Arizona: An older case with some new ideas

Though not easy to put up my own Christmas and New Year’s posts with all the trimmings, i.e., links, flags, and music, I have been able to catch up on some Blakely reading. There are some fascinating cases that I have missed along the way, which I guess should not be surprising since in the half-turn of Blakely World, the number of opinions reported online at least mentioning Blakely are legion, if not yet myriad. (As should be clear from my list of Indiana cases and their status posted yesterday, that does not mean that anything like that number of cases actually decide anything based on Blakely. That is, a large percentage of cases that mention Blakely are non-Blakely cases, especially those coming out of the Circuit Courts of Appeal that have rejected Blakely’s application to the federal Guidelines.)

I still want to get to Dilts, but I just read a fascinating opinion from the Arizona Court of Appeals that is already venerable, if not ancient, having been decided on November 10th: State v. Resendis-Felix, 100 P.3d 457 (Ariz. Ct. App. Div. 2 Dep’t A November 10, 2004). The majority and concurring opinions really add something new to the Blakely debate—at least in my experience of the debate. The majority opinion treats Blakely error as "fundamental error," not subject to procedural default, but subject to harmless error analysis. The concurring opinion provides the best discussion I have seen of structural error vs. error subject to harmless error analysis, distinguishing Neder in a compelling discussion, and concluding that Blakely error is structural of the Rose v. Clark and Sullivan v. Louisiana variety. In fact, it appears the majority would have agreed with the concurrence on this point but for the Arizona Supreme Court’s opinion in the remand from the United States Supreme Court in Ring, which comes down on the Neder / Cotton side of the fence, at least with respect to Apprendi.

It will be interesting to see, in the end, where the United States Supreme Court comes out on Blakely and structural error. If the Court doesn’t come up with something like the concurring opinion in Resendis-Felix, making some fine, but well-founded distinctions, something is going to have to give: either Rose and Sullivan or Neder and Cotton.

Just as the pressure to avoid retroactivity, even if just to Apprendi, will be considerable, given Blakely’s potential reach, so also will be the inclination, I think, to apply Neder and not Rose and Sullivan. Will there be anything in Booker and Fanfan about this aspect of Blakely?

Before reading the passage about Arizona "fundamental error," recall that Justice Sullivan, during the Heath and Smylie arguments, said he believed Indiana "fundamental error" to be very similar to federal plain error. I personally think that Indiana "fundamental error," at least as it has been described in the cases for many many years, is not at all like federal plain error and is much closer to what the Arizona Court of Appeals describes. It will be interesting to see if Blakely pushes the Indiana Supreme Court to now change the definition of "fundamental error" so that it becomes, in fact, more similar to federal plain error.

In any event, here is what the Resendis-Felix majority had to say:

Sentencing a defendant outside constitutional limits creates an illegal sentence, which can constitute fundamental error. "In limited circumstances, we recognize that some issues may be so important that overriding considerations concerning the integrity of the system will excuse a party's failure to raise the issue in the trial court. This limited exception is known as the doctrine of 'fundamental error.'" State v. White, 194 Ariz. 344, P 45, 982 P.2d 819, 829 (1999).

Based on the Supreme Court's holding and rationale, we believe Blakely error falls within that "limited exception" and, unless harmless, constitutes fundamental error. We will, therefore, in our discretion address Resendis-Felix's supplemental issue. See State v. Taylor, 187 Ariz. 567, 931 P.2d 1077 (App. 1996) (appellate court has authority to reverse when it discovers fundamental error); see also State v. Dewakuku, 208 Ariz. 211, P 7, 92 P. 3d 437, 440 (App. 2004) (considering application of Apprendi to finding of defendant's onrelease status, even though defendant had not objected to court's making finding below, because "a sentence that is improperly imposed can be reversed on appeal despite the lack of an objection"); State v. Johnson, 183 Ariz. 358, 903 P.2d 1116 (App. 1995) (fundamental error for trial court to make sentence-enhancement determination jury was required to make) . . . .

(Some citations omitted). There is one major difference between Arizona and Indiana "fundamental error": in Indiana, correction of fundamental error, whatever it may be, is a duty and not a matter of discretion.

The discussion of structural vs. (potentially) harmless error in the concurring opinion is lengthy and is worth reading in its entirety. An edited version, stripped of most of the legal apparatus, follows:

[W]e can only determine whether harmless error analysis is appropriate after we have assessed the nature of the underlying constitutional deprivation and the extent to which it affects the basic framework within which a trial proceeds in our criminal justice system. Although our supreme court's opinion in Ring III addressed the same species of error that we address here in the Blakely context, the nature of the resulting constitutional deprivation and its impact on the fundamental framework of our system of justice is significantly different, given the context of our state noncapital sentencing scheme. . . .

In finding that Ring error was subject to harmless error review, our supreme court emphasized that Arizona's preexisting capital sentencing scheme had provided important procedural protections inherent in the right to jury trial, including "the correct standard of proof." Ring III, 204 Ariz. 534, P 50, 65 P. 3d at 935.

In contrast, the error we address here, the judicial imposition of a non-capital sentence greater than that authorized by the jury verdict ("Blakely error"), occurred against a significantly different statutory framework. Under that framework, Resendis-Felix had no right to presentence notice of the aggravating factors that the state would assert or the trial court might find. He had no right to insist that the state present proof of those aggravating factors in conformity with the rules of evidence and, therefore, no right to challenge that information through cross-examination. And, most importantly, Resendis-Felix did not enjoy the right to insist that the aggravating factors be proven beyond a reasonable doubt. To the contrary, the noncapital scheme does not even require the trial court to find the existence of aggravating factors by a preponderance of the evidence.

Thus, while Ring error and Blakely error arise from the same essential flaw - the failure to afford a defendant a jury trial on facts that are necessary predicates to an increased sentence - Blakely error far more dramatically insults the core structures under which a trial proceeds and without which a trial could not "reliably serve its function as a vehicle for determination of guilt or innocence." Rose, 478 U.S. at 577-78. If the defendant's right to notice, to challenge adverse evidence through cross-examination, and to be presumed innocent unless proven guilty beyond a reasonable doubt are not three of the core structures by which a criminal trial assures a reliable result, I cannot fathom what those structures might be.

Indeed, the United States Supreme Court has found structural error when faced with a comparatively mild insult to the framework of the criminal trial process. In Sullivan v. Louisiana, 508 U.S. 275, 278, 281-82 (1993), it found structural error when the trial court erroneously instructed the jury so as to allow a conviction on the mere probability of guilt rather than upon proof beyond reasonable doubt. Here, Resendis-Felix was not only deprived of an accurate reasonable doubt instruction, but the trial court may well have found him guilty of four aggravating factors based only on "reasonable evidence," a standard which imposes no burden of proof at all.

