Payne & Campbell: More from the Nether World

A blog helper got me copies of Campbell and Payne, the two unpublished decisions discussed in my previous post in which the Supreme Court granted transfer. In Campbell, the Supreme Court remanded to the Court of Appeals for reconsideration in light of Smylie. In Payne, the court remanded to the trial court for imposition of consecutive presumptive sentences because, the court said in its order, it was unlikely that Payne's enhanced sentences could survive after Smylie.

The aggravating circumstances recited in the Court of Appeals' opinion in Payne and which are subject to Blakely are, generically the following: 1) the risk of future criminal conduct; 2) the potential future threat to the victim; 3) the nature and circumstances of the crime; 4) the defendant occupied a position of trust with respect to the victim; the violation of pre-trial protective orders; 5) the defendant threatened a witness and court staff; 6) the defendant's need of treatment that can best be provided in a penal facility; 7) the victim's age; and 8) the crimes were committed in the victim's home.

Recall that in Campbell, I speculated that the reason the Supreme Court has remanded the case to the Court of Appeals for reconsideration in light of Smylie is that Campbell did not forfeit her Blakely claim under Smylie's forfeiture rule. Now that I've seen the opinion, I appear to have been correct about that. The Court of Appeals refused to consider Campbell's Blakely claim, because she had not raised an Apprendi objection at sentencing.

Recall also Campbell is one of three Blakely cases (that we know about) decided by Judge Baker, Judge Robb, and Chief Judge Kirsch. The other two are Mitchell and Williams. Judge Baker wrote both CampbellMitchell, which were handed down as unpublished decisions on October 29 and November 22, 2004, respectively, with both Judge Robb and Chief Judge Kirsch concurring. (Mitchell was published on January 18, 2005.) and

So on October 29th and November 22nd, Judge Robb and Chief Judge Kirsch both voted for the following identical language from Judge Baker's pen regarding forfeiture of Blakely claims:

The United States Supreme Court issued its opinion in Apprendi, upon which the defendant in Blakely objected to his “exceptional” sentence, well before Mitchell’s sentencing hearing in 2004. That the Apprendi rule was extended in Blakely is of no moment, inasmuch as Mitchell should have objected on Apprendi grounds and preserved this issue, just as the defendant in Blakely did. As a result, we decline to disturb Mitchell’s sentence.

On December 8, 2004, 16 days after Mitchell was decided, Williams came out, with Judge Robb writing for Chief Judge Kirsch:

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.

I did post about Williams the day it came out, calling the decision the beginning of the Blakely waiver debate. I just had no idea that two of the judges involved were debating themselves.

It actually gets uglier. On December 1st, still before Williams had been decided, Campbell requested rehearing. On December 23rd, 15 days after Williams, the Court of Appeals denied the request. I have spoken with one of the lawyers representing Campbell in the Court of Appeals, and the rehearing request did include a request to reconsider the waiver issue.

So when rehearing in Campbell was denied on December 23rd, Williams had specifically held that an Apprendi objection at sentencing was not required to preserve a Blakely claim on appeal, while Holden and Krebs had impliedly so held. Judge Robb and Chief Judge Kirsch, who had voted for the forfeiture holding in Williams, then apparently voted against rehearing in Campbell. (Rehearing was not sought in Mitchell.)

Who knows what else is buried in the nether world of the NFP?

Smylie: A Trip to the Nether World of the NFP.

In addition granting transfer in the two published decisions in Patrick and Aguilar, the Supreme Court has granted transfer in two unpublished decisions.

Lara Campbell v. State, Court of Appeals No. 03A01-0309-CR-350 (Ind. Ct. App. 11/5/04) (mem.), trans. granted and vacated by Supreme Court No. 03S01-0503-CR-114 (Ind. 3/18/05);

and

William Payne v. State, Court of Appeals No. 49A04-0311-CR-576 (Ind. Ct. App. 10/29/04), trans. granted and vacated by Supreme Court No. 49S04-0503-CR-113 (Ind. 3/24/05).

In Campbell, the online docket shows that in addition to granting transfer, the Supreme Court has summarily remanded the case to the Court of Appeals for reconsideration in light of Smylie. Although I have not seen the opinion yet, it is not hard to guess why transfer was granted and why the case was remanded to the Court of Appeals. In Mitchell v. State, Court of Appeals No. 49A05-0312-CR-625 (Ind. Ct. App. 11/22/04), trans. pending, a case decided about the same time as Campbell, the very same panel, Judge Baker writing for Chief Judge Kirsch and Judge Robb, concluded Mitchell's Blakely claim had been waived / forfeited by the failure to make an Apprendi objection at sentencing. (Since Mitchell was a waiver case, I am embarassed at having missed it when it was published on January 18th. My only excuse is that II was in the early stages of my post-Booker depression.)

So I'd say Campbell is going back for consideration of the Blakely merits, since Smylie said a trial court Apprendi objection is not required to preserve the issue. (Transfer is pending in Mitchell, and not having seen the Campbell opinion, I don't have a green idea why Mitchell would not have been sent back as well.)

In the "Go Figure" department, the Campbell / Mitchell panel also decided another Blakely case in a published decision on December 8th: WIlliams v. State, Court of Appeals No. 49G20-0310-FA-176400 (Ind. Ct. App. 12/8/04), trans. pending. Judge Robb wrote that opinion for Chief Judge Kirsch with Judge Baker concurring in the result of no Blakely relief. But in Williams, Judges Robb and Kirsch said that the failure raise an Apprendi objection at sentencing did not waive / forfeit the Blakely claim.

Now, I haven't seen the Campbell opinion, so I'll stick to Mitchell, decided just over two weeks before Williams. Recall that Mitchell was an unpublished decision when it first came out on November 22nd and was still unpublished when WIlliams came out on December 8th. So one of two things seems to be the case: Judge Robb and Chief Judge Kirsch changed their minds about waiver / forfeiture between November 22nd and December 8th; or both think it's just fine to declare the law to be one thing in a published opinion and another in an unpublished one.

I am all for judges changing their mind. And maybe that's what happened. Maybe. But then why not grant rehearing sua sponte in Mitchell to correct the case in light of their new understanding? Because Mitchell's 93-year sentence didn't matter and Mitchell was unpublished? Maybe, in light of Mitchell's "horrible criminal history of violent activity," Blakely may have made no difference, and so there was no compelling reason to do it over. Maybe.

The rather revolting surprise, of course, is that Mitchell did end up being published in January. So now there are two published opinions in which Judge Robb and Chief Judge Kirsch cannot even agree with themselves about waiver / forfeiture of Blakely issues. I guess it's the Lee Hayes approach to judging: "The older I get, the more interesting my mind becomes. I don't always agree with it, but it's more interesting."

Payne, the other unpublished decision in which the Supreme Court has granted transfer is interesting for its disposition: the Supreme Court summarily remanded to the trial court for resentencing with the following interesting orde to be found on the online docket:

After reviewing the parties' arguments, we believe it is unlikely appellant's enhanced sentences could be sustained in light of our recent decision interpreting and applying Blakely. Accordingly, we grant the appellant's transfer petition and remand this case to the trial court with instructions to reduce appellant's sentences to the presumptive sentences for each count, each to run consecutively in a sequence to be determined by the trial court. Because the trial court sentenced the appellant beyond the presumptive sentences for each count and ordered the sentences served consecutively, there is no reason for the trial court to conduct a new sentencing hearing.

I understand what the court is trying to do by this order, but it suffers from the same formal "irregularity" that Smylie did when it affirmed consecutive sentences it had just vacated, at least to the extent a new sentencing hearing is not required.

