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.