In short, Resendis-Felix was entitled to a jury trial to determine whether the aggravating factors that were a necessary predicate to his aggravated sentence were proven. The trial court, in finding those factors under Arizona's sentencing scheme, fell short of that requirement in a fashion that offended the core structures under which such a jury trial would function as a reliable fact-finding process. In my view, the trial court therefore committed structural error.

The United States Supreme Court's opinion in Neder v. United States, 527 U.S. 1 (1999), compels no different analysis. There, the Court found that a trial court's failure to instruct the jury on the materiality element of tax fraud was subject to harmless error analysis. Id. at 15 Although Blakely error could be similarly described as the omission of an element necessary to impose an aggravated sentence and would, as such, arguably be subject to harmless error analysis under Neder, the Neder opinion itself does not encourage such a mechanical application of its holding.

First, the opinion reaffirms the standard set forth in Rose, which focuses structural error analysis on the specific features of the actual constitutional deprivation in the context of the reliability function of a jury trial. Neder, 527 U.S. at 8-9, 17 n. 2. As demonstrated above, that analysis can expose dramatically different insults to the structure of a jury trial even when the error arises from identical constitutional deprivations. Thus, the failure to provide a jury trial on an element of an offense can, under some circumstances, cause no significant disruption to the core structures of a jury trial (Ring error) while, under other circumstances, it can fundamentally undermine the purposes of the jury trial guarantee altogether (Blakely error).

Second, the majority in Neder repeatedly suggests that it might have reached a different result if the omission in the case before it had more substantially undermined the structures designed to promote the reliability of a trial result. Initially, it observed that the omission of an element does not "necessarily" satisfy the Rose criteria for structural error. Neder, 527 U.S. at 9 ("An instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence."). Obviously, such reasoning does not preclude a finding of structural error when the omission has a comparatively more dramatic procedural impact. Moreover, in describing why "the omission of an element" would not "always render a trial unfair," the majority emphasized the limited impact of the procedural deprivation in that specific case. Id. at 9 ("Neder was tried before an impartial judge, under the correct standard of proof ...."). Finally, in rebutting Justice Scalia's critique that the court's logic would allow a trial court to direct a verdict against a defendant in a criminal case, an event characterized as structural error in Rose, the majority expressly limited its ruling allowing harmless error review to "the narrow class of cases like the present one." Id., 527 U.S. at 17 n. 2 (emphasis added).

Under the Rose analysis approved by the Court in Neder, the error in this case simply does not fall into the "narrow class of cases" addressed by Neder. Id. As discussed, Resendis-Felix did not receive the benefit of the reasonable doubt standard or the evidentiary and testimonial structure of a trial to challenge the aggravating factors the trial court ultimately found. And, unlike the circumstances in Neder and Ring, Resendis-Felix did not receive any formal notice of those aggravating factors the prosecution would seek to prove. But see United States v. Cotton, 535 U.S. 625, 632-34 (2002) (standing alone, failure to include Apprendi element in indictment not plain error).

Neder may be readily distinguished in one other respect as well. Resendis-Felix was not merely deprived of a jury trial on one element of an allegation that was otherwise proven to the jury as to all its other elements (the scenario in Neder). Rather, he was deprived of a jury trial as to each of the four aggravating factors found - as well as all of the potential subparts of each aggravating factor. In short, Resendis-Felix lost his right to a jury trial not merely as to one uncontested component of an offense otherwise proven in all other respects, but rather, as to the totality of the grounds for aggravating his sentence beyond the presumptive sentence. For this reason, a finding of structural error here would not require a new trial focusing primarily on already "contested issues on which the jury was properly instructed" during the first trial. Neder, 527 U.S. at 15. Rather, any such trial would focus exclusively on contesting issues that Resendis-Felix never had an opportunity to litigate in a trial forum.

Whether or not one agrees with the analysis, it does not invoke "the fact of a prior decision" exception to thoughtfulness.

Indiana's Blakely List for 2004 as of 12/27/04

As part of a year-end round-up of Blakely in its Hoosier incarnation, I have put together a document in Word format with a list of all the cases I know of that mention Blakely and their current transfer or rehearing status. There are hyperlinks to the cases attached to the case names. The link to the list is here.

There are 20 published Indiana appellate opinions and one memorandum decision (that I know of) that mention Blakely. Of the 21 cases, only 14, I think are really Blakely decisions. For example, Wilkie, the first Indiana case to mention Blakely is a non-Blakely decision, as is Ruiz, the only Indiana Supreme Court case to mention Blakely. So the cases are quite modest in number.

Of the 14 actual Blakely decisions, only 4 are final in the sense that they have been certified: Carson, Bledsoe, Krebs, and Teeters. Transfer has been denied in Bledsoe and Teeters. Transfer was not sought by either party in Carson or, suprisingly, Krebs. (Krebs is surprising, because the State has pursued transfer or rehearing in every other case reversing a sentence for Blakely error.)

All of the other cases are in various stages of rehearing or transfer. Holden is the subject of cross-petitions to transfer; Lampitok and Traylor are subjects of concurrent rehearing and transfer petitions. The litigation continues apace.

The only thing I think can be gleaned from the rehearing and transfer status of the cases is that the Supreme Court, by denying transfer in Bledsoe, has blessed Carson’s and Bledsoe’s broad reading of the prior conviction exception. Neither Heath nor Smylie involve prior convictions, so Bledsoe would appear to have been the first case (that we know about) coming to the Supreme Court with the prior conviction exception on the table. I can think of no (good) reason to pass up transfer (unanimously) in Bledsoe, unless the court has nothing more to add or subtract from the Carson / Bledsoe kitchen-sink approach to the prior conviction exception.

It is also at least interesting and, in a way, possibly ominous, that the Supreme Court has not denied transfer in any case reversing a sentence for Blakely error.

Will there be any more cases this year? There are not many ticks left to this year's clock.

Patrick v. State: The sky is not the limit.

Note: If a link is indicated and missing, I have not managed to put it in yet.

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Judge Najam, who wrote two of last week’s Blakely opinions from the Court of Appeals (Ryle and Berry), is back in the Blakely news with yet another opinion: Patrick v. State, Court of Appeals No. 71A03-0407-CR-312 (Ind. Ct. App. December 23, 2004). Judge Vaidik wrote an opinion concurring in part; and Chief Judge Kirsch concurred in part and dissented in part.

The majority reverses for Blakely error a 93-year sentence arising out of multiple convictions including Murder, Battery, and Criminal Confinement. I believe this is the first opinion from the Court of Appeals to apply Blakely in the context of a guilty plea.

