The Indiana Law Blog: An Homeric Musing

O.K. I don't believe it. I don't believe that after three years of posting pretty much every day, Marcia Oddi is going to be able to quit blogging cold turkey. So I'm not taking The Indiana Law Blog off my toolbar yet.

I think this is like when I reread The Iliad. I always think there's just a chance that Athena will not impersonate Deiphobus, that Hector will therefore have another spear to do in the vile Achilles, and that Dr. Pangloss will have been right. But it always ends the same way come Book 24:

And thus they buried Hector, tamer of horses.

But that ending is only the beginning of a number of rich ironies in later stories The real Deiphobus, Hector's brother, and Paris, also Hector's brother and, on one view, the source of the whole mess, are the ones who eventually do do in Achilles. Then, after Paris leaves the world behind, Deiphobus becomes Helena's husband. But then, now two husbands later, she betrays him to Menelaus, her original husband, and Odysseus as Troy is sacked.

So, Marcia, if you are closing up, if not completely shuttering your virtual windows, may there be many later stories. (I don't think I'll wish you an elegant sufficiency of Homeric ironies, though.)

SB 96: Now P.L. 71

According to this summary of enrolled acts (thanks to Masson's Blog), Senate Bill 96 (SB 96) became Public Law 71 on April 25th. I note that at least one affected code section on Access Indiana's web site, Ind. Code § 35-38-1-7.1, has not been updated yet. Neither have a couple of other aftected sections that I have checked. With the long legislative session, there's a lot to update. I wonder how long it will take.

[Update: Marcia Oddi has written me that the Access Indiana online Indiana Code will not be up to date until September. So we are now in a period when we have to be very careful with any reliance on Access Indiana's version of the code.

New laws have various effective dates. I think the default is usually July 1st of the year of passage. P.L. 71 declared "an emergency," however, and became effective the day it was signed, April 25th.]

Some lawyers have been wondering what effect P.L. 71 is going to have on pipeline cases. The law itself does not say. The general rule is that the sentencing law in effect at the time a crime is committed controls. There is an exception to that in the doctrine of amelioration. But that does not apply here, because "the test to determine whether the legislature has enacted an ameliorative statute is whether the maximum penalty under the new statute is lower than the maximum penalty under the old statute.if the maximum sentence." Hooker v. State, 799 N.E.2d 561, 575 (Ind. Ct. App. 2003) (citing Palmer v. State, 679 N.E.2d 887, 892 n.4 (Ind. 1997)). None of the maximum penalties have been altered by P.L. 71.

So my take is that the situation is not in the least ambiguous: The familiar "presumptive sentence" scheme and Blakely and Smylie apply to any sentencing for a crime committed before April 25, 2005. I certainly welcome other opinions.

Dixon v. State: What would it look like after SB 96?

To provide an idea of what the problems may be with appellate review of sentences after the Governor signs Senate Bill 96 (which he may have already signed, actually), below are two paragraphs from today's opinion from the Court of Appeals in Dixon v. State. It is a pretty straightforward, boilerplate application of Appellate Rule 7(B), which is why I am putting it out here.

With the first half of the analysis, "the nature of the offense," there may not be much of a problem. An appellate court can use the not-so-advisory advisory sentence as "the starting point" as easily as the former presumptive sentence.

The rub is going to come in the second half of the analysis, "the character of the offender," which Dixon pretty accurately describes as "the general sentencing considerations under Ind. Code § 35-38-1-7.1(a), the balancing of the aggravating and mitigating factors under Ind. Code § 35-38-1-7.1(b) and (c), and the other factors left to the trial court’s discretion under Ind. Code § 35-38-1-7.1(d)." The Dixon opinion goes on: "Pursuant to Ind. Code § 35-38-1-7.1(a), the trial court must consider, among other things, the nature and circumstances of the crime committed, whether the victim was less than twelve years of age, the defendant’s criminal history and character, and the risk that the defendant will commit another crime."

Except now, the trial courts will not be compelled to consider anything, as far as I can tell, much less explain the reasons for the sentences they impose. To misappropriate, perhaps, language from Sullivan v. Louisiana, there is not going to be anything on which appellate review can operate, except the sentences themselves.

Some pure hearsay without any indicia of reliability: some judges have been told by some authority in some context that they had better use their new authority wisely, or they will be back to Blakely. I'm not sure what that means. I guess the Indiana Supreme Court could, theoretically, make the Booker-ized sentencing statutes again subject to Blakely by imposing the necessary conditions from above. I think the chances of that happening are zero, although I think the court is going to want to come up with some bridling mechanism, if only so it and the Court of Appeals are not flooded with sentencing appeals and so that the courts do not have to do their review of sentences de novo.

Given the nature of SB 96, though, I'm really not sure that Indiana has not, as a practical matter, eliminated sentencing appeals. Maybe I need to come up with an article of the type, currently in fashion, "Rethinking Appellate Review of Sentencing after Senate Bill 96." I don't think there's anything to think or rethink about sentencing itself. But maybe there is, and I just don't get it yet.

Another lawyer who knows a great deal about Blakely in Indiana has said that Senate Bill 96 will set criminal law in Indiana back decades. I guess we'll see. I don't know whether mandatory minimums (or is that minima?) of the sort being considered by Congress would be worse. I guess they'd just be (arguably) bad in a different way.

Given the percentage of cases that are disposed of by plea bargains, the non-appellate question of the day has to be what effect SB 96 is going to have on the plea bargaining process. The game is going to have completely different rules.

So, just as an experiment, try to imagine what the following passage from Dixon might look like after SB 96 becomes law:

Under Article VII, Section 6 of the Indiana Constitution, we have the constitutional authority to review and revise sentences. However, we will not do so unless the sentence imposed is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B). Our review under Appellate Rule 7(B) is extremely deferential to the trial court. Martin v. State, 784 N.E.2d 997, 1013 (Ind. Ct. App. 2003), reh’g denied. The “nature of the offense” refers to the statutory presumptive sentence for the class of crimes to which the offense belongs. Id. Thus, the presumptive sentence is the starting point in our consideration of the appropriate sentence for the crime committed. Id.

In the present case, Dixon was convicted of two Class A felonies, a Class B felony, and a Class D felony. The presumptive sentence for a Class A felony is thirty years with the minimum sentence being twenty years and the maximum sentence being fifty years. See Ind. Code § 35-50-2-4. With respect to one of the kidnapping counts, Dixon was sentenced to the presumptive thirty years. For the second count, the trial court enhanced the presumptive sentence by a mere four years. Dixon also pleaded guilty to robbery as a Class B felony which has a presumptive term of ten years with a minimum sentence of six years and a maximum of twenty years. See Ind. Code § 35-50-2-5. Here, Dixon was sentenced to the presumptive sentence for the offense of robbery. Additionally, he was convicted of the offense of resisting law enforcement as a Class D felony. The presumptive sentence for a Class D felony is one and one-half years, with the maximum sentence being three years and the minimum sentence being six months. See Ind. Code § 35-50-2-7. For this offense, the trial court sentenced Dixon to an enhanced term of two and one-half years. In summary, Dixon received two presumptive sentences and two minimally enhanced sentences for his four offenses. Considering the nature of these offenses, we find Dixon’s sentence to be appropriate.

