Another Three from the Court of Appeals: Freeze, Carmona, and Dillard

They seem to be coming in threes. There were the three transfer cases from the Indiana Supreme Court back on May 10th and 11th: Patrick, Aguilar, and Nesbitt. Now the Court of Appeals has issued three together on May 18th: Freeze, Carmona, and Dillard.

I'll put the good news first. Freeze, written by Judge Barnes, is (more than?) arguably the best Blakely opinion of any Indiana appellate court to date and therefore a must-read for its discussion of how a Blakely error, once found, is to be reviewed. That is, Judge Barnes provides several noteworthy paragraphs about harmless error, mentioning Neder, Almendarez-Torre, Sullivan v. Louisiana, and Shepard in the process.

I'm not sure that the Indiana Court of Appeals ought to be guessing about the continued vitality of Neder, but it is a discussion worth having--unlike the discussion about whether Blakely constitutional errors should be reviewed under state law rules or standards that (should) have no application in the context of constitutional errors. Judge Barnes' opinion is especially interesting when put next to the similar discussion in the Washington Supreme Court's Hughes decision.

Carnona and Dillard, on the other hand, written by Judge Friedlander, are each notable for precisely one thing: a citation to Ryle, in which transfer has been granted, for the proposition that juvenile adjudications are "prior convictions" for Apprendi / Blakely purposes. Let me just quote the relevant part of Indiana Appellate Rule 58(A): "If transfer is granted, the opinion or not-for-publication memorandum decision of the Court of Appeals shall be automatically vacated . . . ." That is, at the moment, Ryle is not authority for anything.

If the panel in Carmona and Dillard had wanted to come up with new reasons to treat juvenile adjudications as prior convictions and so add to the discussion before the Indiana Supreme Court decides Ryle, that would have been even admirable.

Because the court affirmed the sentences in Carmona and Dillard, I can see no reason to have issued the opinions before a decision from the Indiana Supreme Court in Ryle--except the chase for statistics related to the number of opinions and the speed with which they are issued. If Ryle as decided by the Court of Appeal turns out to have been correctly decided, they just change the citation to the Supreme Court's Ryle opinion; if not, then Judge Friedlander has to rewrite the opinion.

It is also not true that the premature appearance of these opinions will be harmless even if the Supreme Court comes out in Ryle the way the same way as the Court of Appeals. The Supreme Court's decision in Ryle will not appear until long after the time has passed to petition for transfer in Carmona and Dillard. There will, therefore, almost certainly be petitions to transfer in both cases. That will take up lawyers' time and clients' money writing the petitions and the Supreme Court's time dealing with them one way or another. That is, a relatively brief delay in issuing Carmona and Dillard might have spared everyone the aggravation and expense of unnecessary transfer petitions without regard to the outcome of Rylein the Supreme Court.

So did a clerk for Judge Friedlander make a mistake? Did Judge Friedlander know about Ryle and order the opinions issued anyway--perhaps because the opinions had already been voted on? Did someone, clerk or judge, simply miss the grant of transfer in Ryle? My guess is option two, although it could have been either of the other two.

Maybe Carmona and Dillard will petition for rehearing in the Court of Appeals, and the Court of Appeals will sit on that until the Supreme Court issues its decision in Ryle. Rehearing petitions are (usually) quick and cheap. I do not think I have ever heard of the Court of Appeals withdrawing an opinion, but it might have happened.

Three Blakely Transfer Decisions: Patrick, Aguilar & Nesbitt

It always seems I'm out when the big cases hit. The Indiana Supreme Court issued three Blakely opinions today, all per curiam: Patrick and Aguilar, which we knew about, because they were published decisions from the Court of Appeals; and Nesbitt, a case that's been running under my radar, at least, because it was unpublished. (I wonder how many of those there are.)

The short of it is: 1) In Patrick, the Supreme Court said that the State could opt for a sentencing hearing to try the aggravators--the Court of Appeals had said no jury trial; 2) In Aguilar, as I think I said I suspected, Aguilar did not challenge his sentence until rehearing after Blakelyhad been decided; and the Supreme Court said he had forfeited the claim; and 3) Nesbitt is similar, except that the Court of Appeals had remanded for Blakely reasons sua sponte; and the Supreme Court said the Blakely claims had been forfeited.

I'll try to get links and some commentary up tomorrow. For the time being, the cases can be found temporarily (until tomorrow's cases tomorrow afternoon) at this link. They are, at first glance, not all that interesting, except as a demonstration of the court's seriousness about Smylie's highly problematic, if not outright suspect, forfeiture rule. There's still no authority but Smylie's say-so for jury trials of aggravators--and no comment on the double jeopardy or common law crime problems that may arise from treating aggravators as elements.