The court summarizes the aggravating and mitigating circumstances found by the trial court as follows:

As we have discussed, the trial court identified five aggravating factors: (1) Patrick’s criminal history; (2) his probationary status at the time he committed the instant offense; (3) the victim’s age (relevant to murder only); (4) the likelihood that he will re-offend; and (5) the nature and circumstances of the crimes. Of those aggravators, the court explained that Patrick’s criminal history was "insignificant." Appellant’s App. at 817. Indeed, Patrick has only one misdemeanor conviction. The court also stated that the two "overriding" aggravating factors were the likelihood that Patrick will commit more crimes and the nature and circumstances of his offenses. Id. at 819. Those two aggravators are improper, and the sentencing statement shows that this is not a case in which the invalid aggravating circumstances played a relatively unimportant role in the trial court’s decision.

In addition to being the first plea opinion, the majority addresses one entirely new aspect of Blakely in Indiana. It dispenses with the State’s argument, made in the Heath and Smylie oral arguments as well, I believe, that a single valid aggravating circumstance opens up the entire range of sentence above the presumptive:

The State contends that once a defendant admits, or the jury finds, a single aggravating factor consistent with Blakely, the "statutory maximum" becomes the maximum sentence authorized for that class of offense and affords the trial court discretion to make additional factual findings that do not comply with Blakely. We cannot agree.

The State’s argument violates the critical holding in Apprendi that "[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." 530 U.S. at 490 (emphasis added). Moreover, the Court in Blakely applied the rule expressed in Apprendi to Washington’s sentencing scheme, and nothing in Blakely supports the State’s position that once one valid aggravator is either admitted by the defendant or found by the jury, the trial court has discretion to find additional aggravating factors on its own and use those additional factors to enhance a sentence. We conclude that because the trial court relied on two aggravating factors that were neither admitted by Patrick nor determined by a jury, his enhanced sentence implicates Blakely and violates the Sixth Amendment.

The State is not the only proponent of the argument rejected in this passage. Mike Limrick suggests that such is the law in his article about to appear in Res Gestae. Doug Berman at Sentencing Law & Policy has posted Mike’s article for downloading here. The echo of the State’s argument begins on page 5 with the discussion of Traylor. It’s about the only thing in the article I don’t agree with Mike about; and the article is a very fine summary of what the Indiana courts have done so far with Blakely.

There is a second jewel to Patrick. Judge Najam, now famous for his Blakely footnotes (see this post), drops a very important one in this case:

The State asserts that we should remand to the trial court for a jury determination on the aggravating circumstances. In support, it directs us to Lawrence v. State, 259 Ind. 306, 286 N.E.2d 830 (1972), in which our supreme court created the bifurcated trial procedure for habitual offender enhancements, which was later enacted by the legislature. But Lawrence did not involve sentencing. It is well-settled that when a trial court relies on improper aggravating factors, and the reviewing court cannot say with confidence that the permissible aggravators would have led to the same result, it should remand for re-sentencing by the trial court or correct the sentencing on appeal. See Means, 807 N.E.2d at 776; see also Sherwood v. State, 749 N.E.2d 36, 39-40 (Ind. 2001) ("Where we find an irregularity in a trial court’s decision, we have the option to remand to the trial court for a clarification or new sentencing determination; to affirm the sentence if the error is harmless; or to weigh the proper aggravating and mitigating circumstances independently at the appellate level."). Again, because we cannot say with the confidence that the trial court would impose the same sentence without considering the improper aggravators, and the trial court in this case is in the best position to balance the aggravators and mitigators, we remand for re-sentencing in light of the remaining aggravating factors.

(Emphasis added). This footnote seems to foreclose, on remand, a jury trial of the Blakely-affected aggravating circumstances. If so, there is now a split in the Court of Appeals on jury trials after remand. Recall that in Trusley, discussed in this post, the court said, also in a footnote, that there was no problem with a jury trial after a remand, despite the lack of statutory authority.

I cannot help but wonder if it really would not be better to take the approach of the Oregon Supreme Court in Dilts, leaving this particular issue to be litigated by the parties on remand. (I have not had the opportunity to post in detail about Dilts, but it is a very interesting and possibly important case arising out of a remand for reconsideration in light of Blakely by the United States Supreme Court about a week after Blakely was decided. It is worth reading if, for nothing else, it’s discussion of statutes that are only unconstitutional in some of their applications: State v. Dilts, Supreme Court No. S49525 (OR December 16, 2004).

There is a discussion in the case about harmless error analysis. I think it muddles Chapman harmless error analysis with the "harmless error" analysis of Appellate Rule 66(B). But that’s pretty common in the cases of the Court of Appeals.

Judge Vaidik concurs only in part, because she thinks whether a person is on probation is not derivative of criminal history and so is subject to Blakely. I believe hers is the first voice with that (almost certainly correct) opinion.

Chief Judge Kirsch dissents, because he thinks that Patrick did not preserve the Blakely issues for appeal when he was sentenced in March of this year. I believe that so far, only Judge Baker has agreed with Chief Judge Kirsch on the waiver issue.

It would have been helpful, I think, had Chief Judge Kirsch elaborated at least a little about why, in this first guilty-plea case, there is no Boykin or similar problem with the plea. I guess the elaboration would run something like Patrick was challenging his sentence, not his plea. So perhaps what needs elaboration is related to what Justice Sullivan pointed out during the Heath and Smylie arguments: Indiana appellate courts take up sentencing issues for the first time on appeal all the time. So why was a Blakely or Apprendi objection required in the trial court to preserve the issue for appeal?

There is really no argument in the majority opinion about waiver or foreiture of the Blakely issues. There is just a footnote saying the court rejects the State’s waiver arguments for the same reasons as Strong. (The footnote actually refers to "Ryle," so I guess the boilerplate didn’t get properly tidied. This happens to me all the time with pleadings and drives me bonkers.)

The Patrick court also follows Cowens with respect to consecutive sentences: Blakely does not affect discretionary consecutive sentences.

So will the Supreme Court give us Heath and Smylie on Christmas Eve? I think not. And I believe the court is pretty much shut down between Christmas and New Year’s.

Win98 and dial-up difficulties notwithstanding, I hope to put together some kind of summary about Blakely in Indiana at year’s end. And I highly recommend Mike Limrick’s article that’s to appear in Res Gestae which, again, is available thanks to Mike and Doug Berman here.

Christmas Eve is the big day here in Poland so . . .

Merry Christmas to all
And to all a Good-Night.