The “character of the offender” refers to the general sentencing considerations under Ind. Code § 35-38-1-7.1(a), the balancing of the aggravating and mitigating factors under Ind. Code § 35-38-1-7.1(b) and (c), and the other factors left to the trial court’s discretion under Ind. Code § 35-38-1-7.1(d). Id. Pursuant to Ind. Code § 35-38-1-7.1(a), the trial court must consider, among other things, the nature and circumstances of the crime committed, whether the victim was less than twelve years of age, the defendant’s criminal history and character, and the risk that the defendant will commit another crime. Here, the nature and circumstances of the crime are that Dixon entered a home and kidnapped a mother and her son, who was less than twelve years of age. Armed with a gun, he ordered the young boy into the trunk of the car and directed the boy’s mother to get him through the police roadblock undetected. He then left them on the side of a road and stole their car. Testimony at Dixon’s sentencing hearing revealed the emotional trauma these events caused for the young boy and his mother. As reflected by the presentence report and cited by the trial court, Dixon had a lengthy criminal history, including several felony convictions, and an active warrant from the state of Michigan. Additionally, the risk that Dixon will commit another crime is high in that he was given several opportunities at rehabilitation before committing the instant crime, and his criminal history began when he was a teenager and has continued steadily throughout his adult years. Thus, based upon the character of the offender, Dixon’s sentence is appropriate.

Furthermore, the imposition of consecutive sentences totaling seventy-six and one-half years is not excessive. Sentencing decisions rest within the discretion of the trial court, and the court may increase a sentence or impose consecutive sentences if it finds aggravating factors. Anderson v. State, 798 N.E.2d 875, 879 (Ind. Ct. App. 2003). One valid aggravator alone is enough to enhance a sentence or to impose it consecutive to another. Id. Moreover, the same factor may be used both to enhance a presumptive sentence and to justify consecutive sentences. Id.

I think I can only imagine that it will be much shorter.

Abran & Higginbotham: More on NFP's and Blakely errors

There have been in the last two weeks two curious Blakely decisions published by the Court of Appeals: Abran v. State (decided 3/16/05, published 4/12/05) and Higginbotham v. State (decided 3/10/05, published 4/22/05).

Besides being NFP's that were later published, the two opinions have this curious aspect in common: they were both decided after Smylie, which was decided on March 9th, and they both read as if Smylie did not exist. In Abran, for example, the Court of Appeals deals with the State's standard waiver argument by reliance on it own case, Strong. And the Abran opinion with this quite remarkable observation: "Even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, we conclude that this finding would have no effect on Abran’s sentence."

Abran issued a full week after Smylie. The failure to change the opinion to reflect Smylie's existence I can only attribute to ignorance or sheer sloth. It's probably the latter, with the thought running something like, "Why recirculate an amended opinion that won't change the outcome in an NFP?" I can come up with one good reason: so Abran's lawyer wouldn't have to spend time explaining to Abran that inclusion of Smylie would not have made any difference.

It's actually pretty remarkable that the Abran panel would have wanted anyone to see this. I guess I can only be grateful for yet another view into the Nether World of the NFP.

Higginbotham involves a guilty plea to a specific sentence recommendation. Although the opinion does not mention Smylie, there is no obvious reason or place that it had to, I suppose. Still . . . .

Higginbotham is worthy of note for an additional oddity. The opinion, affirming Higginbotham's sentence, issued on March 10th. On March 21st, the State moved to have the opinion published. The opinion was certified, i.e., became final, on April 20th. Two days later, the Court of Appeals granted the motion to publish.

To start with, I'm not sure that the Court of Appeals technically has the power to order an opinion published once it has been certified. Second, it sure looks like the panel was waiting for certification before ordering publication. Was that to avoid making the decision attractive to the Supreme Court in any eventual transfer petition? (No transfer petition ever showed up, and the time for filing one expired on April 9th.) I don't know. I guess everyone can draw their own inferences.

Substantively, Abran rehearses two motifs in the Court of Appeals' Blakely decisions. First, the need for rehabilitation and the liklihood of committing another crime are simply "derivative" of criminal history. So Carson, arguably Indiana's very first Blakely opinion, still has legs.

Second, having found three of five aggravating circumstances used by the trial court not subject to Blakely, the Abran panel (Crone, Riley, and Robb) does the strict state law version of review: "a single aggravating circumstance is adequate to justify a sentence enhancement." (Emphasis added).

This is the approach first expressed by the Court of Appeals in Stott, I think, a case in which Judge Riley also concurred back in January. On the other hand, Judge Riley has written three opinions--two majority (Altes and Abney and Altes), one dissenting (Riehle)--in which she has explicitly taken the intermediate state-law approach of Patrick. Maybe these judges see no distinction between Stott and Patrick, and I'm making too much of the difference.

In any event, as I mentioned in yesterday's post, this is the wrong battle. I think the Court of Appeals can argue in its cases and among its panels about whether Blakely error is structural or subject to Chapman harmless-error analysis; I do not think that the application of any of the state-law approaches arises from anything but a complete misunderstanding of what Blakely error is. (Of course, if the approach does not arise out of misunderstanding, then something else is going on.)

This Court of Appeals does this, though, all the time, and it is quite incredible. One of my favorite examples is Sallee v. State, 785 N.E.2d 645, 656 (Ind. Ct. App.), trans. denied, cert. denied 540 U.S. 990 (2003), another case in which Judge Riley concurred:

Although we have determined that the trial court erred in denying Pierce's objection and motion to suppress, we must now examine whether the error was harmless. See Gibson v. State, 733 N.E.2d 945, 958 (Ind. Ct. App. 2000). A Fourth Amendment error is subject to constitutional harmless error analysis. Id. An erroneous admission of evidence is harmless where "its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the party." Indiana Appellate Rule 66(A).

(Emphasis added.) What is truly remarkable about this is that Gibson, on which Sallee relies for its doggerel, actually gets it right: "A Fourth Amendment error is subject to constitutional harmless error analysis. If we can state beyond a reasonable doubt that the improperly admitted evidence did not contribute to the verdict, then the error is harmless." (Citations omitted). (Now that it's occurred to me, I'll have to think about whether Sallee deserves a place on the Black List. I'll accept votes either way as comments.)

The other lesson of Sallee is don't count on the U.S. Supreme Court to grant cert. over this--even with a summary remand.

This is far afield, perhaps, from things Blakely. Except it's not. It shows, I think, two things: what the lawyers in this state are up against; and that the Indiana Supreme Court needs to get busy herding the cats--and maybe disciplining them with a water bottle until the cats learn not to walk on the tables.

Booker does speak to the States

I wrote last week in this post that at least the Tennessee Supreme Court in Gomez has misunderstood Booker and that the Blakely oral arguments in California indicated a majority of the California Supreme Court (all justices except one, it seemed to me) appeared ready to come to the same misunderstanding. At first glance, neither Booker majority opinion, properly understood, would appear to have much to say about state sentencing regimes. In fact, I don't think think that Justice Stevens' majority opinion does have much application to state sentencing; but his dissenting opinion does. The Washington Supreme Court in Hughes picked up with a fine eye a footnore in Justice Breyer's remedial opinion that could be crucial for state sentencing--at least for the sentencing cases that come to the state appellate courts before state legislatures, such as Indiana's, Booker-ize the their sentencing statutes.