The order also creates the necessity of a new appeal of the consecutive sentences under Blakely--at least to the extent that Payne might want to pursue post-conviction or habeas relief. The Supreme Court has the constitutional power to review and revise sentences without sending the case back to the trial court for resentencing. In Merlington and Francis, the court revised sentences and sent the cases back for the trial court to perform merely ministerial duties of entering the orders to reflect the Supreme Court's revisions. The court asks the trial court to do a little more than that here.

But "Hurray," I say generally, to the idea of summary remands on transfer. I have thought for a long time that it ought to happen often. The Supreme Court could take care of a lot more error correction--and there are plenty to be corrected--without having to gin up an opinion every time. Less work and less damage all the way around.

I hope to have my hands on the opinions in Campbell and Payne within a few days. If there's something interesting in them, I'll post.

Smylie's First Bite: Transfer from two published decisions.

I mentioned in yesterday's post that the Indiana Supreme Court has granted transfer in four cases. Two of them are from published opinions of the Court of Appeals and two from memorandum decisions. I'll write a little about the published decisions here and the unpublished ones sometime this evening.

So, the published decisions in which transfer has been granted are.

Patrick v. State, Court of Appeals No. 71A03-0407-CR-312 (Ind. Ct. App. 12/23/04), trans. granted and vacated by Supreme Court No. 71S03-0503-CR-115 (Ind. 3/17/05) (for St. Patrick's Day, apparently). (My original post about Patrick is here.)

And:

Aguilar v. State, Court of Appeals No. 49A05-0307-CR-370 (Ind. Ct. App. 1/18/05) (op. on reh'g), trans. granted and vacated by Supreme Court No. 49S05-0503-CR-125 (Ind. 3/24/05). (My original post about Aguilar is here.)

In both Patrick and Aguilar, it was the State's petition to transfer that was granted. The orders granting transfer say only that transfer was granted.

Patrick is an intricate case that provides any number of reasons for which the Supreme Court might have granted transfer. In light of Smylie, the sore thumb sticking out is the footnote in which the Court of Appeals remands to the trial court for resentencing, rejecting the State's request that the case be remanded for a jury trial on the aggravating circumstances. Smylie, of course, said that sentencing juries are just fine, although without saying why.

Another interesting possibility that I will have to think about some more is that the Supreme Court is going to disagree with the Court of Appeals that the sky, i.e., the maximum sentence, is not the limit once a single "valid" aggravating circumstances is in play. (From the Court of Appeals' opinion: "In other words, 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 third interesting possibility is that in addition to the jury remand, which the Supreme Court is going to have to address, the court is going to also say something about the following bollocks the Court of Appeals makes out of Chapman harmless error analysis after having concluded that there was Blakely error:

In Holden v. State, 815 N.E.2d 1049, 1060 (Ind. Ct. App. 2004), this court applied a harmless error analysis to determine whether to reverse an enhanced sentence which was supported, in part, by aggravating factors that were improper under Blakely. In that case, we concluded that based on all of the valid aggravating factors, “there is no reasonable possibility that the complained of aggravators contributed to the sentence.” Id. (citing as comparison Chapman v. California, 386 U.S. 18, 23 (1967) (federal constitutional errors are harmless when there is no reasonable possibility that the evidence complained of might have contributed to the verdict)). Accordingly, we apply a harmless error analysis here. Indiana Appellate Rule 66(A) provides that “[n]o error or defect . . . in anything done . . . by the trial court . . . is ground for . . . reversal on appeal where its probable impact . . . is sufficiently minor so as not to affect the substantial rights of the parties.” In the sentencing context, “[i]f one or more aggravating circumstances cited by the trial court are invalid, the court on appeal must decide whether the remaining circumstance or circumstances are sufficient to support the sentence imposed.” Merlington v. State, 814 N.E.2d 269, 273 (Ind. 2004).

Merlington, which revised a sentence under state law and in a manner calculated to avoid Blakely, (see my prior posts here and here), and Appellate Rule 66(A) have nothing to do with constitutional harmless error analysis. The Chapman rule cited from Holden is correct. One can only wonder why this panel didn't just stop there.

There were at least two aggravating circumstances in Patrick that did not implicate Blakely: Patrick's ("insignificant") criminal history and the age of his murder victim, to which Patrick stipulated at his plea hearing. The Court of Appeals created a third "valid" aggravating circumstance out of the expansive reading the court has almost uniformly given to the prior conviction exception: Patrick was on probation at the time of the murder, in this case. (I have never been sure why, exactly, it is worse to commit a crime while on probation or parole than after having fully served a sentence. Simply because the crime is not only a crime, but also the violation of a court order? It seems to me at least as bad to commit a crime after having fully served a prior sentence, because it is more demonstrative of lessons not learned given a greater opportunity to learn them.)

In sentencing Patrick to 93 years, imposing both maximum and consecutive sentences, the trial court relied primarily on two aggravators subject to Blakely: 1) the nature and circumstances of the crime; and 2) the liklihood that Patrick would reoffend. (Isn't the latter "merely derivative," as the Court of Appeals would say, of criminal history?) I suppose it's possible, since it granted transfer probably on the jury issue, that the court will, while it's at it, treat the balancing or interplay of the Blakely and non-Blakely aggravating circumstances a little differently from the Court of Appeals.

I don't think the Supreme Court granted transfer in Patrick to enforce the forfeiture rule it created in Smylie. Patrick filed his opening brief in the Court of Appeals on August 30, 2004; the docket doesn't show any requests by either side for supplemental briefing; and the only issue Patrick raised, according to the Court of Appeals' opinion, was Blakely.

Aguilar is another matter. The only ground for transfer that I see is enforcement of the Smylie forfeiture rule that if you did not challenge your sentence in your "direct appeal," you do not get to raise Blakely. Aguilar as we know it was an opinion on rehearing. As recited in Judge Baker's dissent, the court affirmed Aguilar's conviction on July 9, 2004, shortly after Blakely was decided. So it looks like Aguilar did not challenge his sentence until his request for rehearing--which the State, by the way and somewhat surpisingly, did not oppose.

That is, I expect the Supreme Court, in its liberality, is going to define "direct appeal" down to an appellant's opening brief in the Court of Appeals. (One may not raise new issues in a reply brief.) Actually, Smylie almost says as much on its face:

Nevertheless, it does not ask too much that a criminal defendant have contested his or her sentence on appeal, even if the Blakely element of that contest is added later, as it has been by Smylie. Thus, we regard defendants such as Smylie who sought sentence relief from the Court of Appeals based on arbitrariness or unreasonableness (Appellant’s Br. at 3), and who added a Blakely claim by amendment or on petition to transfer as having adequately presented the issue of the constitutionality of their sentence under Blakely.

(I am still trying to figure out what this, from the following paragraph means: "Thus, those defendants who have not raised objections to their sentences should be deemed to have at least forfeited, and likely waived, the issue for review.")

Aguilar received the maximum sentence for Murder: 65 years. This case would be a good candidate for the plane to Habeas Land to see how the federal courts are going to react to Smylie's forfeiture rule.

So much of the wrangling will be moot if, in fact, the General Assembly Booker-izes Indiana's sentencing statutes. All the hubbub since last June 24th will have been a not much more than a fascinating prelude, with some benefits for a few, to the reconstruction, from scratch, of appellate review of now "advisory" sentences.

Why deal with the Sixth Amendment, and the Fourteenth, for that matter, when they can be made irrelevant by a change here or there?

Harris: The Court of Appeals applies Smylie.

There is a great deal going on in Indiana's patch of Blakely World. Or should I just call it Blakeliana on the model of calling the borderland with Kentucky "Kentuckiana"? (Probably the better choice, from a Hoosier perspective, than the alternative: "Indiyucky.")

