Smylie: What it says.

Smylie, decided 4-1, with Chief Justice Shepard writing the majority opinion and Justice Dickson dissenting, decides a number of Blakely related issues for Indiana, and a simple list might be useful. I will try to be as simply factual as I can about what the court decided.

• Blakely applies to Indiana's sentencing scheme to the extent that an enhanced sentence must be justified by the finding of an aggravating circumstance.

That is, Indiana does have a determinate sentencing scheme. It is even more determinate than Washington State's, because the sentencing "range" authorized by a juries verdict is a single point: the "fixed term" mentioned in the statutes and usually referred to in the cases as "the presumptive sentence." Slip op. at 5, 6.

That determinate sentencing scheme is affected by Blakely, because, "Indiana’s sentencing system runs afoul of the Sixth Amendment not because it mandates a “fixed term” sentence for each felony, but because it mandates both a fixed term and permits judicial discretion in finding aggravating or mitigating circumstances to deviate from the fixed term." (Slip op. at 7.)

• Facts that are used to enhance a sentence above the presumptive must be found by a jury.

The court does not Booker-ize the sentencing statutes by saying that the "fixed term" mentioned in the statutes has no binding effect, allthough it says that would be an option. Slip op. at 8.

• Blakely does not apply to or limit a judge's discretion to impose consecutive sentences.

"There is no constitutional problem with consecutive sentenceing so long as the trial court does not exceed the combined statutory maximums." Slip op. at 9.

• Smylie's relief is a reversal of his enhanced sentences, affirmance of the consecutive [nature of?] sentences, and a remand for resentencing before a jury at the State's election.

I guess the rationale behind affirming the consecutive sentences that have just been reversed as to enhancements, at least, means that were the State to choose not to seek a jury trial of the Blakely aggravating circumstances in the case, the trial court could impose consecutive presumptive sentences. But that makes no sense either, because the Court remands "for a new sentencing" on both counts for which Smylie was convicted. Slip op. at 10So I end where I began: how does a court affirm sentences in one respect that it has just reversed in another? I guess this case shows us how.

• A Blakely claim is available to anyone whose case was still pending on direct review at the time Blakely was decided (June 24, 2004) and who challenged his or her sentence on appeal.

That description of the class is mine and may be broader than the court intends. The court does say that "it is appropriate to be rather liberal in approaching whether an appellant and her lawyer have adequately preserved and raised a Blakely issue." Slip op. at 14. But what the court actually says in two paragraphs on page 15 should not go unquoted:

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.

Defendants who have appealed without raising any complaint at all about the propriety of their sentence have arguably made the sort of knowing and intelligent decision regarding their appeal that is required for waiver to exist. 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.

There is some number of people who: 1) challenged their sentence in the Court of Appeals; 2) had petitions to transfer denied before Blakely was decided; but 3) whose direct appeals were not yet final when Blakely was decided. This is so, because direct appeals are not final until the time for filing a cert. petition has passed, 90 days after the denial of transfer.

I have no idea what the number is. But are they now going to be entitled to post-conviction relief based on Blakely? At page 13 of the opinion, the court says that its approach is "entirely consistent with the dictates of Griffith [v. Kentucky]." I should think post-conviction relief would be available to the 90-day folks. The problem is, I don't know what the post-conviction claim would be, since the court says on page 15, that a lawyer cannot have been ineffective for failing to raise a Blakely claim before Blakely was decided. I suppose due process and equal protection claims might be available.

Justice Dickson's dissent is noteworthy in two respects. First, he would have Booker-ized the sentencing statutes. Second, he says that people who successfully challenge their sentences under Blakely may ultimately, on remand, as I understand it, receive greater sentences than they did the first time around. There's no citation to authority for the latter proposition; and the majority opinion does not deal with the issue at all.

I think that is a pretty fair summary of what Smylie says. As always, I invite corrections by comment.

I leave the beginning of the commentary for tomorrow--er, later today, now.