The Sunday Pickle

At home visions of convicts and armed guards haunted him all day and some, inexplicable, deep feeling of unease prevented him from reading and concentrating. In the evenings he did not light his lamp and he lay awake all night in constant fear he might be arrested, clapped in irons and thrown into prison. He was not aware of having committed any crime and could solemnly guarantee that he would never commit murder, arson or robbery. But then, it was so easy to commit a crime accidentally or unintentionally. And how about false accusations and a miscarriage of justice? All that was highly possible, nothing odd about it at all. Indeed, hadn't the folk wisdom of old taught that one is never safe from poverty or prison? Given the present state of the law a miscarriage of justice was very much on the cards--and no wonder. People who adopt a professional, bureaucratic attitude to the suffering of others--judges, policemen and doctors, for example--become hardened to such a degree, from sheer force of habit, that even if they want to they cannot help treating their clients strictly by the book. In this respect they are no different from peasants who slaughter sheep and calves in their back yards without even noticing the blood. Having adopted this formal, soulless attitude to the individual, all a judge needs to deprive an innocent man of his civil rights and to sentence him to hard labor is time. Just give a judge time to observe the various formalities (for which he receives a salary) and then it's all over. Fat chance, then, of finding any justice and protection in this filthy little town a hundred and twenty-five miles from the nearest station! And how ludicrous even to think of justice when society considers every act of violence as rational, expedient and necessary, when every act of mercy--an acquittal, for instance--provokes a whole explosion of unsatisfied vindictiveness!

-Anton Chekhov, Ward No. 6

Bledsoe: Transfer Denied

A lot has happened in the week since I left. Three cases from the Indiana Court of Appeals dealing with Blakely--and one of them rated a mention by Doug Berman at Sentencing Law & Policy. I'll comment on those cases over the weekend as I try to catch up. There's a lot to say.

Today, Marcia Oddi at The Indiana Law Blog put up the weekly transfer list (here), and it turns out that the Indiana Supreme Court has denied transfer in Bledsoe, Judge Baker's rehearing opinion from September 28th that follows Carson's quite expansive reading of the Almendarez-Torres / Apprendi prior conviction exception that was recapitulated in Blakely.I have no idea what the denial of transfer in Bledsoe might mean. The Bledsoe panel concluded that any Blakely issues had been waived, because they had not been raised in the direct appeal.

As I think I commented at the time or elsewhere, a rehearing petition is part of a direct appeal. This is especially true in Indiana, since if the Supreme Court later grants transfer, it takes the case as if it had been originally filed there--that is, as if the Court of Appeals had never seen the case. So I find it hard to imagine that the denial of transfer in Bledsoe reflects any sort of approval of the opinion's approach to waiver.

I guess I have to conclude that it looks as though the interchangeability of "fact of prior conviction" and "criminal history" is likely to prevail in Indiana for a while. We are not going to get a different answer on this from either Heath or Smylie, since neither case involves prior convictions.

Bledsoe is, of course, a peculiar application of the prior conviction exception. The Court of Appeals recites the following: "[T]he trial court relied upon Bledsoe’s prior criminal history, noted that his rehabilitation could only occur in a penal institution, that he was on probation at the time of the offense, and that the trial court believed that Bledsoe would continue to engage in criminal activities." For whatever reason, the Court of Appeals mentions everything but a prior conviction. If all of that the court mentions is merely "derivative" of Bledsoe's criminal history, it might have been nice to know in these uncertain times what the criminal history was.

Ahh. Back at it. With Windows 98 and a dial-up, ten stories up a couple of stones' throws from the Vistula.

Taking Wing

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There won't be any posts for a couple of days. Maybe I'll get a Sunday Pickle out from Warsaw. I sure do hope the jet stream's howling.

It's going to be interesting to see how blogging from the Big Kapusta is with a dial-up. It's where I started spending many late nights following Blakely developments last July.

At the beginning, I could read everything. As of a second ago, Lexis had 1,174 cases mentioning Blakely.

Na razie.

Williams v. State: The Indiana waiver debate begins.

In a split decision, the Court of Appeals issued its first opinion really addressing the waiver of Blakely issues today: Williams v. State, Court of Appeals No. 49A02-0402-CR-114 (Ind. Ct. App. Dec. 8, 2004) (Judge Robb writing for Judge Kirsch; Judge Baker concurring in result.) Judge Robb's opinion and Judge Baker's opinion set up and out the major aspects of the waiver dispute without going down the road of fundamental error. So the Court of Appeals is engaging the debate and contributing, perhaps, to the decisions in Heath and Smylie.

From the majority opinion explaining why Williams did not waive his Blakely issues:

[T]he State argues that Williams should have raised an objection under Apprendi. Indiana appellate courts have considered an Apprendi challenge to an enhanced sentence in a non-capital case only once. In Parker v. State, 754 N.E.2d 614 (Ind. Ct. App. 2001), we considered whether enhancing a defendant’s sentence for using a firearm during the commission of an offense was constitutional under Apprendi. In Parker, we reiterated the rule, under Apprendi, that any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Parker, 754 N.E.2d at 618. Referring to the term “prescribed statutory maximum,” we noted the following: 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. Parker, 754 N.E.2d at 618 n.7. Therefore, we impliedly held the “prescribed statutory maximum” under our sentencing statutes referred not to the presumptive sentence before any sentencing enhancements, but to the maximum sentence in the sentencing range provided by statute that a defendant could receive for his offense. Williams received three years for his Class D felony conviction, which was the maximum sentence in the sentencing range provided by our legislature for Class D felonies. Without expressing any opinion on the retroactivity of Blakely, it was reasonable for Williams to believe at the time of his sentencing that, because he was sentenced within the sentencing range for a Class D felony provided by our legislature, his sentence did not violate Apprendi, considering our decision in Parker. Thus, Williams has not waived this issue.

This is a slightly different, more formal exposition of Justice Sullivan's remark during the Heath and Smylie arguments that he is not sure why defendants should be penalized for not anticipating Blakely.

Judge Baker has a different view, thinking there should be a penalty:

Here, at no time before the trial court did Williams raise any objection—either specifically under Apprendi or generally under the Sixth Amendment right to trial by jury—to the court’s finding of aggravating circumstances or imposition of an enhanced sentence. Thus, I believe that the issue has been waived. See Mitchell v. State, 730 N.E.2d 197, 201 (Ind. Ct. App. 2000) (holding that when a defendant does not properly bring an objection to the trial court’s attention so that the trial court may rule upon it at the appropriate time, he is deemed to have waived that possible error). The United States Supreme Court issued its opinion in Apprendi, upon which the defendant in Blakely objected to his “exceptional” sentence, well before Williams’s sentencing hearing in January 2004. In my view, that the Apprendi rule was extended in Blakely is of no moment, inasmuch as Williams should have objected on Apprendi grounds and preserved this issue, just as the defendant in Blakely did.

(Emphasis added). Mitchell, cited in that snippet, is about the failure to object to an arguably impermissible conditional restitution order. I'm not sure how Mitchell supports a requirement to make an objection that controlling precedent has foreclosed.

Also, whether Blakely extended Apprendi is question entirely distinct from whether Apprendi objections were foreclosed by controlling precedent in Indiana. As I suggested yesterday in this post, it may well be that Blakely could object in Washington under Apprendi, because there hadn't been a Parker shutting the door.

The better argument to support Judge Baker's position might be that a footnote in a single case from the Indiana Court of Appeals is hardly controlling precedent and maybe only dictum. The controlling precedent was really Apprendi and Blakely didn't change a whit. So the failure to object was not reasonable--even if reasonableness is even in the calculus behind contemporaneous objection rule.

