so no one seems to be thinking "fundamental error." Indeed, the court could have delayed a decision on the transfer petition altogether until after deciding Heath and Smylie.

Other than its status as a published opinion, one thing that distinguishes Wilkie from Heath and Smylie is Wilkie's single prior misdemeanor conviction and criminal history. That may make Heath and Smylie "cleaner" cases; I'm not sure why that makes them more deserving of transfer.

I think this is at least a sign that the court is not going to be broadly sympathetic to Blakely claims, even if it decides that Blakely does affect Indiana sentencing, which is far from a foregone conclusion.

Natale Brief for Professionals

Amateurs borrow; professionals steal. It's easier to steal, i.e., to cut and paste, from files created by word processing programs. For the benefit of those with larceny in their hearts, I have been kindly provided with the WordPerfect verison of amicus brief in State v. Natale, mentioned here and here. The PDF version is still here on Doug Berman's site, Sentencing Law & Policy.

Heath & Smiley: So Many Questions

"There are so many questions here, it is hard to know where to start. Right?" That's how Justice Sullivan began the questioning from the bench in Wednesday's arguments (03:20 in the webcast). Well, quite. I hope to write about some of those questions over the next days. In my own thinking about Blakely, I will say that the conclusions I reach seem to very often depend on where I start.

Where I have been most often starting on the question of procedural default, for example, are the "procedural protections," as Lorraine Rodts put it in the first moments of her argument, that seem to spring up once the Sixth Amendment requires that aggravating circumstances be found by a jury beyond a reasonable doubt, if the finding of the aggravating circumstance are to expose a defendant to greater punishment. With respect to procedural default, that starting point leads one down the road of considering whether aggravating circumstance are elements and, even if they are, are you in the Land of Cotton. One can go 'round and 'round on that one, getting quite lost and confused in any number of dark woods or briar patches, as Judge Posner referred to the Blakely waiver problem recently in United States v. LaGiglio, 384 F.3d 925, (7th Cir. October 8, 2004).

But if I begin with Blakely's explicit concern regarding the Sixth Amendment's allocation of authority that implies the Fourteenth Amendment's standard of proof, I find myself wandering down the road laid out in a footnote in United States v. Terrell, 2004 U.S. Dist. LEXIS 13781, *15 n.3 (D. Neb. July 22, 2004):

Blakely expressly authorizes a defendant to waive the right to a jury trial and to consent to factfinding by the court. Blakely, 124 S. Ct. at 2541 ("When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding."). Such judicial factfinding must still satisfy the standard of "proof beyond a reasonable doubt," however. Simply put, the standard of proof is not the defendant's to waive; it is a burden placed on the government, without which a conviction cannot be obtained. See In the Matter of Winship, 397 U.S. 358, 364 (1970) ("The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). The standard not only protects the accused from error, but is "indispensable to command the respect and confidence of the community in applications of the criminal law." Id. at 363. Accordingly, "it is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty." Id. See also Victor v. Nebraska, 511 U.S. 1 (1994) ("The Due Process Clause requires the government to prove a criminal defendant's guilt beyond a reasonable doubt, and trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires."); Sullivan v. Louisiana, 508 U.S. 275, 278, 282-83 (1993) (stating that "the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt" and noting that an instructional error misdescribing the burden of proof will vitiate the jury's findings: "denial of the right to a jury verdict of guilt beyond a reasonable doubt" is structural error not subject to harmless error review); Estelle v. McGuire, 502 U.S. 62[, 69] (1991) ("The prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense"); Jackson v. Virginia, 443 U.S. 307 (1979) (The Winship doctrine, "establishing so fundamental a substantive constitutional standard, must also require that the factfinder will rationally apply that standard to the facts in evidence"); Patterson v. New York, 432 U.S. 197, 215 (1977) (recognizing a limit on state authority to reallocate traditional burdens of proof); United States v. Ameline, 2004 U.S. App. LEXIS 15031, No. 02-30326, slip. op. at 34 n.19 (9th Cir. July 21, 2004).