The Transfer Machine has begun to roll with four grants by the Indiana Supreme Court. And, as reported by Marcia Oddi in this post at the Indiana Law Blog, there has been an amendment to Senate Bill 96, the General Assembly's attempt to deal with Blakely, that would appear to Booker-ize Indiana's sentencing statutes. Before the amendment, Indiana was headed toward the Kansas solution to Apprendi.

For now, I just want to note that the Court of Appeals issued its first post-Smylie Blakely reversal today in Harris v. State, Court of Appeals No. 02A03-0310-CR-414 (Ind. Ct. App. March 28, 2005). The only thing of much interest in this opinion is that Harris's opening brief was filed before Blakely had been decided. Harris did challenge his sentence in his opening brief, though not under Blakely, obviously. So the Court of Appeals applied Smylie's odd forfeiture rule and permitted Harris to raise Blakely in his reply brief.

I think the Smylie forfeiture rule as applied by the state appellate courts may well amount to an independent equal protection violation by those courts. And it may also be the royal road to de novo habeas review for those who are shut out. Both are complicated problems.

Finally, the Court of Appeals has a very strange way of putting things sometimes. This from Harris: "Finally, based upon Smylie, we conclude that Blakely does apply to Indiana’s sentencing scheme . . ." As if they'd made some sort of indepedent decision and were free to conclude otherwise.

Litchfield: Trash and reasonable suspicion

Justice Boehm has written a pretty interesting opinion for a unanimous court in the ongoing trouble with searches of trash under Article 1, Section 11 of the Indiana Constitution: Litchfield v. State, Supreme Court No. 50S03-0408-CR-382 (Ind. March 24, 2005). The result is a little surprising: no searches of trash, even if it has been put out for collection, unless the police have Terry-type reasonable suspicion of illegal activity and the suspicion is such that evidence might reasonably be found in the trash searched.

At the same time, the fact that trash has not been put out where the public would have access does not protect it. And my only real immediate objection to the opinion on its face arises from the following snippet:

If the trash is located in the place where it is normally picked up, the trash collection agency, whether public or private, is invited onto the property to the extent necessary to gather and empty the trash. Police officers can perform the same acts with no greater intrusion.

It seems to me absolutely a greater intrusion into privacy to have the uninvited enter private property, even if it is to do what someone else has been invited to do. If I read the opinion correctly, as long as they have reasonable suspicion to justify a trash search, the police can pretty much go where they will, subject, of course, to the Fourth Amendment.

It is quite a complex opinion needs some study, especially because of the interaction, I think it creates between the Fourth Amendment and Article 1, Section 11.

Litchfield also makes quite interesting reading together with a split decision of the Court of Appeals today about a police officer walking up to a basement window, trying to discover the source of an ether odor: Holder v. State, Court of Appeals No.87D02-0306-FC-107 (Ind. Ct. App. March 24, 2005).

Snippet: On corporal punishment in the courtroom.

"It must be clear that the determination as to whether a judge shall spank his prosecuting attorney must be left to the discretion of the judge."

Lake Co. Prop. Own. v. Holovachka, Pros. Atty., 233 Ind. 509, 511, 120 N. E.2d 263, 264 (1954); accord State ex rel. Latham v. Spencer Cir. Ct, 244 Ind. 552, 569, 194 N.E.2d 606, 614 (1963).

Hedger v. State: Blakely--Heard of it?

Hedger v. State, Court of Appeals No. 66A03-0410-CR-448 (Ind. Ct. App. March 23, 2005) came down today. It's an odd sort of sentencing case in light of all the Blakely cases from last fall. It would appear that no Blakely issue was raised. Because the Court of Appeals does not specify the criminal history involved, it is very hard to say what the Blakely angle might have been. Here's the background from the opinion:

On March 27, 2003, Hedger stabbed his three-year-old son’s dog and cut its throat, resulting in the dog’s death.

. . . .

At the sentencing hearing, the trial court found as aggravating factors that Hedger had a prior criminal history, there were two outstanding warrants for Hedger’s arrest, there was a great risk Hedger would commit another crime, Hedger mutilated his three-year-old son’s pet and killed the dog in front of his son, and he fled from the jurisdiction. The trial court found no mitigating circumstances and sentenced Hedger to three years in the Indiana Department of Correction.

We also don't know what was in the allocution. The warrants and the flight as aggravating circumstances would appear to be subject to Blakely. The circumstances under which the dog was killed would also be subject to Blakely, if those circumstances were not admitted in the allocution.

The Court of Appeals affirms the sentence under the state law challenge.

The notice of appeal in this case was filed on August 31, 2004, so the sentencing itself had to have taken place after Blakely. If there is a challenge to made to the sentence, could it be made now, for the first time in a petition to transfer the case to the Indiana Supreme Court? Both Heath and Smylie did not raise Blakely until their transfer petitions.

And if there is a viable Blakely challenge, what will the appellate courts do with a post-conviction ineffective assistance claim? I take Smylie's forfeiture rule to apply to those who were sentenced before Blakely and so could not have raised a Blakely objection. I don't think it obviously applies to cases in which Blakely could have been raised both at the sentencing and in the Court of Appeals.

A Word from the Ghost: It only took a week.

I sent this post from last Monday about the New Jersey oral arguments by email to the blog. As anyone getting this by an RSS feed knows, it arrived on the blog today. I don't think I'll be doing that again soon.

I did have one response to my reformatting of a few days ago: a request for some left margin. So now there's some left margin. Enough of it? Let me know.

No one wants to know some of the formatting disasters I have narrowly escaped inflicting on the blog permanently.

-The Ghost.

Blakely GVR's: Only one so far.

Doug Berman at Sentencing Law & Policy has this post today about Booker GVR's--cases in which the U.S. Supreme Court has granted certiorari, vacated, and remanded in light of Booker. More than 500 of them. (It would be interesting to see which, if any, of the interesting federal waiver / forfeiture decisions are among the lot, especially from the Fifth and Eleventh Circuits. That might provide some real information about the Supreme Court's views on the forfeiture of Booker / Blakely claims, possibly with implications for state forfeiture analysis. The vote lines might be interesting too.)

The Booker GVR's made me wonder about Blakely GVR's from state decisions. The first, of course, was Dilts v. Oregon, issued just a few days after Blakely, in which, on remand, the Oregon Supreme Court produced what I think is the best state court opinion on Blakely to date.

A Lexis search has produced only Dilts as a GVR from Blakely. Of course Dilts, like Blakely, raised an Apprendi objection in the trial court. There were not many cases pre-Blakely involving Apprendi objections, is my guess. And now, to get a Blakely GVR probably will take a case erroneously refusing to apply Blakely to a state sentencing scheme. And that kind of case will take a while to get out of the state courts.

Because Blakely did not address consecutive sentences, I'll bet that a state consecutive sentencing decision will get plenary consideration and not just GVR treatment. Smylie would be a good candidate among, I am sure, many. (When will the California Supreme Court speak in Towne and Black?)

Milligan: Transfer not sought.

Milligan v. State, Court of Appeals No. 14A05-0403-CR-166 (Ind. Ct. App. December 14, 2004), about which I also did not post at the time--how slovenly--is a straightforward application of Blakely that reverses the sentence imposed. The odd thing about this case, as with Krebs, is that the State did not seek transfer on either forfeiture or Blakely's applicability. It is odd because of the number of other Blakely cases in which the State has sought transfer. Why not in these?

The Court of Appeals' opinion was certified on January 31st.

Payton: Transfer denied in a non-Blakely Blakely case.