But I repeat myself.

It's been a suppressing day.

Ryle: Transfer granted on two questions

One of the lawyers involved in the case wrote to me to note that the Supreme Court has granted transfer in Ryle (3/1/05) and ordered supplemental briefing on two questions, which are put as follows in the order appearing in the online docket:

In light of Blakely v. Washington, 124 S. Ct. 2531 (2004), and Smylie v. State, 823 N.E.2d 679 (Ind. 2005), are the facts that appellant (1) had been previously adjudicated a delinquent treated as a prior conviction and (2) was on probation at the time of the offense treated as derivative of Appellant's criminal history under Apprendi v. New jersey, 530 U.S. 466, 490 (2000), such that the facts need not be found by a jury before the trial court can use them to enhance Appellant's murder sentence beyond the presumptive term?

To answer these questions, both Ryle and the State have been given a whopping 7 pages or 3,200 words. If I understand the order correctly, it's blind filing for the supplemental briefs: they're to be filed at the same time with no reply permitted.

Although it does not appear yet on the Supreme Court's online calendar or oral arguments page, I am told that oral argument is scheduled for June 21st. I do not know the hour.

The following Indiana Blakely cases, in reverse chronological order, have treated juvenile adjudications as prior convictions:

• Paschall (4/22/05)) (nothing but juvenile adjudications support enhanced sentence; without citation to any authority)
• Hill (4/14/05) (prior adult and juvenile criminal history supported enhanced sentence; without citation to any authority)
• McCray (3/10/05) (juvenile adjudication "acknowledged" in presentence report)
• Altes (3/1/05) (dictum that finding of likely future criminal conduct may be based on prior adult or juvenile criminal history; citation to Bledsoe)
• McNew (2/25/05) (prior convictions, including juvenile adjudication for possession of marijuana exempt from Blakely; citation to Carson)
• Abney (2/15/05) (juvenile adjudications are "prior convictions"; citation to Ryle)
• Williams (12/8/04) (prior convictions, including juvenile adjudication, support enhancement; without citation to authority)
• Holden (10/13/04) ("consistent adult and juvenile criminal history" not subject to Blakely; citation to Blakely)

Links to the cases are in the sidebar. I'll get to the probation cases presently.

Disclosure: I may be involved in the preparation for the oral argument on Ryle's side. Of course, that may just mean that I come up with better reasons that the fact of a juvenile adjudication should be treated no differently from the fact of a prior conviction. At the moment, I'm not convinced. My immediate reaction is, "What part of 'conviction' don't you understand?" It seems to me that in light of the remaining uncertainties surrounding Blakely, a certain literalist approach, often applied by Blakely's author, is not out of place.

Of course, since April 25th, we are now merely dealing with pipeline cases. The one remaining decision that will affect a very large number of cases indeed concerns Blakely's retroactivity to cases on collateral review. Smylieseems to say there is none. But the question wasn't presented; and the U.S.Supreme Court has yet to speak.

Holder: Transfer & More on Searches & Private Property?

After oral argument, the Supreme Court has granted the State's petition to transfer in Holder, a case I mentioned in this post, because it was published the same day as Litchfield, the Supreme Court's most recent trash case, and interesting in light of Litchfield. (Holder was originally NFP, and Holder moved to have the decision published, which the Court of Appeals did over the State's opposition. If the publication status of an opinion is one of the principal considerations in transfer decisions, it escapes me why Holder, who won in the Court of Appeals, would have asked for publication. I think I'd have wanted to fly as low and slow as possible. But maybe there were good reasons.)

The oral argument in the Supreme Court on April 28th may be viewed via this link (Real Player). As Justice Sullivan noted during the argument, the Court of Appeals merely decided the search issue under Article 1, § 11 of the Indiana Constitution. If the Supreme Court is now going to affirm the denial of suppression, it is also going to have to address the fourth amendment issues.

The argument is quite interesting and worth a listen. I think we are going to get more, after Litchfield, about searches under the Indiana Constitution and private property.

Not Blakely, but interesting.

Heath is Here: ZZZzzzzzz . . . .

Well, Heath made its appearance today. Perhaps the Five were talking about some difference between it and Smylie, and decided to treat them the same. If not, there doesn't appear to be anything on the face of the opinion that would have prevented it from being issued together with Smylie.

In short, Heath adds nothing, although it does reiterate the State's option on remand of trying the aggravating circumstances to a jury.

The opinion also says nothing about the common law crimes or double jeopardy problems that may arise when treating aggravating circumstances as elements. The three aggravating circumstances recited in the opinion are:

1) the crime was committed in the presence of a person less than 18-years-old; 2) there were many unarmed observers in extreme danger nearby; and 3) the circumstances represented the “[w]orst type of Class D Criminal Recklessness facts.”

