Oral Argument in Smith

Catching me asleep at the switch, without much advertising or fanfare, the Indiana Supreme Court heard oral argument today in arguably its first Blakely case: Maurice Smith v. State, 804 N.E.2d 1246 (Ind. Ct. App. 2004), trans. granted and vacated by Supreme Court No. 64S03-0406-CR-00284 (Ind. June 25, 2004). The argument, about 37 minutes long, can be watched with Real Player here.

I am not going to do my own rendition of the argument. But the Apprendi, Blakely, and Almendarez-Torres all made prominent appearances. The Court of Appeals held that Article 1, § 19, of the Indiana Constitution makes the Repeat Sexual Offender statute, Indiana Code § 35-50-2-14, unconstitutional both as applied to Smith and on its face. 804 N.E.2d at 1253. Specifically, the Court of Appeals said: "In our opinion in Seay I, which our supreme court adopted in Seay II, we concluded that “[w]here a significant liberty interest is involved, there is no constitutional distinction between a verdict and an habitual offender adjudication.” Seay I, 673 N.E.2d at 480. We believe that the same may be said of a repeat sexual offender adjudication."

The Repeat Sexual Offender Statute provides in full:

(a) The state may seek to have a person sentenced as a repeat sexual offender for a sex offense under IC 35-42-4-1 through IC 35-42-4-9 [Sex Crimes] or IC 35-46-1-3 [Incest] by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated one (1) prior unrelated felony conviction for a sex offense under IC 35-42-4-1 through IC 35-42-4-9 or IC 35-46-1-3.

(b) After a person has been convicted and sentenced for a felony committed after sentencing for a prior unrelated felony conviction under IC 35-42-4-1 through IC 35-42-4-9 or IC 35-46-1-3, the person has accumulated one (1) prior unrelated felony conviction. However, a conviction does not count for purposes of this subsection, if:
(1) it has been set aside; or
(2) it is one for which the person has been pardoned.

(c) The court alone shall conduct the sentencing hearing under IC 35-38-1-3.

(d) A person is a repeat sexual offender if the court finds that the state has proved beyond a reasonable doubt that the person had accumulated one (1) prior unrelated felony conviction under IC 35-42-4-1 through IC 35-42-4-9 or IC 35-46-1-3.

(e) The court may sentence a person found to be a repeat sexual offender to an additional fixed term that is the presumptive sentence for the underlying offense. However, the additional sentence may not exceed ten (10) years.

(Emphases added). Article 1, § 19, simply provides: "In all criminal cases whatever, the jury shall have the right to determine the law and the facts."

On the State's side of the argument, the issue arose whether Article 1, § 13, Indiana's sixth amendment counterpart, might require the same thing as Blakely and / or Apprendi.

For the truly Blakely-afflicted, though, Justice Sullivan made the most interesting point of the argument. Smith raised an Apprendi issue in the Court of Appeals, which the court dispensed with in the following footnote 6:

Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Smith also contends that Indiana Code Section 35-50-2-14 violates the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution because it “forces a judge to determine facts besides just that of repeat offender status when weighing what sentence a person should receive.” Appellant’s Br. at 13. Because we have already concluded that the statute violates the Indiana Constitution, we need not resolve that question here. We presume that the legislature will follow applicable federal law should it decide to enact another version of the repeat sexual offender statute.

Justice Sullivan pointed out to the State that if the court does in the Court of Appeals' analysis of the Indiana Constitution, it is going to have to decide the Apprendi issue about weighing aggravating and mitigating circumstances. Now Justice Sullivan got a concession from Smith's lawyer that the court would have to overrule Ritchie in order to find that Apprendi (or presumably Blakely) applies to weighing.

In my view, it is a pity that Justice Sullivan received the concession. First, Ritchie dodged Apprendi by engaging in a somewhat tortured eighth amendment two-step, which it could do, because Ritchie was a death penalty case. There is no reason to think that that dodge / analysis, clever as it is and even if correct, should be applicable in the non-capital sentencing context.

There is a huge irony in this as well. If one watches the oral argument in Barker, a companion case to Ritchie, the court is visibly conipted at the prospect of non-capital weighing becoming infected by Apprendi should it hold that Apprendi requires a jury to do the weighing in capital cases. And in general, the court was very worried that Apprendi would insinuate itself into the entire non-capital sentencing scheme. Hence, in my opinion, the eighth amendment approach.

Of course, now we know (or do we?), thanks to Blakely, that Apprendi does affect Indiana's entire non-capital sentencing scheme. The eighth amendment approach in the death cases would seem to imply that the court could not come up with any other principled (?) way to keep Apprendi out of non-capital sentencing. So what is the court going to say now?