There is, of course, a downside to that from a prosecutorial perspective. That would take the cases in the direct appeal pipeline off the table; but it would set up very nicely ineffective assistance post-conviction claims in cases final before Blakely but after Apprendi. There are a lot of those.

Presumably Judge Baker's response to such ineffective assistance post-conviction claims would be that it was not deficient performance not to raise Apprendi objections because of Parker. But perhaps I presume too much.

I think the part of the part of the majority opinion affirming the enhanced sentences is at best confused on a number of points, but I'll have to get to that early next week, since I am in the near panic stage before leaving town for a while. That is to say, posts in the coming days are going to be brief at best.

Back on Our Heads: No Booker, No Fanfan

As reported here at 10:08 on SCOTUS Blog here, no Booker or Fanfan today.

So will the Indiana Supreme Court wait with Heath and Smylie? I seem to recall that the only other possible opinion day for the U.S. Supreme Court will be a week from Friday, December 17th, although I have done a quick search and cannot confirm that recollection.

[Update: SL&P reports SCOTUS Blog reports that December 13th is the only other possible opinion date. Tinkers to Evers to Chance. ]

On the Eve of Booker(?): Did Blakely change anything?

So the smart money seems to be on Booker and Fanfan coming down tomorrow. (See this post on Sentencing Law & Policy.) When the opinions do come down, I am going to be looking hard for is anything the Court says about what Blakely changed, if anything. Whether Blakely has changed anything has important implications for both waiver and retroactivity.

Recall on the one hand, there is Blakely itself, which has that almost chiding remark, "As our precedents make clear . . . ." I think it was only the Kansas Supreme Court and Mike Limrick who publicly, at least, understood what Jones, Apprendi, and Ring made "clear." In her Blakely dissent, Justice O'Connor seems to have understood the implication of "As our precedents make clear . . . .": retroactivity of Blakely to Apprendi, even if only "arguably."

Some courts, though, now confronted with Blakely, may decide latterly that everyone knew or should have know all along what Apprendi meant. The purest expression of this I have seen came in a recent Texas memorandum decision, Turner v. State, Tex.App. Lexis 10673 (Tex. Ct. App. 5th Dist. November 30, 2004) (mem.), in which the court said:

To preserve error for appellate review, a party must make a timely specific objection and obtain an adverse ruling from the trial court. See Tex. R. App. P. 33.1(a)(2); Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984). Appellant argues he was unable to assert this objection because Blakely was not issued until after his trial. However, the rule in Blakely on which appellant relies was stated previously in Apprendi v. New Jersey: "Other 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." 530 U.S. 466, 490 (2000) (quoted by Blakely, 124 S. Ct. at 2536). Accordingly, appellant could have relied on Apprendi in making his objection. Having made no objection, his complaint that the statutes as applied in his case--allowing the court to cumulate his sentences without a decision by the jury--is not preserved for our review. We resolve appellant's first issue against him.

(Emphasis added) (footnote omitted) (parallel citations omitted).

On the other hand, there are the "sea change" courts (Ameline (9th Cir.) (7/21) that see Blakely has having changed a great deal. It is much easier to grant relief under Griffith v. Kentucky in direct appeal cases where there was no Apprendi objection, if Blakely changed a lot, the 11th Circuit's opinion in Levy notwithstanding.

So the courts that say Blakely changed nothing are really the tougher crowd on defendants. While that conclusion may get defendants retroactive application of Blakely to Apprendi--at least in the sense that the Apprendi rule has been the law since Apprendi--almost no one will have made the Apprendi objection. In many cases that will have been because in every Circuit Court of Appeals and many states, like Indiana, Apprendi objections had been foreclosed by controlling precedent.

Interestingly, before Blakely, the Washington Supreme Court had at least once, from my cursory research, applied Apprendi in Blakely-esque fashion: "It is clear under Apprendi the identity of the controlled substance is an element of the offense where it aggravates the maximum sentence with which the court may sentence a defendant. Apprendi, 530 U.S. at 490." State v. Goodman, 83 P.3d 410, 416 (Wash. January 15, 2004). So perhaps it should not be surprising that Blakely raised an Apprendi objection to his sentence, if the objection had not been foreclosed, apparently, by Washington precedent. (The state of the law in Washington at the time of Blakely's sentencing may have been much murkier. A 2002 Washington Court of Appeals Case treats an Apprendi challenge to a sentence enhancement in the more common, pre-Blakely fashion: State v. Shaffer, 55 P.3d 668, 672-73 (Wash. Ct. App. 2002) ("[T]he two year sentence enhancement does not increase the punishment for vehicular homicide beyond the statutory maximum, which is life imprisonment.").)

Blakley World gets much more interesting for defendants, though, if at least some Blakely errors are non-waivable, as the Federal Defender for the Northern District of Texas argued in this Booker / Fanfan amicus brief, which I discussed in this earlier post.

Ruiz v. State: We're not giving any hints.

The Indiana Supreme Court issued a sentencing opinion today: Ruiz v. State, Supreme Court No. 48S02-0407-CR-329 (Ind. December 7, 2004). It is not a Blakely case. The court reduced a maximum 20-year sentence for a Class B felony to a the presumptive of 10 years. The aggravating circumstances were pure prior convictions that the court did not find particularly aggravating.

So this is arguably the third non-Blakely Blakely case from the Supreme Court since June 24th. Recall the first two were Merlington (8/31), in which the court reduced a 45-year sentence to the 30-year presumptive sentence for a Class A felony, and Francis (11/9), in which the court reduced a maximum Class A 50-year sentence to the presumptive 30 years. (I discussed both cases earlier in this post). It is only arguably the third in a series, because both Merlington and Francis involved aggravating circumstances subject to Blakely, if Blakely applies to Indiana sentencing. Ruiz only involves prior convictions, so even if the court tells us in Heath and Smylie that Blakely does apply to Indiana sentencing, that news would make no difference to Ruiz's case.

It is the third in the series, however, insofar as the court reduces a maximum or near maximum sentence to the presumptive. I have not done the research, but I cannot recall a case in which the Supreme Court has reduced a sentence to less than the presumptive even before Blakely.

Nevertheless, I do not think it should escape notice that the court is clearly keeping its powder dry and avoiding unnecessary footnotes or other asides in these sentencing decisions. The most it has said, actually, is through the denial of transfer (11/12) (discussed in this earlier post) in Wilkie, the case in which Judge Najam dropped the footnote leaving Blakely for another day.

I hated sentencing issues as a law clerk. I hated sentencing issues as a Deputy Attorney General. I have hated sentencing issues in private practice. My eyes have generally glazed over at the sentencing portions of the opinions that have come down over the years.