None of these are statutory aggravators. Sooner or later the court is going to have to address whether use of non-statutory aggravators under the now-defunct sentencing regime amounts to the creation of common law crimes. Also, if these aggravators are now elements, Heath has already been convicted of the lesser offense that do not include these elements. Does the State get to go back and retry Heath for the now greater offense that includes these aggravators?

Perhaps Smylie and Heath implicitly decide these issues by remanding the cases for jury trials of the aggravators at the State's option. It seems to me that the issues are both presented by the cases, at least in the context of the court's actions in both, and important enough to warrant decision by discussion.

Florida on Retroactivity & Indiana on Notice: Some Juxtapositions

There have been two Blakely cases in Indiana today, but before I get to them (probably tomorrow), a decision from the Florida Supreme Court about Apprendi's retroactivity deserves some comment. The case is Hughes v. State (Fla. 4/28/05). (Thanks as always to Doug Berman at Sentencing Law & Policy in this post.) I only want to note for now the essence of the majority opinion's argument about why Apprendi should not be applied retroactively in Florida:

Apprendi affects only the procedure for enhancing the sentence. See United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.), cert. denied, 537 U.S. 939 (2002); see also State v. Tallard, 816 A.2d 977, 981 (N.H. 2003) (“Apprendi altered the procedure under which an enhanced sentence can be imposed. It did not affect the procedure for obtaining an accurate conviction on the underlying offense.”). Thus, Apprendi “does not rise to the level of importance of Winship.”

Slip op. at 14 (emphasis added).

To that passage, I now want to juxtapose a passage from the note in the March issue of the Harvard Law Review arguing for Blakely's full retroactivity:

It could be argued that Apprendi need not apply retroactively because it extends Winship's holding only to "sentencing factors" rather than to "elements" of the crime. But this argument forgets that Apprendi eliminates this distinction for constitutional purposes. Because due process requires that all "facts that expose a defendant to a punishment greater than that otherwise legally proscribed" must be proved beyond a reasonable doubt, it is difficult indeed to argue that punishments imposed in violation of Apprendi's requirement can stand. Because all of these sentences are shrouded by the constitutional doubt that attends a punishment imposed solely on the basis of a preponderance of the evidence, even the strongest interests in finality cannot justify continued imprisonment of these defendants.

Note, Rethinking Retroactivity, 118 Harv. L. Rev. 1642, 1659 (2005) (emphasis added) (footnote omitted).

I think the point is, after both Apprendi and Blakely, sentencing is no longer "just sentencing." The sixth amendment jury trial right may be "procedural"; the fourteenth amendment requirement of proof of the elements beyond a reasonable doubt is something else. (According to the note, by the way, Winship was the last case to be given full retroactivity by the U.S. Supreme Court. That was interesting news to me.)

As I read the Blakely cases here and there, the fourteenth amendment aspects are given little attention; and the issues arising under the Fourteenth Amendment are probably going to have to be dealt with in the second wave of appeals after the remands.

That's not to say that sixth amendment aspects that do get all the attention get the attention they deserve. Just today, one creative panel of the the Indiana Court of Appeals said:

Specifically, Huffman asserts that Blakely requires that he be provided notice of each specific aggravating factor the State intends to introduce.

. . . .

While this argument is creative, we are not persuaded. First, we do not read Blakely to require that a defendant be provided notice of every fact upon which the State may rely to seek an enhanced sentence.

Huffman v. State (Ind. Ct. App. May 2, 2005) (Judges Sullivan, Baily, and Mathias). Juxtapose this with the following snippet from Blakely:

Any evaluation of Apprendi's "fairness" to criminal defendants must compare it with the regime it replaced, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment . . .

(Emphasis added). And with this from Apprendi:

We there noted [in Jones v. United States (1999)] that "under 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." Id., at 243, n. 6. The Fourteenth Amendment commands the same answer in this case involving a state statute.

(Emphasis added). And, since some judges, including judges on the Indiana Court of Appeals, have been looking to Booker to provide the "context" for Blakely, add this passage from Justice Breyer's remedial opinion:

The Court's constitutional jury trial requirement, however, if patched onto the present Sentencing Act, would move the system backwards in respect both to tried and to plea-bargained cases. In respect to tried cases, it would effectively deprive the judge of the ability to use post-verdict-acquired real-conduct information; it would prohibit the judge from basing a sentence upon any conduct other than the conduct the prosecutor chose to charge; and it would put a defendant to a set of difficult strategic choices as to which prosecutorial claims he would contest.

(Emphasis added).