Payton v. State, Court of Appeals No. 02A03-0403-CR-139 (Ind. Ct. App. November 30, 2004) appears in the sidebar list of Indiana Blakely cases. I did not, apparently, post anything about the case when it came out; and that may be because the case does not explicitly apply Blakely, although it oddly mentions Blakely for the proposition that criminal history as a single aggravating circumstance can support an enhanced sentence. I suppose that was the court's back-handed way of saying Blakely didn't affect the case.

The criminal history mentioned by the Court of Appeals looks like it is pretty much down the middle of the prior conviction exception: "Payton has a criminal history consisting of two misdemeanor and four felony offenses, including a 1983 murder conviction, for which he has served time."

Under state law, see Ind. Appellate Rule 7(B), the Court of Appeals reduced Payton's sentence for impersonating an officer, several counts of sexual misconduct with a minor, and an habitual offender finding from 39 to 25 1/2 years.

The Supreme Court denied transfer in Payton on March 3rd.

So the only transfer action I'm finding is on cases involving criminal history, however one reads the prior conviction exception.

The roundup continues.

Lampitok: Transfer denied on 3/10

In this post a couple of days ago, I mentioned that on March 10th, the Supreme Court had denied transfer in Berry. In checking up on the Blakely-related cases in which transfer has been pending, and I have discovered that the court denied the cross-petitions to transfer in Lampitok--also on March 10th. (I think I somehow skipped a page when reading the transfer list for March 11th put up by Marcia Oddi at the Indiana Law Blog. Lampitok is there, twice, actually, on page three.)

[Oops]: Transfer was denied in Berry on 3/17, not 3/10.

My original post on Lampitok (11/16/04) is here. Lampitok follows Carson in a footnote saying that Blakely, even if applicable to Indiana sentencing--which we now know that it is--would not have affected Lampitok's sentence because of his (unspecified) criminal history "which began in 1978."

Because Lampitok's criminal history is not detailed at all in the Court of Appeals' opinion, it is only possible to conclude that the denial of transfer there is not inconsistent with the approval of a broad reading of the prior conviction exception that the denial of transfer in Berry more clearly implies.

Gotta go check some others.

Morrison v. Sadler: A hot case has gone cold.

Over in the sidebar I have one case in the "Hot Cases" category: Morrison v. Sadler, the Court of Appeals decision from January upholding Indiana's Defense of Marriage Act, Indiana Code § 31-11-1-1, against an equal privileges challenge under Article 1, § 23, of the Indiana Constitution. Ken Faulk and a law school classmate of mine, Jackie Bowie-Seuss, both of the Indiana Civil Liberties Union, litigated the case for the plaintiffs.

While fiddling around with the sidebar (see the previous post), it occurred to me to go look at the docket to see what was happening with this "hot case." Nothing, it turns out. Transfer to the Supreme Court was not sought; the Court of Appeals opinion was certified on March 8th; and that's pretty much the end of that case.

I really do wonder why transfer was not sought. Perhaps the plaintiffs did not want to pursue it. It's hard to imagine that the ICLU would litigate the issue through the Court of Appeals and not take a shot at the Supreme Court. Or is there something about the case the rest of us don't know that makes it a bad case to take to the Supreme Court?

A word from the ghost in the machine . . .

Anyone who is not reading this as an RSS feed will have noticed some not so small changes in appearance. I finally got tired of all the wasted space and corseted posts. So I have spent a little time figuring out how to make the posts more readable and the sidebar more useable. I'm not sure yet whether I have succeeded. My meddling with the code has been strictly amateur, and I probably should get professional help.

I am not entirely happy with the result at the moment. I think I'd expect to find something looking like the title above the entrance to a funeral home, or worse, a mausoleum. And I can't quite figure out why the borders under post titles don't appear to maintain a uniform distance above the posts themselves.

The central changes for reading have been, of course, going wide-body and adding a grayish background. I think Doug Berman's posts on Sentencing Law & Policy are, for me, the ideal of readability; and he uses a white background for his posts. At the same time, his posts are generally short summaries; mine tend to be longer-winded disquisitions. I personally don't like dwelling long on the glare of white backgrounds white backgounds. That's why I've gone gray.

I invite all to email me directly with reactions to the new look, good or bad, or with suggestions for improving the blog's readability and usefulness.

-The Ghost.

PS: According to this post on How to Save the World, INCourts finds itself running up and down between the 80,000 blogs that have 10 to 50 visits a day and the 18,000 "C List" blogs that have between 50 and 300 visits a day. (The average as of a minute ago was 49. The average a week ago was 55.) I guess we'll see if my untutored web-meddling pushes INCourts down into the bucket of the 5,000,000 blogs with less than 10 visits a day.

Berry: The first post-Smylie transfer decision

The first post-Smylie transfer decision that I know of has come from the Indiana Supreme Court in Berry v. State, decided by the Court of Appeals back in December. (Thanks again to Marcia Oddi at the Indiana Law Blog for putting the weekly transfer lists up. Besides providing great information, it saves me a lot of mousing around in the court's incredibly cumbersome online docket).

Transfer was denied. Berry came down from the Court of Appeals on December 14th during my holiday Warsaw idyll, and I didn't write anything about it specifically, although I mentioned it, at least, in this post. In essence, the denial of the transfer in Berry appears to approve quite a broad reading of the prior conviction exception.

For reasons I hope to get to in a followup post this weekend about Jaramillo (earlier post here) and Serrano, a case disapproved in a Jaramillo footnote, one has to take the "appears to approve" quite seriously--and not just because Appellate Rule 58(B) says that a denial of transfer means nothing except the end of the litigation in the Supreme Court.

Anyway, here, sliced up a bit, is the broad language about the prior conviction exception--now the "criminal history exception" in Indiana?--that the denial of transfer in Berry apparently approves:

Here, it is apparent from the face of the record that the trial court identified three aggravating circumstances: (1) the risk that Berry would commit another crime; (2) the nature and circumstances of the offense; and (3) Berry’s criminal record. The trial court first discussed the “risk the defendant will commit another crime . . . and [found] that it is great.” Immediately thereafter, the court mentioned Berry’s “constant involvement in the criminal justice system” and the fact that he was on parole the day Lee was shot. Those statements support the conclusion that there was a substantial risk that Berry would commit another crime. The court next discussed the nature and circumstances of the crime when it emphasized the biological relationship between Lee and Berry, the “silly” cause of the dispute, and the number of people in the neighborhood who were outside at the time of the shooting and whose lives were thereby endangered. Finally, the trial court observed that Berry’s criminal history is “significant” and “escalating.”

. . . .

Here, the trial court did not detail Berry’s criminal history in its sentencing statement, but the pre-sentence report reveals that it is substantial. Berry, who is only twenty-eight years old, has already accumulated a criminal record consisting of convictions for dealing in cocaine, possession of cocaine, and possession of alcohol by a minor and delinquency adjudications for possession of cocaine, illegal possession of a handgun, auto theft, criminal trespass, and truancy. Moreover, the pre-sentence report was discussed extensively at the sentencing hearing, and Berry’s counsel conceded that the trial court could properly enhance the sentence given Berry’s criminal history. Indeed, at the hearing, Berry’s counsel stated, “We know that [Berry’s] criminal history is there; that the Court may aggravate the sentence; and that a presumptive on this is ten years.” Berry cannot now claim that the trial court erred when it relied on his criminal history.

. . . .

As we discussed in Part A of this section, the trial court enhanced Berry’s sentence based on three aggravators, namely, the risk that he would commit another crime, the nature and circumstances of the offense, and his criminal history. Clearly, Berry’s prior criminal history does not trigger a Blakely analysis. The second aggravating circumstance, the risk that Berry would commit another crime, also falls outside the scope of Blakely. The trial court based its assessment of the likelihood that he would commit another crime on his “constant involvement in the criminal justice system,” an observation derived from Berry’s criminal history, and Berry’s admission that he was on probation at the time of the offense. Accordingly, the risk that Berry would commit another crime is not subject to the Blakely analysis.

