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.