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.