(Citations omitted) (footnotes omitted) (emphasis omitted).

Capitalism Not Criminal: The system worked?

KempLog has this great story about Judge David Hamilton of the Southern District pulling the plug on a prosecution that the FBI investigated, the US Attorney prosecuted, and in which the defense lawyers were ready to enter pleas for their clients. As Mr. Kemp says, "Nice save, Judge." How much money was wasted on all sides?

I doubt either defendant would say, relieved as they must be, that the system worked.

AG Dispute with Planned Parenthood Makes NYT

There is a story in today's New York Times about Steve Carter's attempt to get the Planned Parenthood records of 80 plus girls who were served by PP when they were younger than 14. Apparently none of the cases involves an abortion. It's all deep in the forest of admin law, a wood I have no desire to visit. But the following setup in the piece did make me wonder about something:

Staci Schneider, a spokeswoman for the attorney general, Stephen Carter, said that his office this month requested the records of some patients, younger than 14 years of age, as part of an investigation into accusations that some clinics had failed to report cases of sexually molesting children to the proper authorities. Under state law, anyone under 14 who is sexually active is considered a victim of sexual abuse.

"This office is obligated by state and federal statutes to investigate accusations against Medicaid providers for fraud, abuse and neglect," Ms. Schneider said Wednesday, "and this falls within that broad authority."

Actually, it makes me wonder about two things. First, what does the investigation of Medicaid fraud have to do with whether PP has been making required reports about possible sexual abuse? Second, if this sort of investigation is an obligation of the AG's office, why are they just getting around to it now, in the opening months of Steve Carter's second term? Or a third question: is the AG obligated to investigate, or is it just part of his "broad authority"? And if he's not obligated to investigate, why say he is and why do it? Seems like an awful nest of hornets to rile. I'm sure there is a tangle of federal and state statutes, not to mention adminstrative rules, that everyone is going to be able to argue about interminably.

Far from the Blakely Trail, where the footing is surer and to which I will now mosy on back.

Limrick on Smylie: Some Remaining Issues

Below, I have pulled out of Mike Limrick's article his (terrific) comments about some of the issues remaining after Smylie. His comments about the aggravators-as-elements problem are especially important, it seems to me, because it is a problem that has largely gone unaddressed by courts nationwide.

Often overlooked in the litigation over Blakely’s meaning is that its rule encompasses not only the right to a jury trial, specifically, but also the right to notice and due process, generally. In Apprendi v. New Jersey, the United States Supreme Court stated that its holding in Jones v. United States that “[u]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt” applied in its entirety in cases involving a state statute under the Fourteenth Amendment. Nothing in Blakely affected the portion of the rule discussing the charging instrument. Therefore, although indictments in state prosecutions are not required by the Constitution, proper notice of the entire charge--including, now, Indiana’s aggravating factors--is.

This is important because the Court in Smylie simply vacated the sentence, not the underlying conviction. That conviction was based on Smylie’s charging information, which, presumably, did not provide notice of the aggravating factors the trial court later found. So, although the Court in Smylie remanded for “resentencing,” what it essentially allowed the State to do is amend the charging information and conduct additional trial proceedings to secure a conviction on all the elements necessary to the enhanced sentence. This course of action may, itself, be an unconstitutional remedy to the constitutional problem.

Indiana law permits amendments to the charging instrument, by motion of the prosecutor, at any time as long as they do not “prejudice the substantial rights of the defendant.” It is difficult to imagine a scenario in which a defendant’s substantial rights would not be prejudiced by the filing of an amendment that adds an element to the charge after conviction. The Indiana Supreme Court’s allowing such an amendment, at the very least, raises serious questions under the United States and Indiana constitutions. The Court, however, did not address those issues in Smylie.

Just as unsettled, from a practical standpoint, is how trial and appellate courts are now to handle their cases, either in the first instance or on remand. In addition to the charge-amendment question, courts must also determine, inter alia, what aggravators the State may properly charge (i.e., whether they must be explicitly listed by statute), when they must be charged, how to handle evidentiary issues in the sentencing phase, whether a “history of criminal activity” must be charged and proven (or whether that statutory aggravator is the same as the “fact of a prior conviction” under Apprendi), and under what circumstances a remand for resentencing (under any regime) is required by Blakely. The Court in Smylie offered no guidance on these issues due, at least in part, to the fact that some were not raised, but a determination of all of them is necessary for courts to function properly post-Smylie.

(Footnotes omitted).

Smylie: Forthcoming article by Mike Limrick

Mike Limrick has been kind enough to give me permission to post his forthcoming article on Smylie: Snapshot Of Smylie: An Initial Reaction To The Indiana Supreme Court’s Interpretation And Application Of Blakely v. Washington. Here's the link to the PDF document.

I'm now going to go read it meself.

Countdown to an Execution: A&E at 8 p.m. EST

Countdown to an Execution is on A&E's American Justice tonight at 8:00 p.m. EST. It is the story of Darnell Williams' case and Governor Kernan's commutation of his death sentence last summer. Marcia Oddi at the Indiana Law Blog has this setup piece about the broadcast, which was screened at the IU law school in Indianapolis earlier this month.

Having survived and recovered (mostly) from yesterday's flu attack, I'm going to be at the IU-Vanderbilt NIT game, but the tape machine will be running. (Thank you, Supreme Court, for giving us videotape for time shifting.)

NJ Arguments: Some notes

The State began its argument (as the appellant) in Natale with a very interesting distinction between New Jersey and Indiana sentencing law, although the DAG did not mention that she was distinguishing Indiana until much, much later. In Indiana, if a judge imposes a presumptive sentence, he or she need not give any reasons. In New Jersey, a judge must give reasons for any sentence, including the presumptive. I thought this gave a great deal more plausibility, at first blush, at least, to the State's claim that Blakely does not apply to New Jersey's sentencing scheme. (Recall that Chief Justice Shepard characterized the State's defense of Indiana's sentencing scheme in Smylie as "plausible" That defense did not get a single vote, even from Justice Dickson, whose dissent was directed entirely at the remedy and not Blakely's applicability.)

The State went on, though, to suggest the test to apply to see if Blakely is applicable is whether the finding of an aggravating circumstance requires a greater sentence. The Chief Justice properly, I think, hopped on this by saying that a judge may not go above the presumptive without finding aggravating circumstances--which Justice Rivera-Soto characterized as the "quintessential elephant in the roorm."

Justice Albin, I think it was, got right to what I refer to as the Dilts test. He asked the State if there had been an enhanced sentence in a second degree felony case that had been affirmed without the finding of some aggravating circumstance. The State could not come up with such a case.

A bit later, Justice Albin also used Booker to ask the State how New Jersey's presumptive sentence is different from the federal base offense level. At least in my notes, the State moved hastily on to its preferred remedy, which was frankly, plainly, and openly, to Booker-ize New Jersey's statutes.

Justice Albin said that the court had to decide how the legislature would want to fix this and then simply proposed the judicial creation of a system where judges would begin at the maximum for each degree of crime, 10 years for a second degree felony, and then work down.

Although Justice Zazzali mentioned that uniformity had probably been more important to the legislature than judicial discretion in adopting New Jersey's current sentencing scheme, no judge seemed to push imposing a jury requirement.

Natale's lawyer pushed back a bit on the effect of Booker-izing the statutes, adopting the position of Scalia's dissent in Booker that "reasonableness," if it is just going to be a proxy for the presumptive without aggravating circumstances, leaves the situation unchanged.