Justice Stevens' dissenting opinion in Booker answers a question that Mike Limrick and I have disagreed about since just about the Big Bang on June 24th of last year. The question is what use may aggravating circumstances subject to Blakely be put if not placed before a jury and proven beyond a reasonable doubt? My position has been that they must be put aside, and then the judge must weigh any remaining aggravating and mitigating circumstances without taking them into account at all, even in imposing a presumptive sentence.

In this earlier post, for example, commenting on Merlington and Francis, two of three cases since Blakely in which the Indiana Supreme Court has reduced enhanced sentences to the presumptive (see also this earlier post Ruiz, the third of the set), I questioned whether the Indiana Supreme Court could avoid Blakely by revising sentences to the presumptive. Under Indiana state law, the existence of sufficient mitigating circumstances, especially in the absence of any aggravating circumstances, seems to create an entitlement to a sentence less than the presumptive. There are at least two cases from the Court of Appeals that reverse presumptive sentences where there were no aggravating circumstances, and there was one of the two 800-pound gorilla mitigators: absence of criminal history and a finding of guilty but mentally ill. The two cases are: Laughner v. State, 769 N.E.2d 1147, 1162 (Ind. Ct. App. 2002) ("The mitigating circumstances found by the trial court are both undisputed and supported by the record, and no permissible aggravators were found that may serve to offset those mitigators. Accordingly, we remand to the trial court for resentencing of Laughner to less than the presumptive sentence."); and Biehl v. State, 738 N.E.2d 337 (Ind. Ct. App. 2000) (where there were no aggravating circumsances and significant mitigating circumsances in the form of mental illness and no criminal history, a presumptive sentence was manifestly unreasonable), trans. denied. about

Mike Limrick's position was that a presumptive sentence is where Blakely stops, i.e., where there is no requirement that a jury determine any fact. think the following passage from Justice Stevens' dissenting Booker opinion about overlapping sentencing ranges (probably) resolves the question in Mike Limrick's favor:

Consider, for instance, a case in which the defendant's initial sentencing range under the Guidelines is 130-to-162 months, calculated by combining a base offense level of 28 and a criminal history category of V. See USSG ch. 5, pt. A (Table). Depending upon the particular offense, the sentencing judge may use her discretion to select any sentence within this range, even if her selection relies upon factual determinations beyond the facts found by the jury. If the defendant described above also possessed a firearm, the Guidelines would direct the judge to apply a two-level enhancement under §2D1.1, which would raise the defendant's total offense level from 28 to 30. That, in turn, would raise the defendant's eligible sentencing range to 151-to-188 months. That act of judicial factfinding would comply with the Guidelines and the Sixth Amendment so long as the sentencing judge then selected a sentence between 151-to-162 months--the lower number (151) being the bottom of offense level 30 and the higher number (162) being the maximum sentence under level 28, which is the upper limit of the range supported by the jury findings alone.

(Emphasis added.) I do not think that there is anyone on the Court that would disagree with Justice Stevens about this--which is one reason, I expect, he chose this particular method of demonstrating that the Guidelines were not facially unconstitutional.

To spell this out in terms of Indiana sentencing, the Smylie court has already said that the presumptive sentence is the equivalent of the Guidelines' "initial sentencing range" as used by Justice Stevens in the passage above. If a crime has been committed in a particularly cruel way (the equivalent of Stevens' gun), Blakely and the Sixth Amendment do not prohibit a judge from finding and weighing the cruelty against any mitigating circumstance in imposing the presumptive sentence.

I do not think the result is any different for the other states affected by Blakely. In imposing the middle term, for example, a California trial court may consider anything without resort to a jury. (I guess that will be true whatever the California Supreme Court says about Blakely's applicability.)

So it would appear that the Indiana Supreme Court's reductions to presumptive sentences in Merlington, Francis, and Ruiz achieved what, I presume, the court intended: a total escape from Blakely. So also with its remand for the imposition of presumptive sentences, albethey consecutive, in Payne, one of the NFP decisions we know about. (See this earlier post about Payne and the nether world of the NFP.)

The second Booker insight relevant to state sentencing was picked up by the Washington Supreme Court in Hughes. Hughes, not surprisingly, concludes that Blakely is applicable to Washington's sentencing guidelines. More surprisingly, it concludes that Blakely sixth amendment error is structural and can therefore never be harmless.

The court's entire discussion of why this is so is well worth reading. (Part III C of the opinion.) In particular, taking flight from a Ninth Circuit Apprendi opinion that predated Blakely, the court describes pretty accurately why Neder and Cotton plain error analysis is apples, and Sullivan v. Louisiana structural error v. Chapman harmless error is oranges. (An insight I am very grateful for, having missed it meself, for example, in this earlier post, where I said that as between Neder and Sullivan, something would have to give.) Simply put, if I understand Hughes correctly, plain error analysis is procedural: it is about whether an error gets reviewed at all. The argument about whether Chapman or Sullivan applies is about what to do with an error that gets review.

The Washington Supreme Court very cleverly picked up on a small snippet of Justice Breyer's remedial opinion:

[I]f anything, the majority opinion written by Justice Breyer implied that harmless error analysis would not be applicable to such Sixth Amendment violations: "{I}n cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine." Booker, 125 S. Ct. at 769.

The implication understood by the Washington Supreme Court, I think, is that where there is a sixth amendment violation, harmless-error will not be applicable. There remains in this snippet from Booker an ambiguity, I think, that makes the implication perhaps more of an inference: it is not clear (to me anyway) whether Justice Breyer means Chapman harmless-error doctrine or harmless-error doctrine arising out of Federal Rule of Criminal Procedure 52(a). If there is no constitutional violation, presumably he would mean the latter.

After Smylie, the Neder argument is over in Indiana. Blakely errors get reviewed normally, whether they were preserved or not. Blakely errors are of the constitutional variety--sixth and / or fourteenth amendment. Maybe the Court of Appeals could start a discussion about whether the errors are of the Chapman or Sullivan variety instead of continuing the raw disagreement, sometimes of individual judges with themselves, undiscussed, about whether the errors should be reviewed as constitutional errors or as state-law sentencing errors. (See this post about the current three approaches to Blakely errors in Indiana. I said there and have said elsewhere, in the context of the decisions coming from the Court of Appeals, that Chapman harmless-error analysis is correct. That is true, as between the other things the Court of Appeals is doing. But I really think Blakely errors have to be structural if, as the Washington Supreme Court did, one takes Sullivan seriously.)

The Sunday Pickle

Every task involves constraint,
Solve the thing without complaint;
There are magic links and chains
Forged to loose our rigid brains.
Structures, strictures, though they bind,
Strangely liberate the mind.

--James Falen to Douglas Hofstadter, Le Ton Beau de Marot, p. 272.

Case Status Update: A Pile O'Opinions

I have done an update of the status of the Indiana Blakely cases to date. I have not re-linked the cases in the lists below. Links to the decisions appear in the sidebar. As always, I cannot account for the status of unpublished decisions I don't know about. If anyone knows about any unpublished Blakely decisions in Indiana, I invite a comment or an email. I'd love to know about them.