Characterization of facts that increase a defendant's maximum sentence as "the functional equivalent of elements" as opposed to sentencing factors means that judicial factfinding by a preponderance of evidence will not satisfy the Due Process Clause with respect to those facts. Cf. United States v. Watts, 519 U.S. 148, 154 (1997) (sentencing enhancements do not punish a defendant for crimes of which he was not convicted); McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986) (visible possession of a weapon not found to be an element of crime when proof of that fact did not expose defendant to greater or additional punishment).

(Emphasis added) (parallel citations omitted). So for Indiana, even if one can, for the purposes of appeal, default a claim that a jury instead of a judge should have found the aggravating circumstances used to enhance a sentence, can one default the claim that the judge was required to find the aggravating circumstances beyond a reasonable doubt?

Judicial factfinding in Indiana's sentencing process is completely standardless. On appeal, a judge's findings with respect to aggravating circumstances need only be supported by the record, a standard seeming to me more familiar in the administrative law context. See Veal v. State, 784 N.E.2d 490, 494 (Ind. 2002) (trial court's sentence supported by the record despite the finding of multiple invalid aggravating circumstances.) Now in Winegeart v. State, 665 N.E.2d 893, 896 (Ind. 1996), there was a complaint about an alleged Cage instruction. There had been no objection to that instruction. The Indiana Supreme Court went on, nonetheless, to consider whether the giving of the instruction had been "fundamental error." The court did a detailed federal-law analysis on the claim's merits and concluded that there had been no error at all. Because there was no error, there was no "fundamental error," the court said, still reviewing the fundamental error claim on its merits.

Both Heath and Smylie, however, are cases where, if Blakely applies to Indiana's sentencing scheme--or maybe depending on how it does, if it does--statutorily standardless factfinding of aggravating circumsances by a judge is almost necessarily going to be held a fourteenth amendment due process violation. If it follows the Winegeart method--which is also the method, I believe, the court always follows where fundamental error is claimed--the court is going to have to make the difficult assessment it did not have to make in Winegeart: Was the error, in fact, "fundamental" as the Indiana cases define the term?

The usual formulation was repeated by the court quite recently in Ritchie v. State, 809 N.E.2d 258, 273 (Ind. 2004), reh'g denied: "Fundamental error is error that represents a blatant violation of basic principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process." (Citation omitted). (Somehow my investigations of or ruminations about Blakely in Indiana keep dragging me back with amazing frequency to the companion cases of Ritchie and Barker, decided last May, a month before Blakely.) Looking back at Heath's and Smylie's sentencings in brand new Blakely goggles, could the court say a literal violation of the Due Process Clause and Winship with respect to the standard of proof by which the respective aggravating circumstances were found was anything but basic, blatant, and unfair?

In light of various facts specific to the cases, I suppose the court might conclude, as it has in other cases, that the error that occurred in both of these cases with respect to the standard of proof was harmless and therefore not fundamental. But that is not the same as finding the claims defaulted.

Yet if I start out not with not the standard of proof imposed by the Fourteenth Amendment, but the burden of proof, a whole different geography of problems appears with respect to procedural default. Not much has been said about this in anything I have read about Blakely in state or federal courts. The arguments yesterday came within an inch of opening up the subject when Justice Dickson mentioned mentioned presentence investigation reports and notice during Joe Cleary's argument. But the arguments then flew off again in other directions.

If Blakely applies to Indiana's sentencing scheme--or again, maybe depending on how it applies--it is the State's burden to plead and prove any aggravating circumstances used to enhance a sentence--except, for the time being, the fact of a prior conviction. In Heath's and Smiley's cases, the State didn't have to do anything except, perhaps, to argue sentencing when the time came. That's because the court through its probation department did all the investigating, "pleading," and proving.