He also made the point that he did not think Natale could be sent before a sentencing jury, because Blakely aggravators are the functional equivalent of elements.

On the question of the jury remedy, Justice Albin asked when would a bifurcated trial be unnecessary. New Jersey has a sentencing factor, "the need to deter," that would probably have to be tried in every case, he suggested. I recalled Chief Justice Shepard's astute comment in the Smylie and Heath arguments that there's nothing in Blakely or Apprendi that requires bifurcated trials. This is the double-edged sword of the aggravators-as-elements argument; and I was a little surprised to see it pass as a foregone conclusion that bifurcated trials would be necessary.

Steve Sanders, who has been feeding Doug Berman and me with all the background and documents in theses cases, raised the third option, after Booker-ization and the invention of sentencing juries, namely limiting sentences to the presumptive until the legislature fixes things. He said that this option had not gotten much play in the lower appellate decision. The Chief Justice asked him if he was surprised, which question produced the only laughter of the morning.

I think Steve made the important point that what the court does now is merely an interim solution until the New Jersey Legislature gets busy. Justice Albin proposed again creating a system in which sentences begin at the top and judges then work down, balancing aggravating and mitigating circumstances. Steve conceded that, as a theoretical matter, sentences should end up in the same place as under the current system. I'm not sure that is so. If there are not aggravating circumstances and no mitigating circumstances, what would cause a judge to move down to the current presumptive sentence? Maybe I misunderstand the way New Jersey sentencing works.

In any event, whether it is to read "shall" as "may" or to start at the top of the sentencing ranges, it was clear to me that after Booker, this court thinks it can pretty much do what it will to avoid the unconsitutional applications of its sentencing statutes, which are not unconstitutional on their face.

Abdullah raised the question of whether New Jersey's parole disqualification provisions are or are not like the mandatory minimums in Harris and McMillan. It also raised Blakely's applicability to consecutive sentences. No justice seemed to pursue the possibility, even.

The court did give Abdullah's lawyer a very hard time over the absence of a presumptive in the murder statute. It appears to be a unique sentencing provision, sharing the lack of a presumptive sentence with only the car-jacking statute. And one of the justices suggested that the Appellate Division had read a presumptive sentence into the car-jacking statute, because its absence there had been a scrivener's error. Not so, apparently, with the murder statute.

I thought it was just about the end of that particular matter when one of the justices suggested that the murder statute was just like the hypothetical 10-40 year burglary statute mentioned by Scalia in Blakely. Hard to disagree.

There was an extended argument in Abdullah about the statutory aggravating factor of "the extent and seriousness" of criminal history. If this is not the same as "the fact of a prior conviction," one justice asked, what would jury instructions on these issues look like? Good question. There was a pretty good answer too: we instruct juries on elements of crimes and on how to put people to death, so we ought to be able to come up with instructions to cover this. (Going back to Natale, it seemed to me that if a jury would have to consider "the need to deter" in almost every case as suggested by Justice Albin, an assessment of the extent and seriousness of criminal history would almost necessarily be part of that undertaking.)

In a way, Franklin was the most interesting case of the day for me. Whichever of several ways the court could go in it, it would make a great case to test the limits of the Blakely Five's formalism. Franklin was convicted of "passion provocation manslaughter." He shot a woman three times. There were five, I believe, firearms charges, and the jury acquitted Franklin for all five. Then there is the Graves Act, which adds years for the "use or possession" of a firearm while committing, among other things, passion provocation manslaughter.

At trial, Franklin testified and did not, apparently, recall if he had used a gun, but he guessed he had.

So Justice Albin hammered at the question of whether Blakley permits the use of trial testimony as an "admission." And the interesting question arose as to whether a trial admission should be considered as reliable as an admission during a plea colloquy. Someone made the fine point that Justice Souter in Shepard, specifically speaks of the danger of having to get into trial transcripts.

A couple of other justices hammered at the Graves Act not requiring a mens rea, but just use of a gun--so any error has to be harmless, because everybod knows Franklin used a gun. This gets Blakely up close and personal to Shepard: what does it mean to know these things, and what ways does the Constitution permit us to know them. In both Abdullah and Franklin, actually, Shepard, though not precisely applicable, kept popping up on important issues.

So, what to do with the acquittals and the fact that nothing in the manslaughter verdict necessarily finds the use of a gun? The State tried to argue--and I think some members of the court were sympathetic to the argument--that the use of a gun was "implicit in the verdict." Well, only if read together with a bunch of other things. And then there are those pesky acquittals. So the "realists," as opposed to the "formalists" want to say Franklin used a gun without possessing it?

This could be a great case for the U.S. Supreme Court to teach us, at a minimum, about Blakely admissions and what may be said to be "implicit" in a verdict. It's Shepard dressed up in its Blakely best.

Doug Berman found the archive site here. (I guess I did not look hard enough.) Unlike the arguments on the Indiana site, which reside in the ether indefinitely, it appears the New Jersey arguments are taken down after about a month.

NJ Arguments: Fascinating

The New Jersey arguments raised Blakely and Shepard in a number of different contexts, and I found the arguments truly fascinating. I have many pages of notes that I will try to reproduce here later this afternoon. (I wonder if anyone knows if the video is archived anywhere so that those who missed the arguments live can watch?)

Immediately, Smylie got several mentions fairly deep into the arguments. I think the State did a pretty good job distinguishing Indiana's statutes, at least, if not the sentencing scheme taken as it actually operates, from New Jersey's.

The State was openly arguing that the court Booker-ize New Jersey's sentencing statutes by reading "shall" to mean "may," which suggestion by Justice Dickson at the Smylie and Heath arguments pretty well shocked me. But after the remedial opinion in Booker, why not?

Abdullah educated me that New Jersey's sentence for murder, unlike all other sentencing provisions except for car jacking, is a pure range with no presumptive: 30 years to life. My guess is that will escape Blakely.

The court's questions from all sides to all parties were really quite wonderful and a great deal more probing than the questions in Heath and Smylie. (All comparisons are invidious, and I do not mean that as a criticism of the Indiana Supreme Court. After all, the New Jersey Supreme Court had three quite different cases before it (chapeau for taking three quite different cases at once) and had the benefit of being able to watch the Heath and Smylie arguments, not to mention the benefit of the Smylie opinion, before confronting today's cases.

On the basic questions, it looks like the court was pretty hostile to the State's claim that Blakely doesn't apply to New Jersey's general sentencing scheme. Most of the time on remedy was spent on Booker-izing the statutes. The court seemed quite concerned about how messy jury sentencing would be and whether the legislature would have intended the messiness.

Almost no time was spent on waiver / forfeiture.

More anon.

The Sunday Pickle

The Rope's End

Unraveling a rope
You begin at an end.
Taking the finished work
You pick it to its bits.

Straightening out the crossed,
Deriving many from one,
Moving forward in time
And backward in idea,

Reaching to finer elements
And always thinner filaments,
From rope to cord to thread
And so on down to splinters

No longer serpentine
That break instead of coil
And that will blow away
Before a little breath,

Having attained the first
Condition, being dust,
No longer resembling rope
Or cord or thread or hair,

And following no line:
Incapable of knot or wave
Or tying things together
Or making anything secure

Unable to bind or whip,
Or hang till dead. All this
in the last analysis
is crazy man's work,

Admitted, who can leave
Nothing continuous
Since Adam's fall
Unraveled all.