Including Heath (Smylie's companion missing in action), an unpublished decision of the Court of Appeals, it appears the Supreme Court has granted transfer without issuing an opinion yet in three cases:

• Heath
• Patrick
• Aguilar

Including Baehl, an unpublished decision, it appears the Supreme Court has 9 transfer petitions pending from published decisions:

• Baehl
• Cowens
• Traylor
• Trusley
• Mitchell
• Wright
• Ryle
• Altes
• Riehle

The Supreme Court has denied transfer in 11 cases.

• Wilkie
• Bledsoe
• Holden
• Wickliff
• Teeters
• Lampitok
• Payton
• Berry
• Stott
• Strong
• Abney

I have not looked at the denials to see if there is any pattern to be discerned. I think all of the online dockets for cases with transfer pending inlcude an order that the Supreme Court has taken the case under advisement for consideration with other cases with Blakely issues.

I know occasionally one opinion will decide a number of cases. It's efficient in more than the obvious way: the authoring justice gets credit for each of the cases decided for the price of a single opinion. I think the record might have been set in Floyd v. State, a 1994 case, I think, which decided 7 cases at once. Maybe we're looking at a new record in the near future.

The following 9 cases have become final after decisions by the Court of Appeals in which transfer was not sought:

• Carson
• Krebs
• Ware
• Milligan
• Goldsberry
• Pennington
• Padilla
• McNew
• Edwards

SB 96: A Booker Fix Squared

If I read this page correctly, Senate Bill 96 as amended with its Booker fix has passed both the House and Senate unanimously. According to this page on Indiana Daily Insight, the bill has been sitting on the Governor's desk since April 19th, and he has until April 26th to do something.

I find it quite unbelievable that the bill would have passed both houses unanimously. I wonder what other bills have passed unanimously--it would be nice to know what company the Booker fix keeps.

Here is the link to the engrossed act, in the form in which it sits, I presume, on the Governor's desk.

There is some very bad, i.e., confusing and possibly contradictory, drafting in some of the details. But the major thrust of the legislation is pretty clear. Out with fixed, presumptive sentences, and in with "advisory sentences," that are not even all that advisory. There is no statutory requirement that courts consider them.

What is more, the legislation makes it clear that judges may sentence up to the maximum for the class of felony without regard to the presence or absence of aggravating circumstances. Under the new § 35-38-1-7.1(d):

A court may impose any sentence that is:

(1) authorized by statute; and

(2) permissible under the Constitution of the State of Indiana; regardless of the presence or absence of aggravating circumstances or mitigating circumstances.

(Emphasis added). (Interesting that (2) does not mention the United States Constitution.)

I have to think this is going to mean the Indiana Supreme Court's Rules Committee is going to have to get busy in a hurry to try to come up with a response about the way the appellate courts are going to review sentences under the new regime. At the moment, Indiana Appellate Rule 7(b) governs the review of sentences by the Supreme Court and Court of Appeals:

The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.

Review under this rule has usually been based on a (deferential) reassessment of aggravating and mitigating circumstances already found by a trial court.

In the new regime, however, trial judges "may voluntarily" consider the new advisory sentence, but they do not have to. And it would appear that trial courts will be able to impose maximum sentences for good reason, bad reason, or no reason at all. And if any authorized sentence is permissible without regard to aggravating or mitigating circumstances, I cannot see any requirement arising under the statute that trial courts state the reasons for choosing a particular sentence.

Unless the appellate courts want to get into reviewing sentences de novo, which I am almost certain they do not, Appellate Rule 7(b) is going to have to change. Given the unrestricted breadth of discretion the legislation gives to judges in sentencing, I am not sure how the Indiana Supreme Court is going to come up with a requirement that courts give reasons for the sentences they impose. I guess it could say something like the Indiana Constitution requires that trial courts give reasons, because the appellate courts' constitutional power to review and revise sentences cannot be properly exercised without them.

It is not a one way street either, necessarily. Appellate Rule 7(a) prohibits the State from initiating an appeal of a sentence, though it may cross-appeal. Shouldn't the State be able to appeal sentences that are unreasonably low in a regime of statutorily unfettered judicial discretion?

Recall in Smylie, in considering which remedy to choose, Chief Justice Shepard wrote for the court:

In excising only the minimal portions of the existing statute necessary to comply with Blakely, we are much influenced by the fact that the overarching theme of Indiana’s 1977 sentencing reform was a legislative decision to abandon indeterminate sentencing in favor of fixed and predictable penalties. The 1977 act assigned to judges the task of imposing penalties stated as a fixed term of years and created a structure for setting those penalties that is far more definitive than the scheme it replaced.

It would seem that the 2005 General Assembly has come to a unanimously opposite decision.

Smith: Almendarez-Torres is alive and well in Indiana.

On Tuesday, the Indiana Supreme Court decided its second Blakely case.--and it wasn't Heath. (Anyone remember Heath? I'm going to have to go look at the facts again to see what the holdup might possibly be. I recall that the only glaring difference between the cases was that Smylie presented the issue of Blakely's applicability to consecutive sentences.)

The case was Maurice Smith v. State, No. 64S03-0406-CR-284 (Ind. 4/20/05) (Justice Sullivan writing for a unanimous court). The court held that the sentence enhancement for being a repeat sexual offender under Indiana Code § 35-50-2-14 may be based on judge-found facts without offending Blakely or Apprendi because of Almedarez-Torres.

The statute is sort of interesting--a real rarity, I think, if not unique--because it provides for judicial factfinding, but beyond a reasonable doubt:

(a) The state may seek to have a person sentenced as a repeat sexual offender for a sex offense under IC 35-42-4-1 through IC 35-42-4-9 or IC 35-46-1-3 by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated one (1) prior unrelated felony conviction for a sex offense under IC 35-42-4-1 through IC 35-42-4-9 or IC 35-46-1-3.

(b) After a person has been convicted and sentenced for a felony committed after sentencing for a prior unrelated felony conviction under IC 35-42-4-1 through IC 35-42-4-9 or IC 35-46-1-3, the person has accumulated one (1) prior unrelated felony conviction. . . .

(c) The court alone shall conduct the sentencing hearing under IC 35-38-1-3.

(d) A person is a repeat sexual offender if the court finds that the state has proved beyond a reasonable doubt that the person had accumulated one (1) prior unrelated felony conviction under IC 35-42-4-1 through IC 35-42-4-9 or IC 35-46-1-3.

(e) The court may sentence a person found to be a repeat sexual offender to an additional fixed term that is the presumptive sentence for the underlying offense. However, the additional sentence may not exceed ten (10) years.

Maybe there is a fine point or nuance that I am missing, but Smith seems to me a pretty straightforward application of Almendarez-Torres. As such, as one lawyer I know has commented, it might be a pretty good case to test the legs of A-T.

The same lawyer thinks there is something wrong about the folllowing footnote in Smith:

Indeed, the Court’s treatment of Almendarez-Torres may turn out to be the same as its treatment of Walton v. Arizona, 497 U.S. 1050 (1990). The Supreme Court said in Apprendi, 530 U.S. at 496-97, that the rule of Walton was distinguishable and then subsequently held in Ring v. Arizona, 536 U.S. 584, 609 (2002), that Apprendi overruled Walton.