If someone had told me in May that I'd soon be picking sentencing cases apart quark by quark, essentially playing LSAT games with every available datum, I'd have suggested that person needed to take the waters. And religiously reading a thing called a "blog" with the name like Sentencing Law & Policy? Utterly impossible.

But as my four-year old said to me the other day in the car on the way to preschool, when I didn't particularly want to talk to him after a particularly difficult exit from the house, "Poppa, everything changes." Of course, when I asked him if he changes too, he said, "No."

Wright v. State: Of course, some people do go both ways.

The Court of Appeals decided a puzzling case today: Wright v. State, Court of Appeals No. 49A02-0405-CR-405 (Ind. Ct. App. December 6, 2004) (Judge Baker writing for Judges Sharpnack and Friedlander). The case affirms, inter alia, three consecutive 15-year sentences for Class B felonies. There is no criminal history in the case and not a word about Blakely.

The opinion is even more puzzling, because briefing in the case was completed on October 8th, and the case was submitted to the court for a decision on November 5th. So the timing did not preclude raising Blakely.

Wright appealed his sentence, and the aggravating circumstances fell into two categories: "(1) the heinous nature and circumstances of the crimes; and (2) Wright’s character." Those would seem to be right down the middle of the Blakely plate.

Judges Baker and Friedlander were both involved in Bledsoe (9/28). Following Carson (8/20), Bledsoe found the Blakely issues technically waived, because they had been raised for the first time in a petition for rehearing and therefore not "in the direct appeal." Carson was also a rehearing opinion; and Carson and Bledsoe both said that the appropriate vehicle to raise Blakely would have been a post-conviction petition, but went on to deny relief on the merits anyway.

As long as I'm on the subject of rehearing opinions, there's also Wickliff (11/03). Not a word there about waiver, even though Blakely was not raised until the rehearing petition. Judge Robb wrote that opinion; Judge Sharpnack concurred.

Judge Baker was also involved in Lampitok (11/16), in which the court dropped a footnote that Lampitok had not raised any Blakely issues, but Blakely would not affect Lampitok's sentence, if he had. So did Judge Baker not raise Blakely on his own in Wright because it would have made a difference?

Recall that we have two opinions, Krebs, which is published, and Baehl (9/29), which is not, that raise Blakely sua sponte. And now that I have gone back to look, Judge Sharpnack actually wrote Baehl. He said there: "Although we would not normally raise [Blakely] sua sponte, we do so here because of the short duration of Baehl's sentence and the unusual circumstances of this case." Slip op. at 3. So Judge Sharpnack signed on to Wright because Wright's sentence isn't short? (As I mentioned here when Baehl first came out, the only thing unusual about Baehl, as far as one could tell from the opinion, was its timing with respect to Blakely).

While not the procedural mess presented by the differing approaches of the various Ohio appellate districts discussed by Doug Berman at Sentencing Law & Policy in this post, it seems to me a mess nonetheless. And the mess is worse here, in some respects, because the Indiana appellate districts no longer matter except politically. (Perhaps someone will raise a challenge to that particular unconstitutional arrangement. I did once, sort of, obliquely, and lost: McCullough v. McCullough.) The mess is worse because the opinions do not explain the entirely contradictory approaches to Blakely and why the very same judges are producing the contradictions.

The situation reminds of something Lee Hays of the Weavers is reported to have said: "The older I get, the more interesting my mind becomes. I don't always agree with it, but it's more interesting."

Opinions are coming from the United States Supreme Court tomorrow and Wednesday, one or more each day, apparently. (See this post on SL&P, drafting off of SCOTUS Blog) If Booker and Fanfan are among them, perhaps Heath and Smylie will follow relatively quickly--as in by the end of next week--and the Great Cat Roundup will begin.

Blakely & Levy (11th Cir.): First Comments

Doug Berman at Sentencing Law & Policy mentioned the denial of rehearing en banc in U.S. v. Levy, a Fifth Circuit decision here and here. The opinion / order on the court's website is here. A number of people have reported trouble opening the file; and I have found access to the 11th Circuit's server intermittent. So I have put the opinion up here temporarily. I suggest downloading and opening it in Acrobat instead of relying on the browser plug-in to open it.

Both the majority and dissenting opinions are extremely interesting and maybe even important. The majority opinion's discussion of Griffith v. Kentucky looks plausible on its face, but for reasons I will explain in a later post, at the moment I think it is practically nonsense. Essentially, it assumes the Blakely issue it finds defaulted is subject to default. This is one of the things that makes the issue of waiver such a briar patch, as Judge Posner called it in LaGiglio. For example, if Blakely error produces a Boykin problem, is that problem waivable?

And while the 11th Circuit's attempt to limit Griffith to the cases facts, which involve objections preserved even in the face of controlling contrary precedent, I'm not certain that Griffith can be so limited if, for example, one reads the Court's application of Griffith in Powell v. Nevada, 511 U.S 79 (1994), which applies the 48-hour rule for probable cause determinations after a warrantless arrest made in County of Riverside v. McGlaughlin, 500 U.S. 44 (1991). There is also what the Court said in Johnson v. Texas, 509 U.S. 350 (1993), that makes the Levy majority's analysis suspect:

But the finality concerns of Teague come into play only after this Court has denied certiorari or the time for filing a petition for certiorari from the judgment affirming the conviction has expired. See Griffith v. Kentucky, 479 U.S. 314, 321 , n. 6 (1987). Until that time, the interests of finality and comity that caused us to implement the Teague standards of retroactivity are not at issue. The only demands with which we need, indeed, must, concern ourselves are those of the Constitution. On direct review, it is our constitutionally imposed duty to resolve "all cases before us . . . in light of our best understanding of governing constitutional principles," Mackey v. United States, 401 U.S. 667, 679 (1971) (Harlan, J., concurring in judgment), without regard to reliance interests of the State.

(Emphasis added).

The Sunday Pickle

Russia
by David Kirby

A woman lifts a wine bottle
and brings it down
on the head of her lover,
who falls dead at her feet.

At the trial a student
leaps up, pale with love,
and shouts I did it,
so they take him away.

When he gets out of prison,
he goes down to the river,
where he sees the woman
reading under a tree.

She has become
a young girl again.
He offers her a bouquet
and says marry me, marry me

but she throws the flowers
in the water and says nothing.
It is most the beautiful
day of his life.

Blakely, Pleas & Changes of Judge: A Small Success

The four published Indiana cases reversing sentences on Blakely grounds (Trusley, Traylor, Strong, and Krebs) all involved appeals after trials. They also all involved appeals in which no Blakely objection could have been raised. (Apprendi objections, recall, had been foreclosed in Indiana by Parker, decided in August 2001, in which the Court of Appeals said in footnote 6 that the Apprendi "statutory maximum" was 50 years for a Class A felony and not the presumptive sentence.) There have not been any published cases dealing with Blakely in the context of a guilty plea; and I do not know of any unpublished cases on the subject, although they may exist.