So the Blakely errors in these cases include not only a misallocation of factfinding from jury to judge, but also an additional misallocation of authority and duties from prosecutor to judge. Besides the separation of powers problem of a judge performing the functions of a prosecutor--a claim, I seem to recall from earlier battles, is defaultable for appeal, there is also the problem of a judge, admittedly through the probation department, actually investigating and presenting facts for the prosecutor. I haven't done the research, but it would seem almost axiomatic that fourteenth amendment due process doesn't permit judges to act as second prosecutors, which the judges in Heath and Smiley almost certainly did. So can one default a claim that a judge acted as a second prosecutor, when the facts supporting the claim became known for the first time during the appeal?

Whatever the answer to that question, if Blakely applies to Indiana sentencing, it would seem that court-run probation departments ought, in the future, to have nothing to do with the investigation of aggravating circumstances that may increase punishment.

Then there is the starting point, emphasized in the amicus brief in the New Jersey case, State v. Natale, that I mentioned here and here, that certain Indiana sentencing statutes may be facially unconstitutional after Blakely. Can one default that claim? The Indiana Supreme Court will probably say yes since, while others like me were nigh unto obsessed with Blakely, the court decided a case that I find troubling. In Lee v. State, Supreme Court No. 02S03-0310-PC-463 (Ind. October 19, 2004), a unanimous court said that defendants may agree to plainly illegal sentences, but may not complain about the illegality later. (I'm putting Lee away in my follow-up bookmarks for a Blakely-break in the posts sometime.)

In the end, opinions finding procedural default will arguably ratify the following: as long as nobody objects, administrative law judges, acting as both criminal juries and prosecutors, may impose enhanced sentences on the authority of unconstitutional statutes.

Anything's possible in Blakely World.

---

In addition to discussing some of the exchanges that arose during the argument, I will try along the way to correct misstatements I made in my first post-argument post here. The first such correction is that it was Justice Sullivan and not Justice Boehm, as I reported, who said that he was not sure why defendants should be penalized for not anticipating Blakely.

Another Reason to Read the Natale Brief

There is another very important reason to read the brief in State v. Natale. It identifies the severability problem confronting states with Blakely-affected sentencing statutes. I don't believe that I have discussed this in posts about Blakely. But the question is, what do the states do--where do they run--if the sentencing statutes are unconstitutional. Indiana, for example, does not have the Croxford III option of invalidating the sentencing statutes and then relying on the statutes of conviction. The option of applying sentencing statutes after (radical) constitutional surgery in Blakely cases and the usual statutory scheme in cases unaffected by Blakely would create a dual system that might well present constitutional problems of its own--equal protection and ex post facto problems, for example. So it is possible that the states are in a bigger pickle than Uncle Sam.

It really is a potential mess.

State v. Natale: A Brief from New Jersey

I have been in touch with one of the lawyers in State v. Natale, a case pending in the New Jersey Superior Court Appellate Division. He called my attention to one of the briefs filed in that case, and I have now read most of it. (New Jersey apparently has a 65-page limit for briefs.) From what I have read, many of the central aspects of New Jersey's sentencing scheme are Blakely-indistinguishable from Indiana's.

The brief has been posted on Sentencing Law & Policy for some time here, and I regret very much that I did not read it sooner. I commend it as a good commentary on many of the arguments made today in Heath and Smiley. The brief presents a very good argument, for example, explaining why the State's argument that Blakely does not apply to Indiana sentencing cannot be correct.

The brief also focuses much more tightly than anything I have seen on the constitutional infirmities of specific sentencing statutes and the lack of authority of courts to act at all under those unconstitutional statutes. I think the briefs and arguments in Heath and Smiley were much more focused on the sixth amendment violations in Heath's and Smiley's sentences themselves.

I will say that one difference between New Jersey and Indiana is that in the Garden State, one may mount facial challenges to a statute's constitutionality for the first time on appeal. On the other hand, as Justice Sullivan, I think, pointed out today, Indiana has permitted attacks on sentences for the first time on appeal. So why not on the statutes that produce the sentences?

I have found the brief to be a real education. Blakely continues to surprise.

[Update: For those who like to cut and paste, I have kindly been provided with the WordPerfect verison of amicus brief in State v. Natale.]