I think it's technically mistaken in that Ring overruled Walton. (From Ring: "Apprendi's reasoning is irreconcilable with Walton's holding in this regard, and today we overrule Walton in relevant part.") I think one would also have to say that with Blakely and Booker majorities both repeating the A-T exception for prior convictions, A-T is still alive and well, and will be until explicitly overruled. I don't think anyone is going to say in a case yet to come that Blakely or Booker in fact overruled A-T, which is what Justice Sullivan seems to suggest might happen.

But I don't think there is anything important about the mischaracterization in the footnote. I guess it might have just been easier to say that there appear to be five votes to overrule A-T, but until the votes vote, A-T is the law.

But again, that's what might make Smith a good case to get the votes voting, even if it is just one of probably hundreds.

My first and last attempt to do the news . . .

With the Indiana Law Blog in its final lap, I thought I'd try to do the news. As will appear, it's a plainly rookie attempt--but maybe with some interesting stuff.

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Here is some reporting on the execution of Bill Benefiel last night:

Merrillville Post-Tribune: Protesters Keep Execution Vigil

Lafayette Courier & Journal: Inmate Executed (AP)

Evansville Courier Press: Governer Daniels is "Ambivalent" about the Death Penalty

Not a word about the execution in the Bloomington paper, or about the band of about a dozen protesters on the courthouse steps last night.

Here's the latest on the reprosecution of David Camm from the Louisville Courier-Journal. (Questioning of a man who sold Boney a gun.)

From Merrillville, The Post-Tribune reports a very sad and puzzling story about a mentally retarded 24-year old woman being held on $25,000 bond for attacking her grandmother.

On Daylight Savings Time:

DST is having trouble in the General Assembly. (Muncie) (Amen, I say. Who needs it?)

"Zero Hour" for DST (Louisville)

Compromise Sought (AP) (Evansville)

From Monticello:

In this report in the Herald Journal, White, Pulaski, Cass, and Carroll Counties get $228,000 Criminal Justice Institute grant for a joint drug task force. (I have to look into what the CJI is supposed to be doing. I thought it was supposed to be more or less neutral as between the prosecutors and the defenders.)

From Fort Wayne

In this story from the Fort Wayne Journal Gazette, in the next 25 years, Indiana is expected to slip from 14th in population to 18th.

The FWJG has this story about the Governor meeting with (mostly Republican) members of various city councils--a violation of the Open Door Law or, as Governor Daniels asserts, just a "caucus."

From the FWJG I also picked up a neat link I didn't know about to audio and video of the General Assembly, House and Senate. I'll have to give it a whirl in my copious spare time.

From Richmond, The Paladium-Item reports here that the Earlham student who pied William Krystol has been charged with misdemeanor battery. (Seems extreme to me. If Krystol were upset enough, he'd have a slam dunk civil suit, and a lawyer to take the case on a contingency fee. I guess the First Amendment permits students to ask Justice Scalia if he sodomizes his wife without fear of prosecution.)

From the Evansville Courier Press, a story that Todd Rokita, the Secretary of State, wants to make Indiana the sixth state to require picture ID's to vote.

And, finally, again fromt the Lafayette Journal & Courier, a great guest column, having nothing to do with law, on the new food pyramid: "I don't wish to frighten you but according to news stories medical science has identified the following foods that will kill you; meat, fish, milk, cheese, eggs and maybe bread. . . ."

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Trying out the news has been educational, but there's no way I can keep this up. And I didn't even look at the Indy Star.

I'm going back to Blakely and the courts.

No More Indiana Law Blog? . . .Say it ain't so, Marcia.

I am shocked and saddened to read in this post that Marcia Oddi is shutting down the Indiana Law Blog in something like a week. Who'd have thunk it with the recent move of the blog to better digital digs?

But I know how much time it must take her to do the amazing work she does, as she says, almost every day without a miss. Cutting, pasting, editing, linking, posting and, before doing any of that, reading, culling, and collecting.

None of us doing blogging on Indiana law can replace her individually. But maybe the other blogs dealing with Indiana law (there will always be only one Indiana Law Blog) can collectively cover most of the territory. It's a dirty job, but somebody has to do it.

I am going to commit myself to filling in with the weekly transfer lists. (Now I just need to find out how to get them. Please tell me I don't have to drive to Indianapolis every Friday.)

Any chance, Marcia, you're going to say, "Just kidding"?

If not, thanks for all the help keeping track. And just for all the help.

She told me . . . she didn't do it.

Here's a story from a public defender up north sent to a listserv for pd's. He's given me permission to post it.

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I'm going to be 46 years old this July. Got my license on July 5, 1984.

About a year ago, I was assigned to one Tamika Lewis, who was charged with two counts of forgery, one count of bank fraud, and one count of theft. For those unfamiliar, that's 2-8 years times three, and the theft is 6 months to 3 years.

She told me . . . she didn't do it.

FOUR eyewitnesses said that she did it. Three of them were young black males. Two of them, Brandon and John, had been friends for six years. One of those two, John, claimed he knew Tamika for several years. John was a friend of the third young black male, JB. All were from Gary.

She told me . . . she didn't do it.

The one that REALLY threw me was the white, Lithuanian kid from Lake Station, George. He didn't know the black guys. They said they didn't know him. All four picked her photo when shown to them by 'ace' Merrillville Detective Westmoreland.

DWS.

Long story . . . short . . . Brandon's parents went to Florida for a week. He called John to come stay at his house and party 'for a while.' John asked to bring 'Tamika' along. When Brandon's parents returned, jewelry was missing, and several checks were taken, forged, and cashed. Two of the guys who cashed them were John's friend JB, and the Lithuanian guy from Lake Station. They picked her photo and said Tamika put their names on the checks, they cashed them, and Tamika let them keep 20 bucks.

She told me . . . she didn't do it.

I said, 'Tamika . . . I can understand someone LOOKING like you . . . but to LOOK like you and have the NAME, Tamika Lewis, that . . . is almost too incredible.'

She told me . . . she didn't do it.

The State offered to dismiss the three C felonies and let her plead to the D theft, agreed probation. Hell, since all she had was a prior battery from 2000, they said that if she paid the $1,200.00 in restitution, they'd give her misdemeanor treatment.

She told me . . . she didn't do it.

I warned her . . . she wouldn't get too many black jurors. When the venire came in, 2 of 33 were black.

Young black male was in the box. Kept him. Struck 8 of the first 14 [don't ask]. Next black juror comes in . .. middle age female. Almost immediately raises her hand and says that she believes ANYONE charged with a crime is guilty. Judge asks us to approach. Unilaterally suggest she be removed for cause. I refuse. I end up using her to educate the others. She had three kids ... I used them as an example of your own children lying ... of what you'd do if they were wrongly accused ... of how she didn't know where they were for large gaps of time 18 months before [when the charged crimes were committed].

So we get a jury. I tell my client . . . that while I tried to load it up with women . . . and I think we were fortunate . . . that if those four come in and say that they're SURE she was 'Tamika,' she's cooked.

She told me . . . she didn't do it.