-Howard Nemerov

Last Week's Transfers: Jaramillo, Monge, and 1998

Thanks to Marcia Oddi’s posting the transfer list each week on the Indiana Law Blog, we know that the Supreme Court granted transfer in three cases this week, all of them involving published opinions of the Court of Appeals. Two were civil, and the one criminal appears to be something of an odd duck: State v. Jaramillo, Court of Appeals No. 76A03-0306-CR-209 (Ind. Ct. App. 2/11/04), trans. granted and summarily aff’d by Supreme Court No. 76S03-0503-CR-93 (Ind. 3/11/05). I am only going to discuss Jaramillo tonight.

The two civil cases were Midtown Chiropractic v. Illinois Farmers Ins. Co., Court of Appeals No. 49A02-0312-CV-1047 (Ind. Ct. App. 7/30/04) and Depuy, Inc. v. Farmer, Court of Appeals No. 93A02-0404-EX-301 (Ind. Court App. 10/5/04). Here is the direct Real Player link to the oral argument in Midtown Chiropractic. There does not appear to have been an oral argument in Depuy, which is a Worker’s Comp. case in which the Court of Appeals reversed an award and in which, it would appear, the Supreme Court is going to reinstate the award.

Jaramillo is an odd duck at the moment not so much because the Supreme Court granted transfer and issued an opinion at the same time–it does that from time to time, and it used to operate that way all the time– but because the docket entry shows a seven-page opinion; and that opinion is nowhere to be found either on the web or on Lexis. Lexis doesn’t have it yet that transfer’s been granted, so the absence of the opinion there isn’t so surprising.

Jaramillo is also cert. meat and a most delectable cut, if the State Public Defender’s Office is willing to pursue it. It raises the question of Monge’s and, obliquely, Amendarez-Torres’s continued vitality.

The short of it is that Mr. Jaramillo was charged with and convicted for OWI as a C felony, enhanced to a B by virtue of two alleged prior convictions, one of them in 1998. (See Ind. Code § 9-30-5-5) He was also charged as and found to be an Habitual Substance Offender, again, in part, because of the alleged 1998 conviction. (See Ind. Code § 35-50-2-10).

The problem was that the State merely proved that Jaramillo had pled guilty to the alleged 1998 conviction and that the judge had taken the plea under advisement. The State did not prove that a judgment of conviction had ever been entered. For the time being, I will take the Court of Appeals’ word for it that there is Indiana Supreme Court precedent saying that that wasn’t enough. It makes sense that if the State has to prove a prior conviction, it has to prove a prior conviction and not just that there was a probable cause affidavit, a charging information, and an allocution.

So the Court of Appeals reverses the B-felony “enhancement” to the OWI conviction and the habitual substance offender finding. No problem.

Tthe question then arises whether the State gets another go at proving the 1998 conviction. The Court of Appeals says that everyone agrees about one thing: Monge is the critical case. I’m not so sure, and I’ll have to look at the structure of the California three-strikes law at issue in Monge.

But, despite a pat on the back for Jaramillo’s appellate lawyer for a good try, the Court of Appeals goes with Monge. The pat on the back is for arguing that Almendarez-Torres, Apprendi, and Ring effectively overruled Monge. What the Court of Appeals says to this is actually pretty interesting: “[A] synthesis of those decisions simply does not present a compelling enough case to permit this court to take upon itself a task that the Supreme Court has thus far refrained from undertaking, viz., announcing that Monge is a dead letter.”

Now, I thought I had learned something when the Seventh Circuit issued Booker last July: “We are mindful of the Supreme Court’s ukase that the lower federal courts are not to overrule a Supreme Court decision even if it seems manifestly inconsistent with a subsequent decision, unless the subsequent decision explicitly overruled the earlier one.” (Citation omitted.) I actually only learned half a something, because I only took away that lower courts can’t overrule U.S. precedent on their own. Of course, the “ukase,” Judge Posner says, is only directed at the lower federal courts. Could it be true that, perhaps under its supervisory power, the United States Supreme Court can prevent lower federal courts from overruling its cases, but that it has no such power over state courts? (Recall that in Roper, the Missouri Supreme Court would appear to have overruled Stanford v. Kentucky, 492 U. S. 361 (1989), if only for Missouri.)

So maybe the Indiana Court of Appeals could have overruled Monge, for Indiana at least, had it wanted to. If anyone has some insight into this, please post a comment.

With respect to the argument that Almendarez-Torres, Apprendi, and Ring had collectively overruled Monge, the Court of Appeals drops its Footnote 3, noting that “Almendarez-Torres was decided before Monge.” (Ironically for this case, perhaps, they were both decided in 1998). And it’s hard to disagree that Almendarez-Torres probably didn’t contribute to overruling a later case.

But now there’s the transfer order in the docket, which I find almost impossible to understand without seeing the opinion: “we grant transfer pursuant to Appellate Rule 58(a), summarily affirm the opinion of the court of appeals as to the issue discussed in footnote three, and remand this case to the trial court.” (Emphasis added.) What’s the issue in Footnote 3? Almendarez-Torres was decided before Monge.

There is a reason I have to go look at Monge and California’s three-strike law. The quotation from Monge used by the Court of Appeals in its opinion makes my generally trusting soul suspicious. Here’s what the Court of Appeals says:

Lest there be any doubt that the issue before the Court in Monge is the same one before us in the instant case, we reproduce the following from Monge:

Petitioner contends that the rationale for imposing a double jeopardy bar in Bullington … applies with equal force to California’s proceedings to determine the truth of a prior conviction allegation. Like the Missouri capital sentencing scheme at issue in Bullington, petitioner argues, the sentencing proceedings here have the “hallmarks of a trial on guilt or innocence” because the sentencer makes an objective finding as to whether the prosecution has proved a historical fact beyond a reasonable doubt. The determination whether a defendant in fact has qualifying prior convictions may be distinguished, petitioner maintains, from the normative decisions typical of traditional sentencing. In petitioner’s view, once a defendant has obtained a favorable finding on such an issue, the State should not be permitted to retry the allegation.

Monge v. California, 524 U.S. at 731 (internal quotes in original, but unattributed). As the foregoing reflects, the Monge decision is squarely on point with the matter under consideration here.

(Emphasis added).

But in Indiana, for the OWI and habitual substance offender “enhancements,” it is not “the sentencer” who makes the factual findings. It is the jury, and it does not make the findings during sentencing proceedings. For that reason alone, Almendarez-Torres does not apply, so I will have to have a look-see at Monge.

. . . A little later. One bell that went off for me with Jaramillo was my recollection that there is pretty well-established precedent that a reversal of a general habitual offender finding (Ind. Code § 35-50-2-8) for insufficient evidence bars a retrial of the issue. The last case to deal with the question it appears, although I am far from certain, is Parker v. State, 696 N.E.2d 737 (Ind. 1998). (1998 seems to have been a very important year for Mr. Jaramillo.) The Indiana Supreme court says this:

Defendant contends that the evidence is insufficient to support the finding that he is a habitual offender. If so, the State would be precluded from re-trying defendant as a habitual offender because "the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars reprosecution of a habitual offender charge where the State has failed to prove that status due to insufficient evidence." Poore v. State, 685 N.E.2d 36, 39 (Ind. 1997) (citing Bell, 622 N.E.2d at 456).n13

Parker, 696 N.E.2d at 743. And guess what footnote 13 says: “The United States Supreme Court's recent opinion in Monge v. California, 118 S. Ct. 2246 (U.S. 1998), implicates this principle. Given our conclusion [that the evidence was sufficient], we elect not to apply Monge here as the parties have not had the opportunity to brief its applicability.”

Well, the question really is whether Monge “implicates the principle” when it is not “the sentencer” doing the fact-finding during sentencing proceedings. If the Supreme Court opinion in Jaramillo applies Monge to this situation, it is a huge change in well-established Indiana law. I guess we’ll have to see the opinion.