Traylor v. State: Another Blakely Reversal

Traylor v. State, Court of Appeals No. 63A04-0309-CR-466 (Ind. Ct. App. November 10, 2004) is out. Judge Robb writing for Judges Sharpnack and Darden. The decision reverses enhanced concurrent sentences after a trial for a Class A felony and a Class C felony. To me, the notable things about the case are the following:

• There is not a word about procedural default, although we know the State argued it. The court merely decides the case--also without saying the magic words "fundamental error."
• The court sets aside entirely aggravating circumstances subject to Blakely and says the sentence is not sustainable only on the basis of a minimal criminal history.
• The court remands "for further proceedings consistent with this opinion" without saying anything about what proceedings might be permissible either procedurally or on double jeopardy grounds.

There is another holding of the case that may be of interest as well: a trial court cannot take fines, costs or fees out of a cash bond, although it may take those items from a 10% surety bond.

Traylor is a long opinion, so I will pull out the essential Blakely/Apprendi portion of it below. Stacy Uliana's prevailing briefs in Word format are here and here.

---

Traylor was subsequently found guilty by a jury and convicted of dealing (manufacturing) in methamphetamine over three grams as a Class A felony, possession of methamphetamine over three grams as a Class C felony, and visiting a common nuisance as a Class B misdemeanor. The trial court sentenced him to forty years for the Class A felony conviction, six years for the Class C felony conviction, and 180 days for the Class B misdemeanor conviction, all sentences to be served concurrently. Additionally, the trial court imposed a $10,000 fine and required Traylor to pay a $1,000 drug fee.

. . . .

Under Indiana law, after a jury returns a guilty verdict, the trial court can only impose the presumptive sentence, as outlined in the statute, without finding any additional facts. Therefore, the presumptive sentence for an offense is the prescribed statutory maximum for Apprendi/Blakely purposes. For Traylor’s Class A felony conviction, the presumptive sentence was thirty years. See Ind. Code § 35-50-2-4. For his Class C felony conviction, the presumptive sentence was four years. See Ind. Code § 35-50-2-6.

Traylor was sentenced to an enhanced term of forty years for the Class A felony conviction and an enhanced term of six years for the Class C felony conviction. In enhancing Traylor’s sentences, the trial court found the following aggravating circumstances: (1) there is a great risk that Traylor will commit another crime; (2) the particularized nature and circumstances of the crime committed; (3) Traylor’s prior criminal history; (4) Traylor’s character; and (5) Traylor is in need of correctional and rehabilitative treatment that can best be provided by commitment to a penal facility.

Under Apprendi, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added). Because the aggravating circumstances upon which the trial court enhanced Traylor’s sentences were not submitted to a jury and proved beyond a reasonable doubt, under Apprendi, only Traylor’s prior criminal convictions could be used by the trial court to enhance Traylor’s sentences in this case.

Traylor contends, however, that it was improper for the trial court to enhance his sentences based on his prior criminal history. We agree. Traylor’s prior criminal history consists of one misdemeanor conviction in 1998 for battery. The trial court noted that it found “this to be an aggravating factor of minimal weight.” Appellant’s Appendix at 494. A misdemeanor battery conviction nearly five years before the instant offenses, standing alone, is insufficient to enhance Traylor’s sentences. See, e.g., Newsome v. State, 797 N.E.2d 293, 300 (Ind. Ct. App. 2003), trans. denied (stating that a criminal history that consisted of three fairly recent misdemeanor convictions, two of which were for battery, would not be sufficient, standing alone, to enhance a defendant’s sentence); Westmoreland v. State, 787 N.E.2d 1005, 1010 (Ind. Ct. App. 2003) (concluding that “a criminal history comprised of misdemeanors that are unrelated to the present offense are not significant aggravators in the context of a sentencing hearing for criminal deviate conduct.”); Watson v. State, 784 N.E.2d 515, 523 (Ind. Ct. App. 2003) (holding “a criminal history comprised of two, nonviolent misdemeanors that are unrelated to the present offense are not significant aggravators in the context of a sentencing hearing for battery.”). Therefore, we vacate Traylor’s sentences for his Class A felony conviction and his Class C felony conviction, and we remand this cause to the trial court for further proceedings consistent with this opinion. See footnote