So . . . we come in Wednesday morning. And right off the bat, prosecutor challenges the . . . TA DA . . . young black male juror . . . saying they did a criminal records search on ALL the jurors and found that he had been charged with check deception. When asked on Monday if anyone had been charged or convicted with a crime, he didn't raise his hand. He gets called into court to stand RIGHT before the bench . . . he said that it had been dismissed, so he didn't think it counted. Judge says, on the record, that he finds that the juror perjured himself, and that he was dismissing him from the jury.

I object, argue that there is no showing of any intentional deception, complain about how the State can check criminal records but we can't, claim that my client isn't getting a jury of her peers . . . all falling on predictably deaf ears.

We take a break. My client goes RUNNING out of the courtroom in tears, wailing about why Jesus is letting her be persecuted. Her stiletto heels made quite the rat-tat-tat as she ran, using baby steps, down the linoleum flooring . . .

About this time, it's getting a little over the top for me. But . . . hey, she's the client, right? I've advised her of my expectations . . . I've explained to her the plea offer . . . I've given her my opinion of where this is probably going to go . . . and she's made her decision. It's her call, right?

So I suggest to her, one more time . . . that I might be able to get her the same deal.

She told me . . . she didn't do it.

So we do our openings. And we break for lunch.

I'm back WAY early. Deputy prosecutor comes in. Approaches me. Says 'we have a problem.'

I'm like thinking, 'what juror did what now . . .?'

She continues . . . 'Brandon and John saw her . . . and . . . SHE ISN'T THE GIRL THAT DID IT.'

Hunh??????

'SHE ISN'T THE GIRL THAT DID IT. They're positive.'

I thought back . . .

She told me . . . she didn't do it.

She was right.

Tennessee & California: Misunderstanding Booker

I have to cross-post the following about the Blakely disaster in Tennessee. (People v. Gomez, No. 2001-A-280 (TN April 15, 2005) (dissenting opinion here).) As Sentencing Law & Policy recounts here, there is little question that the Tennessee Supreme Court got it really wrong, even over the Tennessee AG's concession that Blakely applies to Tennessee sentencing. In this post today, Doug Berman quotes from an email, I think, by a Tennessee lawyer involved in the Blakely doings there:

Until last week everyone assumed the Tennessee presumptive sentencing scheme violated Blakely, so much so that the governor appointed a commission which recommended a Booker-like advisory sentence fix. Even the Attorney General agreed that the current law was flawed. To the astonishment of all, the Tennessee Supreme Court upheld the constitutionality of the Tennessee sentencing guidelines in State v. Gomez. The majority of the Supreme Court held that, notwithstanding a mandatory, presumptive sentence the discretionary enhancement factors somehow made the statute "advisory" and thus allegedly constitutional. To his credit the Attorney General filed an immediate petition to rehear saying "it is as plain as a pikestaff that a Tennessee judge has no authority to impose a sentence above the presumptive minimum -- the sentence authorized by the jury verdict alone -- unless an enhancement factor is found."

(Emphasis added.) Chapeau to the Tennessee AG.

Onions to Indiana's, who almost never concedes anything, and sends his deputies in his stead into the appellate courts to make arguments that would be laughable, except that they take up so much time. (For an example, have a look at the recent oral argument in Armstrong v. State (summary here, argument here with Real Player), in which the deputy argues with a straight face that a plain, uncontradicted holding of the Court of Appeals barring a prosecution may not be relied upon by the public because: 1) it was just a relatively recent holding of an intermediate court; and 2) other jurisdictions come out on the question involved differently; so 3) it should have been "foreseeable" that the statute would apply to the situation. It is worth watching the argument also because the interesting question arises whether one panel of the Court of Appeals is bound by the prior decisions of other panels.)

Seems like the Tennessee AG is interested in something like law instead of just what he can get away with. Maybe he's even trying to save the Tennessee Supreme Court from itself, because the Gomez opinion is an open invitation to cert. The wilfulness of the majority opinion is really quite extraordinary. How many times does one see a state high court recite instances in which it has been reversed by the United States Supreme Court? And the recitation is quite different from Posner's prayer in Booker in which he asks to be speedily reversed if the decision is wrong (which it wasn't). Posner seems to have tried to apply Blakely as it came to him in Booker and felt stuck with the result. I understand the Tennessee Supreme Court's opinion in Gomez to intentionally get it wrong and then dare the litigants to file a cert. petition. If it is not remedied on rehearing, I hope the dare will be taken up.

Gomez is important beyond Tennessee, however. The California Supreme Court heard oral argument in Towne and Black, its two Blakely cases. I have to say that I was surprised to see that all but Justice Kennard (Dutch, I think, from Java) seemed to buy both the irrelevant portion of Stevens' majority opinion in Booker about discretion within the statutory range and the argument that a found fact does not mandate an increased sentence.

The California arguments are here (Windows Media Player) and well worth listening to. When it became clear that the others were not getting it, especially Chief Justice George, Justice Kennard filibustered with long, pro-Blakely-applicability questions.

So Gomez would appear to provide a foundation for future California Supreme Court opinions in Towne and Black saying that Blakely does not apply to California sentencing.

What Indiana, New Jersey, California, and Tennessee all have in common is that the Apprendi-Blakely "statutory range" is a point. This is what the Tennessee Supreme Court did not get and what a majority of the California justices appear not to have gotten.

As an aside, before Smylie, two judges of the Indiana Court of Appeals also thought that Justice Stevens' disquisition about judicial discretion within the statutory range changed something. (Judge Robb, concurring in result in Abney (2/15/05) and Judge Barnes dissenting in Edwards (2/28/05).) Fortunately, Smylie nipped this particular growth in the bud.

The passage from Justice Stevens' majority Booker opinion that is doing all the (unnecessary) damage is the following:

If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. See Apprendi, 530 U. S., at 481; Williams v. New York, 337 U. S. 241, 246 (1949). Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges; it is that circumstance that makes the Court's answer to the second question presented possible. For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.

But the next sentence of Justice Stevens' opinion also does some damage as misunderstood by a number of judges: "The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges." (Footnote omitted). It is from this, I think, that the majority in Gomez and an apparent majority of the California Supreme Court derive the mistaken notion that the question is whether an enhanced sentence is "mandated" by judicially found facts.

These bits from Booker change nothing, if the "statutory range" is a point. And I still say that, with respect to Blakely's applicability to a particular sentencing regime, a court ignores the Dilts test at its peril: Would the sentence be reversed but for the judicially found facts used to enhance the sentence? As the Dilts court itself said, this is the question the Blakely court asked.

Time to go to a vigil protesting an Indiana execution tonight. Bill Benefiel.

The Sunday Pickle

The greatest gathering of human beings in history for the funeral of Pope John Paul II might be evidence that Karol Józef Wojtyła came the closest in human history to achieving the Twainian ideal:

Let us endeavor so to live that when we come to die even the undertaker will be sorry.

Morrison: Blakely does a double (jeopardy) twist.

Blakely and its application in Indiana just keeps on surprising. One of last week's cases, Morrison v. State, Court of Appeals No. 49A02-0403-CR-216 (Ind. Ct. App. March 31, 2005), makes the following startling maneuver: 1) it sua sponte vacates two of four convictions on state double jeopardy grounds; and then 2) affirms the sentences on the other two convictions over a Blakely challenge, because the facts supporting the enhancement to one of the sentences were (only arguably) elements of the two vacated convictions and therefore proven to a jury beyond a reasonable doubt.