There is also another question to be looked into: the 3-8 additional years for a finding that someone is an habitual substance offender might properly be characterized as a “sentencing enhancement” that gets you into the land of Monge. The jump from a C to a B felony for the OWI with two prior convictions simply isn’t structured the same way. The C and B felony versions are different crimes with different elements. The habitual substance offender statute adds years to the sentence for an “underlying” conviction; sentencing for C and B felonies proceed under two entirely different statutes.

I can’t wait to see the opinion.

Monday, 10:00 a.m.: Three Arguments in NJ.

On Monday at 10:00 a.m. EST, the New Jersey Supreme Court is hearing oral arguments in three Blakely-related cases: Natale, Abdullah, and Franklin, in that order, as I understand it. The arguments are to run to 12:15, so it looks like 45 minutes per argument, more or less. I don't know whether the court breaks between arguments.

Besides state supreme court Blakely arguments, the arguments should be interesting because of the similarities between Indiana's and New Jersey's sentencing regimes.

Tune in by Windows Media Player at this site just before 10 on Monday. I have hunted around briefly on the New Jersey judiciary's website, but I cannot find a place where the arguments are archived. It may exist, but I'm planning to listen live.

Smylie: Fiat is not just a kind of car

I wrote much of what follows originally as a somewhat intemperate comment to Doug Berman's first post about Smylie yesterday. Steve Sanders, who's involved in the Natale and Franklin cases that will be argued Monday before the New Jersey Supreme Court, and another lawyer, both had nice things to say about Smylie. As I mentioned in yesterday's post, I view Smylie much more dimly:

I wish I could share my colleagues' enthusiasm for Smylie. The applicability of Blakely to Indiana's determinate sentencing scheme was close to a foregone conclusion, even if I was nervous based on the pattern of transfer denials over the last months by the Indina Supreme Court. I may have been a little more nervous recently because of the post-Booker back-pedaling by a couple of judges on the Court of Appeals. But it is almost impossible to read Indiana's sentencing statutes in a way that would avoid Blakely. Not even a panel of the Court of Appeals has said that Blakely does not apply to Indiana sentencing.

The consecutive sentencing holding tosses over 23 years of precedent that says an aggravating circumstance is required to support consecutive sentences. It is simply not so that there has not been a"presumption concerning concurrent or consecutive sentence," as Smylie says. I really hope this is a subject of a cert. petition. At best, this particular holding should only be applied prospectively.

With respect to the "forfeiture" analysis, it makes no sense to shut out people who did not appeal their sentences. As made clear in the amicus brief in Booker submitted by the Public Defender for the Northern District of Texas, there is a serious issue regarding the knowing and intelligent waiver of the constitutional rights established by Apprendi and reiterated by Blakely. And the people who did not appeal their sentences no more knew about Blakely than the people who did. This is precisely the inequity described by Justice Blackmun in Griffith: "[T]he problem with not applying new rules to cases pending on direct review is the actual inequity that results when the Court chooses which of many similarly situated defendants should be the chance beneficiary of a new rule." The Indiana Supreme Court gets around this by saying, as a procedural matter, that those who did not appeal their sentences are not similarly situated to those who did.

This could be a bonanza on habeas though. The "forfeiture" rule established by Smylie can't, I should have thought, survive as an adequate state ground, however independent it might be, to support state denials of relief. I am right about that, de novo federal review for everyone whom the Indiana Supreme Court has left out of the boat. (That may not be that many people, but there is some number that we cannot know, in part, because of the unpublished opinions of the Court of Appeals.) The Griffith "new rule" analysis is merely a prelude to an opinion applying Indiana's version of Teague to keep the post-conviction dam from bursting. So also was the gratuitous comment that it cannot have been ineffective assistance not to raise Blakely before Blakely. At the moment, post-conviction relief in Indiana is pretty much limited to ineffective assistance claims, which are almost universally despised and therefore ignored.

It will be interesting to see if there will be five justices of the United States Supreme Court willing to make Blakely retroactive to Apprendi.

The remand for resentencing before a jury without any explanation makes no sense for any number of reasons, not the least of which is the lack of any statutory authority. This is really an extraordinary exercise of judicial power and deserved some explanation. The lack of explanation strongly suggests to me a lack of legal justification.

And there is a portion of the opinion rejecting one of the State's (silly) arguments by touching on the aggravator-as-element theme. All but one of the aggravating circumstances supporting Smylie's enhanced sentences are non-statutory. On one view at least, and the view was raised at the oral argument, the use of non-statutory aggravators amounts to the creation of common law crimes. There is not a word about this. (The single statutory aggravator applied cannot be used to enhance a sentence, but the court says nothing about this either.)

And in view of the aggravators-as-elements theme, the State now gets to go back and, in essence, amend the charging information to include the aggravators? There might be a small double jeopardy problem with that.

Why should not Smylie be entitled to withdraw his guilty plea? He was completely misadvised about the possible penalties arising out of the information as filed and, in fact, about the elements of the crimes with which he was charged.

Some of this, at least, is what results from not following the Oregon Supreme Court in Dilts and the Arizona Supreme Court in Brown, I think it was, and not leaving all the questions not necessarily presented by the case to be litigated in the remand. Some considerable degree of chaos may have been unavoidable on remand, perhaps. But deciding the jury issue alone has the court's thumb squarely pressing the scales on the side of the State. Consider the position of the trial judge: the Supreme Court has ordered a trial of aggravators before a jury, so the State gets to do what it will to achieve that.

In the "severance" analysis, the court does not even identify what statute it is "severing" to reach the result it does. As in Booker, no statute is facially unconstitutional, so the court's discussion of what severability analysis it has adopted completely misses the point. Indiana's sentencing "system" is not unconstitutional, though it may have been applied unconstitutionally to Smylie. Consider the numerous cases from the Court of Appeals affirming sentences because Blakely, though applicable to Indiana's sentencing scheme, had no effect on the sentences in those cases.

Consider also the court's own quotation from Dorchy v. Kansas: "A statute bad in part is not necessarily void in its entirety." In fact, the court "severs" nothing, but imposes a jury trial provision out of thin air without identifying any statute that is "bad in part." It is simply untrue that the court applies Dorchy severability analysis. The quote and citation make for nice legal apparatus; but they are entirely misleading.

It is also untrue that there were only two possibilities: the Booker option or the jury option. There was at least a third: no enhanced sentences until the General Assembly amends the sentencing statutes. In essence, there would only have been enhanced sentences for those who admitted aggravators or had criminal histories. That would be Dorchy severance, or something at least more resembling it, if the court could identify a "bad" statute.

I am necessarily at a loss for words to discuss the affirmance of consecutive sentences that the court reverses and remands for "a new sentencing hearing." This is, quite literally, non-sense. Having found the enhancements to the individual sentences violated Blakely, there was, in fact, no reason for the court to even address the consecutive sentencing issue yet. It's not as though there is any split in the decisions of the Court of Appeals.

I see much of this as the damage the remedial opinion in Booker has done. Anything goes, almost, for any reason or for no reason that has anything to do with the law. (The way Chief Justice Shepard writes of the choice between the false severance alternatives is almost blythe. "It's a little more like this than that.")

Obviously, after Smylie, the Indiana Blakely cup is not entirely empty. As I wrote in one of last night's posts, I have a few clients who are going to be thrilled. And equally obviously, many Blakely-related issues remain to be litigated and would have remained to be litigated whatever Smylie said. Neither Heath nor Smylie presented any question related to the prior conviction exception to Blakely and Apprendi.

But Smylie gives me little reason to believe or even hope that when these issues arrive in the Indiana Supreme Court, they will be decided other than as many issues in Smylie were: by fiat.