Pinkston: Ryle was wrong . . .

In a fascinating turn of events, one panel of the Court of Appeals appears to have gotten tired of waiting for the Indiana Supreme Court's transfer decision in Ryle. In Pinkston v. State, No. 49A02-0412-CR-1003 (Ind. Ct. App. 10/31/05), (Robb and Bailey, Friedlander dissenting), the court decides that juvenile adjudications are not prior convictions for Blakely purposes after all.

The docket shows that Pinkston was fully briefed on June 9th. The Supreme Court heard oral argument in Ryle on June 21st. So this panel--or two members of it--either got tired of waiting or decided to contribute to the debate.

The court does, in fact, contribute something new to the debate. In addition to relying on Tighe (9th Cir)and Brown (that case from the crazy, liberal Louisiana Supreme Court), the court brings up two Tennessee cases that eluded me back in June when everyone was Ryle'd up: State v. Chatman, No. 01-0494 (Tenn. Crim App. April 19, 2005) and a case it relies on: State v. Wallace, No. (Tenn. Crim. App. January 28, 2005). (Chatman was decided four days after the Tennessee Supreme Court said in Gomez, over the AG's concession, that Blakely does not apply to Tennessee sentencing. So why the Chatman court had to consider Blakely at all escapes me.)

While deciding an important issue, the court misses another obvious one as well. In imposing an enhanced sentence, the trial court relied on the statutory aggravator that a reduced or suspended sentence would depreciate the seriousness of the crime. Both the Indiana Supreme Court and Court of Appeals have repeatedly said that this particular aggravating circumstance may only be used to justify refusing to mitigate a sentence and may not be used to enhance one. Since nothing in the opinion suggests that the trial court was considering a mitigated sentence, this aggravator was invalid.

The court also makes a bollocks of the opinion in its "Standard of Review" section beginning on page 8. The court purports to review the appropriateness of Pinkston's sentence under Indiana Appellate Rule 7(B). But the error the court finds is constitutional, so the debate should only be about whether Blakely error is structural or subject to harmless error analysis.

Even if Blakely error is subject to harmless error analysis, the error in not submitting the juvenile adjudications to a jury was surely not harmless. There were only three aggravators: the juvenile adjudications, the reduced sentence etc., mentioned just above, and the judicial finding that Pinkston was "in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility." Given the invalidity of the first two aggravators, the third, which had to be "derivative" at least in part of the other two, has to be invalid as well.

Just a word about Judge Friedlander's dissent. He's one of the gang for whom the prior-conviction exception is the "criminal history" exception; and juvenile adjudications are criminal history. Judge Friedlander is surely right that it is not a foregone conclusion that the Supreme Court is going to decide Ryle differently from the way the Court of Appeals did.

In fact, there are really only two reasons--discounting sloth--that I can imagine Ryle is taking so long: either the court doesn't think the case is very important in light of the number of cases involved and the Bookerization of the sentencing statutes last April; or there is one hell of a disagreement among the justices--who almost never like to publicly disagree too much. (I cannot recall when last I saw a scathing dissent from an Indiana justice. There have certainly been enough cases to justify one.)

Pinkston is worth reading in its entirety also because it is the first published opinion, I think, in an appeal from a post-Blakely jury sentencing. There will be more. A fascinating tidbit, by the way, is that the State filed a notice of aggravating circumstances way back at the end of September 2004--almost 6 months before Smylie was decided, 3 weeks before the Court of Appeals said that Blakely was "superficially applicable" in Holden, and while the Indiana AG was swearing up and down, in briefs and public comments, that Blakely did not apply to Indiana sentencing.