My immediate reaction to this maneuver is that is at least contrary to the well-established rule, relied upon all the time, that when a conviction is reversed on appeal, the parties are restored to the position they occupied before the judgment. E.g., Gibson v. State, 661 N.E. 865, 867 (Ind. Ct. App. 1996) ("[T]he effect of a reversal of a judgment is to vacate and nullify the judgment, which restores the parties to the position they held before judgment." (Citation omitted).) To me, that means there are no jury findings from the vacated ("nullified") convictions on which the Court of Appeals may properly rely to affirm the enhanced sentence.

I will note that in Gibson, the application of this well-established rule benefited the State.

Blakely just keeps on doing damage as this state's appellate judging corps seeks new and ever more ingenious ways to avoid its requirements--when it wants to. It has almost driven me to wish that the Supreme Court had said in Smylie that Blakely does not apply to Indiana sentencing. Almost.

Holden, Stott, and McGinity: More on vote switching.

Since Holden, Stott, and McGinity each stand for a different method of assessing Blakely error, I thought I'd make the mistake of seeing who voted for what when. And it was something of a mistake.

It turns out that Judge Vaidik, who wrote today's McGinity opinion with its intermediate method of assessment, voted for Holden's Chapman harmless error analysis back in October.

It turns out that Judge Najam, who voted for McGinity's intermediate method today, voted for Stott's minimalist method of affirming upon the presence of a single valid aggravating circumstance back on January 5th.

Judge Najam also wrote Patrick back on December 23rd, in which transfer has been granted, and which states about four different methods of assessment. In the end, it looks like the method applied by Patrick is that of McGinity, if one is to judge by the sentence, "[W]e cannot say with confidence that the remaining permissible aggravators would have led to the same result," in conjunction with the reversal.

So Judge Najam has been on both sides of McGinity and Stott and then back again.

If someone believes I am incorrect or picking nits that are too fine in saying that these three cases stand for very different approaches to Blakely error, I certainly invite comments. Similarly, I invite comments if someone believes that the differences in the approaches don't make a difference. What an appellate judge does with an error once found, it seems to me, is even more of the essence of appellate judging than finding the error in the first instance. And the outcome of any given case may well depend on which of the the three methods a Court of Appeals panel chooses to employ.

For the moment, it would appear that any judge may choose any method in any case at will.

McGinity: What can we say with confidence?

I need to go back to basics, i.e., reporting on the Blakely cases as they come out. Today produced McGinity v. State, Court of Appeals No. 34A02-0404-CR-345 (Ind. Ct. App. April 4, 2004). The Court reversed McGinity's sentence under Blakely and Smylie.

The aggravating circumstances found by the trial court were: "(1) the imposition of a reduced or suspended sentence would depreciate the seriousness of the crime; (2) lack of remorse; and (3) the nature and circumstances of the crime."

The mitigating circumstances found by the trial court were: "(1) that McGinity has no known delinquent or criminal convictions, and (2) McGinity’s character and attitude." (Footnote omitted.)

There is much that is interesting about this case, but what caught my eye as something new was a footnote in which the Court of Appeals said: "In light of our disposition, we do not reach McGinity’s second issue of whether his sentence was inappropriate under Indiana Appellate Rule 7(B)." Recall that in Merlington, Francis, and Ruiz, it that the Supreme Court exercised its power to review and revise sentences to impose, on its own, presumptives. In that way, the Supreme Court appeared to avoid any Blakely problem. (Previous posts about these three cases here and here.)

The Supreme Court also appears to have taken the same approach in Payne, the unpublished decision in which it granted transfer for Blakely reasons and remanded the case to the trial court to impose consecutive presumptive sentences. (Previous post here.)

But in this case, the Court of Appeals appears to have preferred reversing.

As long as the mention of Payne is fresh, McGinity is also interesting in light of the Supreme Court's transfer order in Payne. As set out in this other previous post about Payne, one of the aggravating circumstances was "the nature and circumstances of the crime." The Supreme Court's transfer order certainly implied that "the nature and circumstances of the crime" is "unlikely" to make it past a Blakely challenge.

In McGinity, the Court of Appeals finds that McGinity admitted to the nature and circumstances of the crime at his guilty plea and sentencing hearings:

McGinity admitted in his testimony at the sentencing hearing that he abruptly left the scene of the crime in his car without checking on the condition of the victim, id. at 31, and that he had not apologized or otherwise expressed feelings of sorrow or remorse to the victim’s family. Id. at 34. From the record, it is apparent that McGinity also admitted to the fact that he did not initially stop when the police were trying to stop him after he fled from the scene in that McGinity stipulated to the admission of and admitted to the facts as stated in the Probable Cause Affidavit as the factual basis for his guilty plea. The Probable Cause Affidavit explained that McGinity did not stop his vehicle when the first patrol car activated its lights and attempted to initiate a traffic stop; rather, McGinity’s car did not stop until a second patrol car, assisting with the traffic stop, drove in front of McGinity’s car. See Appellant’s App. p. 15. As such, McGinity admitted to all the facts underlying the nature and circumstances aggravator. Under Blakely if a defendant admits to facts underlying an aggravator, the jury does not have to determine beyond a reasonable doubt whether that aggravator exists.

The admissions do not, of course, take care of a number of things. First, McGinity could not have been advised about the effect of his admissions under Blakely. Second, and more importantly, McGinity was never charged with the aggravating circumstance, so he could not have had any notice of the aggravating circumstances before he made his admissions. ("The nature and circumstances of the crime" is a statutory consideration, but it is not a statutory aggravating circumstance, so there remains the question of whether its use amounts to the prohibited creation of a common law crime.) And, to the extent that the court's probation department investigated and "charged" the aggravating circumstances, McGinity's admissions do not take care of the fact that the court, through its probation department, acted as a second prosecutor.

Perhaps McGinity will be able to make all of these objections when he goes back for resentencing.

The truly distressing thing about McGinity, however, is that it now provides yet a third standard by which the Court of Appeals assesses Blakely error. The first and, in my view, correct standard is Chapman harmless error analysis as set out in Holden: in order to affirm a sentence, the court has to be able to say that there is no reasonable possibility that the Blakely error contributed to the sentence. Patrick started to follow Holden on this, and then went awry. (See this post about Patrick.)

At the other end, there is Stott, in which transfer was just denied. As I mentioned in this post, Stott's standard for affirmance appears to be whether there is any "valid" aggravating circumstance. If there is, because a single aggravating circumstance "is" sufficient to enhance a sentence, the Court of Appeals will affirm. (People laughed at President Clinton's deposition testimony. But it is remarkable how often much depends on what the meaning of "is" is.)

McGinity now gives us a third, intermediate approach: the court asks whether it "can say with confidence" that any "valid" aggravating circumstances would have resulted in the same sentence. If it can, then the court affirms.