Yet another imaginative panel of the Court of Appeals had this to say in a footnote (which is the first time an Indiana appellate court has sidled up to the issue of aggravating circumstances as elements and deserves more comment in a separate post):

The concern has been raised that Blakely’s reasoning may eventually require judges to adhere strictly to specifically enumerated aggravating circumstances as provided by statute and prohibit the use of judicially-created aggravating circumstances, on the basis that recognition of an aggravating circumstance after the commission of a crime would violate due process notice guarantees. Blakely itself, however, did not address due process concerns and we decline to read into a prohibition against any use of judicially-created aggravating circumstances.

Young v. State (Ind. Ct. App. May 2, 2005) (Judges Barnes, May, and Darden). Juxtapose the snippets from Booker, Blakley, and Apprendi above.

Note also that Judge Barnes, who wrote Young, was also one of the two Indiana appellate judges to say Booker had "clarified" and "limited" Blakely. See Edwards v. State (Ind. Ct. App. 2/28/05) (Barnes, J., dissenting). Yet in this opinion, right or wrong about the very important result relegated to a footnote, Judge Barnes goes no farther afield than Blakely. (I think even in Blakely relevant "due process concerns" can certainly be found in at least the following: "If there is any difference between bargaining over sentencing factors and bargaining over elements, the latter probably favors the defendant. Every new element that a prosecutor can threaten to charge is also an element that a defendant can threaten to contest at trial and make the prosecutor prove beyond a reasonable doubt." (Emphasis added).)

As I said to Judge Wood in my only oral argument in the Seventh Circuit (and my only oral argument ever): "Your Honor, I'm not making this up."

More on Misunderstanding Booker by the States

Recall in this post that I suggested (or more than) that in Gomez, the Tennessee Supreme Court had completely misunderstood Booker and that I attributed the misappropriation to a misreading of the following passage from Justice Stevens' majority opinion:

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.

The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.

I also noted that it seemed to me, judging from the oral arguments in Towne and Black, a majority of the California Supreme Court seemed to take this passage to mean that Blakely does not apply to California's sentencing regime of lower, middle, and upper terms.

Prodded by one of the lawyers involved in the Gomez rehearing, I have done a less than comprehensive hunt for other courts that have taken the the quoted passage from Booker as a basis to say that Blakely does not apply to a state sentencing regime. It looks like at least two districts of the California Court of Appeals have taken the wrong fork in the road, albeit in unpublished decisions, as well as one district of the Ohio Court of Appeals in a published decision.

The California cases are People v. Lopez, (Cal. App Dist. 2, Div. 6 March 29,2005) (mem.) and People v. Wright, (Cal. App. 5th Dist. Jan. 18, 2005) (mem.) (no link available). Lopez takes flight from the Booker passage as follows:

The upper term is not rendered an extraordinary sentence merely because the court must impose the middle term unless there are factors in aggravation. Although there is language in Blakely which, if taken out of context, would preclude the court from relying on any factor not found true by the jury, Blakely did not eliminate judicial discretion or judicial fact finding for the purpose of selecting a sentence within the permissible range.

It goes on to quote the Booker passage and take the entire range of lower, middle, and upper terms as "the permissible range," in its language.

Footnote 12 from Wright says the following:

Our conclusion finds support in the recent amplification of Apprendi - Blakely found in United States v. Booker (Jan 12, 2005, No. 04-104) 543 U.S. ___ [2005 WL 50108]. We distill from Booker the following refinement for our present purposes: If a fact necessarily results in a higher sentence, the fact must be admitted by defendant or found by the jury. Because California's sentencing law vests in the trial court discretion to choose the upper or middle term even where aggravating factors are found which preponderate, the present sentence is constitutionally permitted.

(Emphasis added).

There may be many more California cases of the same ilk. The California Court of Appeals' Blakely productions is prodigious--almost all of it, recently, unpublished, probably either in deference to or fear of the decisions to come in Towne and Black from the California Supreme Court.

The Ohio case is State v. Combs, 2005 Ohio 1923 (Oh. Ct. App 12th Dist. April 25, 2005). After quoting the Booker passage, the court adds this rather curious summarization: "The Supreme Court found that the Guidelines, when mandatory, violated Blakely because they permit a sentencing court, upon the postconviction finding of additional facts, to impose a sentence in excess of the statutory maximum authorized by the jury verdict. Booker, 125 S.Ct. at 751." The Guidelines "when mandatory . . . permit"?

Ohio sentencing appears to be a complicated affair, and perhaps I have gotten it wrong. But as I understand the opinion Combs does use the Booker passage to say that Blakely does not apply to Ohio sentencing.

So we have one state, Tennessee, derailed by Booker, and two others, California and Ohio, apparently set to run off the tracks. I'd say the Booker passage packs quite a punch, although, in my estimation, it's a low blow.

If anyone know of other states or other important decisions from these states that do the same thing, send word.