I picked up a client recently who was heading for a sentencing hearing yesterday, having pled guilty and having had the court accept his plea in the spring. After some delays over the summer, the hearing had been set for September. In September, my client's other lawyer, now my co-counsel, raised Blakely, and the court put off the hearing again after consulting with the Judicial Center. In October, my client moved to withdraw his plea, which the court denied--on the same day Krebs was decided, actually.

So I got involved and filed a renewed motion to withdraw the plea and a motion for changes of judge and venue. As alternative relief in the renewed motion to withdraw the plea, I asked that the court certify any denial of the motion for interlocutory appeal or that the court simply wait until HeathSmylie have been decided.

Had I been the judge, I think I would have simply waited for Heath and Smylie to come down. Instead, the motion for a change of judge was granted, and yesterday's sentencing hearing was vacated.

The theory supporting the request for the change of judge and venue was that after Blakely, courts have no business doing presentence investigations involving aggravating circumstances that are facts of prior convictions--or now, generally and mistakenly, in my opinion, criminal history. By statute, the probation officers all serve at the pleasure of the courts they serve. In my case, the probation officer alleged four aggravating circumstances having nothing to do with prior convictions, since there are none, and recommended either that the plea agreement be rejected or that a sentence above the presumptive be imposed. The basis for one aggravating circumstance arose from an interview of my client by the probation officer.

After Blakely, the State has to "charge" and prove aggravating circumstances, so the court, through its probation department, had acted as a second prosecutor. That's not quite cricket, so this judge had to get off the case, I suggested; and since the same probation department works for all of the courts in the county with criminal jurisdiction, I also suggested that my client was entitled to a change of venue to a court uninvolved in the criminal investigation of his case. I finally suggested that the existing presentence investigation report be stricken from the record.

So far as I know, only the change of judge has been granted. Because everyone has been so generous with their pleadings as we all muddle along in Blakely World, the motion to withdraw the plea is here in WordPerfect and here in PDF. The motion for changes of judge and venue are here in WordPerfect and here in PDF. The critical paragraph from the motion for a change of judge was, I think, the following:

Because this Court has itself, through its Probation Department, investigated and “charged” the aggravating circumstances, now essential elements of the offense, included in the PSI, this Court has acted a second prosecutor, and __________ is entitled to a change of judge. Ind. Crim. Rule 12(B); see also In re Morton, 770 N.E.2d 827, 831 (Ind. 2002) (under Judicial Canon 3(E)(1), judge’s impartiality could reasonably be questioned where he initiated a criminal investigation). Perhaps more importantly, it would be a violation of federal due process for this Court to continue presiding over this case, having “occupie[d] two practically and seriously inconsistent positions, one partisan and the other judicial . . . .” Ward v. Monroeville, 409 U.S. 57, 60 (1972). See also Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971) (Due Process Clause requires “a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor.” (Citation omitted)); In re Murchison, 349 U.S. 133, 136 (1955) (The requirements of due process “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.”)

Perhaps my search capabilities are not what they ought to be, but I could not really find any cases dealing explicitly with the theme of "judge as second prosecutor."

Finally, perhaps usefully, here's the current (whopper) citation for the cases holding that the Indiana "presumptive" sentence is the Apprendi / Blakely "statutory maximum":

In the context of Indiana’s sentencing scheme, the “statutory maximum” is the presumptive, “fixed” sentence for a given class of felony—four years in the case of a Class C felony under Indiana Code Annotated § 35-50-2-6(a) (Burns Supp. 2004). Krebs v. State, 816 N.E.2d 469, _____, 2004 Ind.App. LEXIS 2055, *15-16 (Ind. Ct. App. October 20, 2004) (“ [I]t 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.”); accord Trusley v. State, 2004 Ind.App. LEXIS 2321, *5 n.6 (Ind. Ct. App. November 24, 2004) ([T]he Indiana presumptive sentence amounts to Blakely’s statutory maximum. See Holden v. State, 815 N.E.2d 1049, 1059 n.6 (Ind. Ct. App. 2004).”); Traylor v. State, 2004 Ind. App. LEXIS 2229, *26 (Ind. Ct. App. November 10, 2004) (“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.”); Strong v. State, 2004 Ind. App. LEXIS 2191, *17 (Ind. Ct. App. November 5, 2004) (“[I]nasmuch as Indiana's present sentencing procedure allows a trial court, without the aid of a jury, to enhance a sentence where certain factors are present, it violates a defendant's Sixth Amendment right to have a jury determine all facts legally essential to his or her sentence, pursuant to Blakely. (Footnote omitted).); see also Holden v. State, 815 N.E.2d 1049, 1059 n.6 (Ind. Ct. App. October 13, 2004) (“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.”). purposes.”);

Obviously, some of the Lexis cites will change in relatively short order to Northeast cites. Also obviously, the Indiana Supreme Court may make all of this wrangling irrelevant in possibly even shorter order. (With Booker and Fanfan nowhere in sight, my guess is that the ISC is not going to wait much longer with Heath and Smylie, especially if the court is going to hold that Blakely does not affect Indiana sentencing.)

Trusley, Ohio Writs & Misappropiated Precedent

Back again after having spent some time in the world of praxis instead of theory. More about praxis later or early tomorrow. (It was really quite an exciting day.)

In the meantime, Doug Berman at Sentencing Law & Policy reported here in some detail on case from Ohio that I think makes very interesting reading for us Hoosier neighbors. It's State ex rel. Mason v. Griffin, 2004-Ohio-6384 (OH December 1, 2004), in which the Ohio Supreme Court issued a writ of prohibition preventing a trial judge from convening a sentencing jury. (The link is temporary, I believe.) It was actually the prosecutor who filed for the writ, which is an interesting twist.

The short version is that the Ohio Supreme Court prohibited the trial judge from presiding over a sentencing jury, because nothing in the Ohio Constitution or in any statute authorized such a creature. "In fact, the sentencing statutes pertinent to Moore’s criminal cases vest the exclusive responsibility to make these determinations in the court and not in a jury." Slip op. at 5. (Quotation from various statutes follow). The critical paragraph of the decision follows:

Moreover, insofar as Judge Griffin determined that Blakely might render these statutes unconstitutional, he should apply the pertinent sentencing statutes without any enhancement provisions found to be unconstitutional by him. Instead, he ordered a hybrid procedure – a jury-sentencing hearing to make certain findings upon which he would base his sentencing decision – that is not sanctioned by any current or former version of a statute. That is, Judge Griffin had two choices: (1) apply the statutes as if Blakely did not render them unconstitutional and conduct a sentencing hearing without a jury or (2) find the statutes unconstitutional under Blakely and refuse to impose those enhancement provisions he deemed unconstitutional. By choosing neither, he proceeded in a manner in which he patently and unambiguously lacked jurisdiction to act.

Slip op. at 6.