In the footnote, the court says:

We note that in Carson v. State, 813 N.E.2d 1187 (Ind. Ct. App. 2004), a panel of this court held a trial court did not err, under Apprendi/Blakely, in enhancing a defendant’s sentence, based on the following aggravating circumstances: prior criminal history; a need for corrective or rehabilitative treatment best provided by commitment to a penal facility; and the strong likelihood that the defendant would commit another crime. Id. at 1189. After stating that prior criminal convictions are exempt from the requirement of jury findings under Apprendi, the panel held the other two aggravating circumstances “are simply derivative of that extensive history of convictions and thus would seem also not to implicate the Blakely analysis.” Id. at 1189. Because we hold Traylor’s one misdemeanor criminal conviction five years ago is not a proper aggravator to enhance his sentence, any circumstances that may or may not derive from his prior criminal history also are not proper aggravators to enhance Traylor’s sentences.

Heath & Smiley Argument Now Online

A Blog Helper in New Jersey just let me know that the Heath and Smiley arguments are available. The page with the link is here. I guess I might have missed it being available earlier, because I didn't refresh the court's oral argument page in my browser.

Video Still Not Available; Traylor Is

As of 2:10 pm, the archived video of the Heath and Smylie arguments was still not available. The Court of Appeals' decision in Traylor is, and I'll have a few words about that in a moment.

A New Case & First Words about the Argument

As the argument closed, I received word by email that Stacy Uliana won her Blakely case, Traylor v. State, Court of Appeals No. 63A04-0309-CR-466 (Ind. Ct. App. November 10, 2004). It should be up on the Court of Appeals site this afternoon.

A few preliminaries about the argument:

Chief Justice Shepard was the most interested in waiver, although Justice Sullivan noted that he thinks federal plain error and Indiana fundamental error are very similar. I think Justice Boehm said he was not sure why defendants should be penalized for not anticipating Blakely No one mentioned Parker, the 2001 case from the Court of Appeals.

[Correction: it was Justice Sullivan who said that he was not sure why defendants should be penalized for not anticipating Blakely, not Justice Boehm.]

Chief Justice Shepard, Justice Dickson, and Justice Sullivan, I believe, were all interested in whether the court should issue an opinion even if the court finds the Blakely issues procedurally defaulted. The State said yes. Justice Sullivan chimed in, "Even if that means issuing an advisory opinion," to which Ellen Meilaender for the State answered, "Yes," with a smile. Joe Cleary for Smylie in rebuttal made a strong against argument against default based on post-Furman cases and Bostick that the court should not find the issues defaulted. He left it up to the court whether to issue an opinion in the event of default.

Lorraine Rodts for Heath focused on two things: 1) the language of the sentencing statutes show that Blakely applies and the court can't change that through judicial interpretation (Justice Dickson's suggestion); and 2) aggravating circumstances are elements. Justice Sullivan certainly understood her argument that non-statutory aggravating circumsances can never be used because of the notice / common law crime problem, because he restated it.

Joe Cleary for Smylie answered a number of questions before getting to Blakely and consecutive sentencing. And all in all, on both sides, very little time was spent on the subject.

The State spent lots of its time arguing that Blakely doesn't apply at all. Steve Johnson spent some of his 10 minutes on the subject, but most of his time on a hypothetical that Justice Sullivan took and turned around on him a little bit. He also spent some time on offense facts and offender characteristics, a distinction from Doug Berman's forthcoming article and from other sources, Johnson said. Justice Dickson, I believe, went over some statutory provisions, questioning Johnson how they should be classified. At least one provision I remember is the likelihood that a person will commit another crime. I think Johnson said that should be an offender characteristic.

The State raised at least one argument that I either did not understand from its brief or was new: If Blakely applies, the State need only prove a single aggravating circumstance to a jury beyond a reasonable doubt and a judge may go on to find others, because a single circumstance can support a maximum sentence. If a single aggravating circumstance can support a maximum sentence, other circumstances found by a judge are not, within the meaning of Blakely "necessary" to the punishment of an enhanced sentence.

