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.
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.
(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)
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.
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.
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