Recall what the Indiana Court of Appeals said in its footnote in Trusley just over a week ago in blessing sentencing juries in Indiana:

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.

(Emphasis added).

The Ohio Supreme Court appears to think courts may only do what the Ohio legislature expressly authorizes. The Indiana Court of Appeals, however, thinks courts may do what they will, so long as the Indiana General Assembly has not prohibited the act.

On the subject of the statutes involved and their "constitutionality," if Blakely applies to Ohio's sentencing scheme--Mason does not decide this small matter--the Ohio statutes quoted by the Ohio Supreme Court are almost certainly unconstitutional on their face--at least in the sense that Ohio's determinate sentencing scheme under the statutes cannot be "implemented in a way that respects the Sixth Amendment," as Blakely puts it. For example, one Ohio statute at issue reads, as quoted in Mason:

[I]f the offender commits a felony violation * * * that includes the sale, offer to sell, or possession of a schedule I or II controlled substance, with the exception of marihuana, and the court imposing the sentence upon the offender finds that the offender is guilty of a specification of the type described in section 2941.1410 of the Revised Code charging that the offender is a major drug offender * * * the court shall impose upon the offender for the felony violation a ten-year prison term * * *.

Slip op. at 5 (internal quotations omitted). The enhanced sentence in the statute is based entirely on facts found by a judge and apparently without any standard for the finding.

Indiana Code § 35-38-1-3, recited in part in the Trusley footnote, is really the critical Indiana non-capital sentencing statute. It provides in full:

Before sentencing a person for a felony, the court must conduct a hearing to consider the facts and circumstances relevant to sentencing. The person is entitled to subpoena and call witnesses and to present information in his own behalf. The court shall make a record of the hearing, including:

(1) a transcript of the hearing;
(2) a copy of the presentence report; and
(3) if the court finds aggravating circumstances or mitigating circumstances, a statement of the court's reasons for selecting the sentence that it imposes.

(Emphasis added). Interestingly, the Court of Appeals focused entirely on the first sentence of the statute and left out any discussion subsection (3) altogether. While I had been thinking that the Indiana statutes might all be constitutional on their face, subsection (3) now appears to me as facially offensive to Blakely as the Ohio statutes recited in Mason.

In my earlier post about Trusley, I invited comments about saving constructions of statutes not unconstitutional on their face. Marcia Oddi of the Indiana Law Blog took the time and interest to do what I would normally do, if I weren't having a severe brain cramp--she looked at the precedent relied upon by the Court of Appeals in the Trusley footnote, and sent me the following observations, which I have found instructive, and which she has given me permission to post in their entirety:

---

Here are my thoughts re the Trusley v. State footnote:

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.

I looked at There to Care. The statute at issue was clear on its face, in my opinion. The Dept. of Revenue's reading was wrong. That is what the court found too. There was no need for it to go further and the entire paragraph beginning "At the same time, we must interpret a statute in a way that renders it constitutional ..." quoted in Trusley is irrelevant, in my opinion. More below ...

From There to Care:

Specifically, the Department contends that the Act required an organization to operate in Indiana for at least five years before it could become "qualified." Under that interpretation, neither corporation was "qualified" at the time the licenses were revoked in October of 1992. While both had been in existence for well over five years, neither had been operating in Indiana for five years.

DISCUSSION

The Charity Gaming Act applies only to "qualified organizations," I.C. 4--32--1--1(a), and the only issue on appeal is the construction of the statute then in effect defining that term. * * *

We agree with the trial court that the Department's construction is "strained," but believe the Department has pointed out a grammatical ambiguity sufficient to allow us to examine the meaning of the provision. We may not construe a statute when its plain language is unambiguous, but when the language is subject to more than one reasonable interpretation, it is open to construction by the courts. Spier by Spier v. City of Plymouth (1992), Ind.App., 593 N.E.2d 1255, 1261, reh'g denied, trans. denied. When construing a statute, our objective is to determine and effect the intent of the legislature. Park 100 Development Co. v. Indiana Dept. of State Revenue (1981), Ind., 429 N.E.2d 220, 222.

At the same time, we must interpret a statute in a way that renders it constitutional. Willis v. State (1986), Ind.App., 492 N.E.2d 45, 47. When a statute can be construed to support its constitutionality, that construction must be adopted. Matter of Tina T. (1991), Ind., 579 N.E.2d 48, 56. Because the Department's interpretation of the definition of "qualified organization" would render the statute unconstitutional as violative of the commerce clause, we hold that a charity, in order to be a "qualified organization," need not be in existence in Indiana for a period of five years before becoming eligible for a bingo license under the Charity Gaming Act.(fn1)

The court in There to Care quotes a Supreme Court decision, In re Tina T., 579 N.E.2d 48, for its statement that "When a statute can be construed to support its constitutionality, that construction must be adopted." That is not exactly what the court said, and that is where these appeals court rulings have gone wrong. The SCt's words are "Legislation under constitutional attack in this Court is clothed in a presumption of constitutionality."

From In re Tina T.:

We turn now to address the merits of this case. The juvenile court held that I.C. 31-6-14-1 et seq. is unconstitutional and enjoined its further enforcement, and the State appealed directly to this Court. The standard for assessing constitutional challenges is as follows:

Legislation under constitutional attack in this Court is clothed in a presumption of constitutionality. The burden to rebut this presumption is upon any challenger, and all reasonable doubts must be resolved in favor of an act's constitutionality. When a statute can be construed to support its constitutionality, such construction must be adopted. Miller v. State (1987), Ind., 517 N.E.2d 64, 71 (citations omitted). Further, it is the challenger's burden to show that the alleged constitutional defects are clearly apparent. Grassmyer v. State (1981), Ind., 429 N.E.2d 248.

So, first the constitutionality of the statute must be under attack. SECOND, even if the statute were under attack, the Court cannot rewrite it beyond its reasonable interpretation. Otherwise, we would need statutes with little annotations under them clarifying -- "this is what the court says the statute really means."

---

Quite. That is, I think the Trusley panel was underhandedly doing a great deal more than merely taking a different approach to government than the Ohio Supreme Court. The court focused on the facially inoffensive part of § 35-38-1-3, citing There to Care for the inapposite and innocuous proposition about saving constructions of statutes. With precisely the same citation, the footnote could have read, more correctly I think, something like:

The State would have us construe § 35-38-1-3 to permit sentencing juries. It is true that we may construe a statute when the language is subject to more than one reasonable interpretation. There to Care. But "[w]e may not construe a statute when its plain language is unambiguous." Id. In this case, § 35-38-1-3(3) unambiguosly provides for the finding of aggravating and mitigating circumstances by "the court." From this it is clear that the General Assembly did not intend for jury-involvement in non-capital sentencing, except in habitual offender and other similar proceedings for which it specifically has provided sentencing juries.

In any event, there is reason to be grateful that the Trusley footnote is pure dictum.