And a final word about why Chapman provides the correct standard by which to assess Blakely error in the state courts. In Smylie, the Indiana Supreme Court did not say that it would review unpreserved Blakely error as if it were Indiana "fundamental error" and so look at the fundamental fairness of the sentence vel non. Had Smylie taken the fundamental error route, then something less than Chapman might be appropriate, as with the Seventh Circuit's (controversial) plain error approach as set out in Paladino.

But Smylie says, as I read it, to treat Blakely error as if it had been preserved and to review it in the normal way. The normal way to review Sixth or Fourteenth Amendment error is Chapman harmless error analysis.

One can only hope the Supreme Court will take care of this when it issues its transfer opinion in Patrick. (And by "take care of this," I almost mean, simply, pick one approach, whatever it is. Almost.)

For the time being, though, we have judges taking opposite positions in unpublished and published decisions, and now three ways to assess Blakely error.

So a client comes to me and wants to appeal his sentence because of Blakely error. What do I say?

Stott: Transfer denied not harmless.

Yet another grant of transfer escaped my notice, and I am hoping, now that I have ditched Acrobat Reader 7 for my trusty Acrobat 5, page skipping will be something I can only look back on. In addition to granting transfer in Campbell, Payne, and Aguilar, and denying transfer in Strong, the Supreme Court denied cross-petitions to transfer in Stott (1/5/05), with Justice Boehm voting to grant transfer.

Stott was a case in which the Court relied on Strong to defeat the State's Blakely waiver argument, on the one hand, but on the other affirmed Stott's enhanced sentence, based in part on an unspecified criminal history. The aggravating circumstances other than the unspecified criminal history were pretty clearly subject to Blakely: "the nature and circumstances of the crime as expressed by the fact that there were multiple victims, that Stott was in a position of trust, and that the molestations had a traumatic effect on the children."

I know from Stott's lawyer that the unspecified criminal history consisted of "just a few misdemeanors in decades of adulthood." So can it be said that the Blakely error, even in light of the criminal history, was harmless beyond a reasonable doubt? That is not the question the Court of Appeals answers in Stott:

Stott contends that because of the absence of the second mitigator the trial court might not enter the same sentence. However, we hold that the prior criminal history aggravator is sufficient to uphold an enhanced sentence in this case. An enhanced sentence may be imposed when the only aggravating circumstance is the defendant’s prior criminal history. Miles v. State, 777 N.E.2d 767, 773 (Ind. Ct. App. 2002).

In Miles, the case relied upon in this passage, the Court of Appeals affirmed a sentence over a state law challenge that the trial court had improperly ignored various mitigating circumstances. In addition to criminal history, there were a number of other aggravating circumstances found by the trial court.

The sentence from Miles apparently relied upon by Stott panel is this: "The trial court could have enhanced Miles’ sentence on his prior criminal history alone." (Citation omitted.) Yes, well, where there's an alleged state law sentencing error, that may be sufficient and even, sadly, correct analysis. (In fact, if you trace the cases back from Miles, the original case cited for this proposition says no such thing. This happens all the time.)

Chapman harmless error analysis looks quite a bit different and was stated and applied correctly in Holden. The court has to ask whether there is any reasonable probabability that the error contributed to the sentence, not whether the valid aggravating circumstances could support the sentence if the aggravating circumstances barred by Blakely are set aside.

Transfer was also denied in Holden some time ago. So now we have two certified opinions from the Court of Appeals performing entirely different forms of error analysis. I guess trial courts and even the Court of Appeals will now be able to pick at will which form it prefers for which case.

It is a pity that the Supreme Court did not do something--for example, grant transfer and summarily remand to the Court of Appeals for reconsideration in light of Chapman and maybe even Holden. Perhaps the Supreme Court has another case up its sleeve in which it is planning on disapproving Stott. That doesn't help Mr. Stott very much.

Now that I have been mucking about for a while in unpublished opinions, the transfer lists, and the online dockets, I'm going to have to take a step back to see if anything more general can be known or surmised about where things stand. And I still have my trench report from Friday to write. On that, for now, I'll say at least that the judge asked me twice on the record if I wasn't committing malpractice by raising Blakely as a basis to withdraw my client's plea.

What a week. And I haven't even gotten to the two new Blakely cases that came down this week or the one non-BlakleyBlakely case.

Strong: Another denial of transfer.

In going over the transfer list from last week, I see that yet again I missed a page or two scrolling through the document. It turns out that transfer was denied in Strong (11/05/04), one of the first cases to apply Blakely in reversing a sentence. (The Court of Appeals also issued a rehearing opinion on 1/12/05 reaffirming its earlier holding that a defendant did not have to have made an Apprendi objection to preserve a Blakely claim.)

Strong also provides a follow up to my posts (here and here) about Judge Robb and Chief Judge Kirsch: 1) voting for forfeiture of Blakely claims in unpublished opinions; 2) then against forfeiture in a published decision; and 3) then later against rehearing on the forfeiture issue in at least one of the unpublished decisions. Strong was the first explicit no-forfeiture published decision that predated the unpublished decisions. Strong had not been certified at the time Judge Robb and Chief Judge Kirsch voted with Judge Baker in Payne and Campbell to require an Apprendi objection in the trial court to preserve a Blakely claim, so it didn't mean anything, I guess one could say in the judges' defense.

The denial of transfer in Strong may be interesting with respect to Smylie's forfeiture rule. Recall from this post that transfer has been granted in Aguilar, and that my guess is that it is to say that Aguilar forfeited his Blakely claim by not challenging his sentence under state law in his opening brief and by then raising Blakely for the first time in a petition for rehearing.

Strong did not raise Blakely until an amended opening brief. I am trying to find out if the original opening brief included a state law challenge to Strong's sentence. If it did not, I'd say the application of Smylie's forfeiture rule will have grown a bit more interesting: amended briefs get you in; rehearing petitions don't. I guess we'll see.

Transfers: Three granted, two on State's petitions.

It's Friday. That means transfer day over on the Indiana Law Blog. Here's Marcia Oddi's link to the week's transfer list.

The Supreme Court has granted transfer in two criminal cases and one civil case. The cases are:

Kenyan Taylor v. State, Court of Appeals No. 48A02-0402-PC-133 (Ind. Ct. App. January 14, 2005);

Terrease Nesbitt v. State, Court of Appeals No. 71A05-0404-CR-200 (Ind. Ct. App. November 24, 2004) (mem.); and

City of Vincennes v. Kevin Emmons, Court of Appeals No. 42A02-0402-CV-193 (Ind. Ct. App. November 10, 2004).

It was the State that sought transfer in both criminal cases. In Taylor, the Court of Appeals reversed a denial of post-conviction relief on an ineffective assistance claim.

Although Nesbitt is unpublished, according to the online docket, the Court of Appeals affirmed the convictions but remanded for resentencing. The sentencing in the case took place well before Blakely, but the brief was filed last August, a month after Blakely, so it might be a Blakely case. I'm trying to get a blog helper to get the opinion. There isn't anything in the docket entries to give it away.

It is my impression that I cannot back up with a hard statistic that the Supreme Court has been granting a disproportionately large number of the State's transfer petitions, especially in cases in which the Court of Appeals' opinion was unpublished.

I have a Blakely trench report to get to. It was a very interesting morning in court on my one live Blakely case in a trial court. The background to the case can be found here and here. Documents I filed in the case are linked in the second post.