Have to go do that preschool transportation thing. More later.

Heath & Smiley: Last Minute Docket Check

Today's docket entries show the court permitted IPAC to file its amicus brief. Heath and Smylie have two weeks to answer in writing. The State also filed citation to additional authority in both cases. I'm curious how old the additional authority is--days or weeks? The government side seems to be piling on at the last minute.

But here we go.

Waiver: California & A Wider Sample of Authority

Those who read the State's response to the Marion County Public Defender Agency's brief may have noticed that he only state case relied upon by the State for its waiver argument is a California case, People v. Sample, 18 Cal. Rptr. 3d 611 (Cal. Ct. App. 2004), reh'g denied, which takes a Cotton-like approach to waiver:

It is a well established rule in this state that a criminal defendant’s right to raise an issue on appeal is forfeited by the failure to have made a timely objection in the trial court.

This forfeiture rule extends to claims based on the alleged violations of fundamental constitutional rights. And it extends to challenges to the composition and procedure of the jury.

Accordingly, the forfeiture rule applies to claims of Blakely error for the following reasons: First, Blakely establishes a rule of federal constitutional law. No state court has held that the discretion granted trial judges by California’s sentencing laws violates our state Constitution. Second, the United States Supreme Court has held (1) the Apprendi rule is not a substantive rule that alters the range of conduct or the class of persons that the law punishes; rather, it is a procedural rule that affects only the manner of determining the defendant’s culpability, and (2) the Apprendi rule is not a “watershed rule of criminal procedure” that implicates the fundamental fairness and accuracy of criminal proceedings. (Schriro v. Summerlin). Third, in Cotton, the United States Supreme Court established that the forfeiture rule may properly be applied to claims of Apprendi error, and thus by extension to Blakely error. Fourth, our state Supreme Court has held that in considering the nature and effect of federal constitutional claims, we must apply federal standards. Fifth and finally . . . our state Supreme Court expressed a concern identical to that stated by the United States Supreme Court in Cotton, which held that the reversal of a judgment despite overwhelming and uncontroverted evidence because of an error to which an objection was not raised in the trial court would pose a real threat to the “fairness, integrity, and public reputation of judicial proceedings.” (Cotton, supra, 535 U.S. at p. 634.) Abandoning a reversal-per-se rule, the court . . . stated that in the face of overwhelming evidence clearly establishing the defendant’s guilt, “reversal of the judgment will result either in a superfluous retrial in which the outcome is a foregone conclusion or, even more unfortunately, in a new trial whose result is altered by the loss of essential witnesses or testimony through the passage of time. In either event, public confidence in the operation of the criminal justice system is diminished.”

It follows that, consistent with federal constitutional standards, a forfeiture rule applies to claims of Blakely error.

As we will explain, the forfeiture rule set forth in Cotton applies to defendant’s failure to challenge the upper term and consecutive terms in this case.

Slip op. at 34-37 (footnotes omitted) (some citations omitted). Sample, a Third District case decided on September 13th, has not been cited for its waiver analysis in a single published majority opinion in any jurisdiction anywhere that I can find.

Here's what a First District decision said about the veritable wall of published California authority contrary to Sample's waiver approach on October 22nd:

The Attorney General contends Lopez forfeited his Blakely claims by failing to raise them below. This argument has not fared well in California's Courts of Appeal. (People v. Ochoa (2004) 121 Cal.App.4th 1551, 1564-1565; People v. George (2004) 122 Cal.App.4th 419, 424; People v. Shaw (2004) 122 Cal.App.4th 453, 456, fn. 9; People v. Lemus (2004) 122 Cal.App.4th 614, 619-620; People v. Barnes (2004) __ Cal.App.4th __, 19 Cal.Rptr. 3d 229, 243-245; People v. Butler (2004) __ Cal.App.4th __, 19 Cal.Rptr. 3d 310, 315-316; People v. Vaughn (2004) __ Cal.App.4th __, 19 Cal.Rptr. 3d 460, 464; People v. Jaffe (2004) __ Cal.App.4th __, [2004 WL 229460]; but see People v. Sample (2004) 122 Cal.App.4th 206, 217-221 [Blakely claim forfeited, but reviewed under federal "plain error" standard].) We agree with the analysis of our colleagues in Division Two of this appellate district. Sentencing issues arising under Blakely present questions of fundamental constitutional rights; an objection in the trial court would have been futile under the law as it stood before Blakely; and we have discretion to consider issues that have not been formally preserved for review. It would be inappropriate to invoke the forfeiture doctrine in cases where sentence was imposed before the Blakely decision, since the purpose of the doctrine is to encourage defendants to bring errors to the trial court's attention. (People v. Butler, supra, __ Cal.App.4th __, 19 Cal.Rptr. 3d at p. 316.)

People v. Lopez, No. A101889, (Cal. Ct. App. October 22, 2004) (mem.), slip op. at 9. Among the eight published cases cited by Lopez that are contrary to Sample, Butler is especially and explicitly harsh about the importation of Cotton and about Sample by name:

We are not persuaded otherwise by the People's troubling reliance on two federal cases, United States v. Cotton (2002) 535 U.S. 625 (Cotton) and United States v. Ameline (2004) 376 F.3d 967 (Ameline). The People erroneously contend these cases support their view that a Blakely claim can properly be deemed 'forfeited' under California law, and thus not subject to review at all, even when, as here, Blakely was decided after the defendant's sentencing hearing.

As any fair analysis of these federal cases should acknowledge, characterizing a claim as 'forfeited' under federal law does not mean the claim is not reviewable on appeal. Rather, such a claim is reviewed for 'plain error' pursuant to rule 52(b) of the Federal Rules of Criminal Procedure. [*2] (See Cotton, supra, 535 U.S. 625, 631-632; Ameline, supra, 376 F.3d 967, 978-979.) In their supplemental brief, the People acknowledge that a plain error analysis was applied in Cotton but then argue that such an analysis is inapplicable in this state appeal. We agree. But, by the same token, these federal cases are not sound authority for denying any review of a state law claim which arose while the criminal appeal was pending.

In any event, California has a well-recognized waiver rule (see, e.g., People v. Scott (1994) 9 Cal.4th 331, 351-356) applicable in circumstances of this sort and, as noted above, we have no problem in holding there was no waiver of Blakely error. (See, to the same effect, People v. Ochoa (1994) 121 Cal.App.4th 1551; People v. George (September 15, 2004, D042980) 122 Cal. App. 4th 419.) To the extent the recent decision of the Third District in People v. Sample (September 13, 2004, C044445) 122 Cal.App.4th 206 holds to the contrary, we respectfully disagree with it.

People v. Butler, 2004 Cal. App. LEXIS 1709, *1-2 (Cal. Ct. App. October 13, 2004) (denying rehearing). (Some citations omitted).

There's no reason the State should have found the unpublished decision in Lopez. But the authority Lopez relies upon is all published and contrary to Sample. I sure hope the Indiana Supreme Court doesn't think Sample represents "what California courts are doing." They are doing just the opposite.

And in line with Lopez and the apparent vast majority of California decisions, the Indiana Supreme Court has said, "The purpose of the requirement for a timely objection is to alert the trial court and to permit prevention or immediate correction of an error without waste of time and effort." Godby v. State, 736 N.E.2d 252, 255 (Ind. 2000). Apprendi objections in the non-capital sentencing context were futile at least as early as Parker v. State, 754 N.E.2d 614 (Ind. Ct. App. 2001), in which the court said to an Apprendi sentencing claim: "A Class A felony has a sentencing range from a presumptive thirty years to a maximum of fifty years. See Ind. Code § 35-50-2-4. Parker received forty years with a five-year enhancement. The application of the enhancement for use of a handgun in Parker's case did not, as a result, increase the maximum penalty for his offense." 754 N.E.2d at 618 n.7.

Maybe the Indiana Supreme Court should follow the majority of California decisions and not the single case.