Back at It: Two Rehearing Opinions

I'm back. It's been a long time since the last post on January 3rd. No Sunday pickles, no nothing. Ugly traveling, followed by uglier diseases, followed by mid-winter burst pipe, followed by post-Cabbage Patch catch-up, which is far from caught up . . .

Fortunately, all that has happened is Booker and Fanfan were handed down. No big deal, as it turns out, for the States, anyway. Or maybe it will be. Maybe the Indiana Supreme Court, for example, will declare unconstitutional a select few statutes that are not unconstitutional on their face a la Booker. I'd not have thought such an approach would pass the laugh test. After Booker, good luck with a due process challenge on cert. to such an approach.

There have only been a couple of Blakely opinions from the Court of Appeals thus far this year, both on rehearing. The first, rehearing in Strong v. State, Court of Appeals No. 49A02-0401-CR-25 (Ind. Ct. App. January 12, 2003), granting reh'g is all about waiver / procedural default. (Judge Bailey writing for Judges Sharpnack and May). The original opinion from November 5th is here and had this to say about the State's waiver argument in the first instance:

Indeed, in Apprendi, the statutory maximum was the ten-year prescribed statutory maximum, which a defendant could receive for a second-degree offense if the preponderance of certain aggravating and mitigating circumstances, as found by the trial court, weighed in favor of the higher term. By contrast, in Blakely, the “statutory maximum” is the maximum sentence that a trial judge may impose without any additional findings, i.e., the presumptive or standard sentence. Because Blakely redefined the “statutory maximum” for purposes of Apprendi, a defendant, such as Strong, who challenges his enhanced sentence but fails to do so on grounds of Apprendi has not waived his argument pursuant to Blakely. Accordingly, we find no waiver. Moreover, we note that Strong’s failure to object to his enhanced sentence at the trial level, by itself, does not constitute waiver. Instead, the right to a trial by jury, which is a fundamental right guaranteed by the Sixth Amendment of the federal Constitution and by Article 1, Section 13 of the Indiana Constitution, is subject to a knowing, intelligent, and voluntary waiver. Leone v. State, 797 N.E.2d 743, 752 (Ind. 2003). A defendant’s failure to object is not tantamount to such an affirmative act of waiver.

(Footnote omitted).

The rehearing opinion is somewhat less categorical. After reiterating and reaffirming the discussion above, the court says:

We caution, however, that this holding should not be interpreted to imply that a defendant might never waive his or her Blakely argument. Rather, there are circumstances wherein a defendant may waive his or her Blakely contention. For example, as noted by the Blakely court, guilty plea defendants may waive their Apprendi rights by either stipulating to the relevant facts supporting the sentence enhancements or consenting to judicial factfinding. Blakely, 124 S. Ct. at 2541.

Additionally, a defendant may “waive” the right to raise an issue at a particular juncture through procedural default. See Bledsoe v. State, 815 N.E.2d 507, 507 (Ind. Ct. App. 2004) (holding, on petition for rehearing, that a defendant had “technically waived” any argument that his sentence violated the Sixth Amendment right to have the facts supporting the enhancement of his sentence determined by a jury, pursuant to Blakely, because he raised such issue for the first time on rehearing when he should have raised it during the direct appeal, i.e., the appropriate procedural “juncture”), trans. denied; see also Carson v. State, 813 N.E.2d 1187, 1188-89 (Ind. Ct. App. 2004) (“Given that Carson did not challenge his sentence on direct appeal, he has technically waived review of this issue, and the appropriate procedure would have been to challenge his sentence through post-conviction relief. See Ind. Post-Conviction Rule 1(a)(1).”), reh’g denied.

(Footnotes omitted). I cannot reconcile the two opinions, unless the court is saying that Strong would have been out of luck had he raised Blakely for the first time in his rehearing petition. The difference between Strong and Carson and Bledsoe with respect to procedural default is, of course, that rehearing petitions were the first opportunity for Carson and Bledsoe to raise the Blakely arguments / claims. So maybe yes, Strong should have been out of luck had he not raised Blakely in his opening brief.

The unambiguous lesson of Strong appears to be that the failure to object in the trial court, even after Blakely, does not constitute either a waiver or procedural default of the claim.

The second rehearing opinion came today in Aguilar v. State, Court of Appeals No. 49A05-0307-CR-370 (Ind. Ct. App. January 18, 2005), granting reh'g. Judge Crone wrote for Judge Barnes, who wrote a concurring opinion; Judge Baker, predictably now, dissented. The majority opinion says nothing about waiver or procedural default. It does however remand for resentencing by a jury, at the State's option, over a double jeopardy argument by Aguilar.

I still wonder where the authorization for a jury trial of Blakely aggravators comes from. (Small potatos, I suppose, compared to what the Remedy 5 did in Booker.) So the split in the Court of Appeals widens a bit: Trusley, in a footnote, says juries are just fine; and the Aguilar court here moves it into text, although there is still no explanation of how a sentencing jury is authorized. Patrick, on the other hand, appears to say no to sentencing juries. See this earlier post.

Judge Barnes concurring opinion treats waiver as follows:

I concur fully, but point out the specific chronology of this case. Aguilar was sentenced on June 27, 2003, and he timely initiated a direct appeal. The case was fully briefed as of May 24, 2004. Blakely was decided on June 24, 2004. We affirmed his conviction on July 9, 2004, and Aguilar filed this petition for rehearing on July 19, 2004, well within the thirty-day limit for filing a rehearing petition. See Ind. Appellate Rule 54(B).

It is clear that newly announced constitutional rules must be applied to all cases still pending on direct review when the rule was announced. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987). The fact is this appeal was in our pipeline when Blakely was handed down and the rehearing petition was timely filed. Blakely was decided before our original opinion in this case was certified as final. Aguilar’s direct appeal was still pending when Blakely was decided and, therefore, it must be applied here.

In another set of circumstances, I would not be as kindly disposed to the appellant. This remand for sentencing does not open all previous aggravated sentences to collateral attack under Blakely.

(Emphasis added). So Judge Barnes comes out on the side of Strong and opposed to CarsonBledsoe: if rehearing is the first opportunity to raise Blakely, then there is no procedural default. and

Judge Barnes' opinion is also the first, I believe, to raise the spectre of retroactivity. I guess we'll have to wait on Heath and Smylie to see what direction that will go. Although neither raises the issue of retroactivity, if the Supreme Court finds the Blakely claims waived or procedurally defaulted for failure to raise an Apprendi objection in the trial court, full retroactivity for Blakely will be essentially meaningless.

Judge Baker has his Blakely waiver boilerplate all set up:

I respectfully dissent from the majority’s decision to grant rehearing in this case, inasmuch as Aguilar has raised the Blakely issue for the first time on rehearing. As a panel of this court observed in Carson v. State, 813 N.E.2d 1187, 1188-89 (Ind. Ct. App. 2004), a defendant who fails to challenge his sentence on direct appeal has waived the issue. See also Mitchell v. State, 730 N.E.2d 197, 201 (Ind. Ct. App. 2000), trans. denied, (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].

I commented on Judge Baker's approach / position in this earlier post about Williams, the first case really to engage the waiver / procedural default debate. I don't have anything to add here, except that, again, apparently Chief Judge Kirsch is the only judge on record (in his dissent in Patrick--) to agree with Judge Baker. See this earlier Christmas Eve post on Patrick.

With Booker on the books and no real guidance to be divined therefrom, we should be expecting decisions in Heath and Smylie almost momentarily.

And so it goes, back home in Indiana. And thank all numinal beings for Doug Berman, who doesn't miss a beat and is, all in all, more reliable than even certified mail.