Washington State: Blakely applies to consecutive sentencing

Sentencing Law & Policy has this post about the Washington Supreme Court's decision yesterday in In re Personal Restraint of VanDelft, No. 77733-1 (Wash. Nov. 30, 2006). The short of it: because there is a statutory presumption in Washington that sentences are to be served concurrently, any factual finding used to justify consecutive sentences is subject to Blakely.

Doug Berman says that the case "may dovetail with some of the issues that were debated in Burton, the Blakely retroactivity case now awaiting a decision from the Supreme Court." I'd say more than "dovetail." In the Burton oral argument, Jeff Fisher spent a great deal of his time answering questions about consecutive sentencing in Washington. He fends off Justices Souter, Breyer, and Stevens on this issue in pages 4-9 of the transcript. And then he has to deal with Chief Justice Roberts' question beginning on page 9:

CHIEF JUSTICE ROBERTS: I'm not sure I understand that. I mean, we have not held, for example, that the fact of a prior conviction is something that has to be submitted to a jury under Blakely. Why, if you're determining that sentences run consecutively, isn't that just the same as looking at a simultaneous conviction and saying they're going to run consecutively?

MR. FISHER: Under some State systems that might be the case, Mr. Chief Justice. However, in Washington the way that the code works is that judges are directed that for multiple crimes the sentences shall run consecutively.

CHIEF JUSTICE ROBERTS: So you'd have --

MR. FISHER: Unless they make the exact kind of extra finding, and it refers them to the precise same statute that was at issue in Blakely itself.

CHIEF JUSTICE ROBERTS: And you're saying that that extra finding can't simply be that this is a conviction for a particular serious crime that's going to go unpunished otherwise?

MR. FISHER: That's right.

CHIEF JUSTICE ROBERTS: So under this system if you had a regime where if you're convicted of murder
and you've been convicted of rape before that, you get an enhanced sentence beyond the normal murder sentence, that would not contravene Blakely. But if you're convicted at the same time for rape and murder and those two sentences run consecutively, you say that that does violate Blakely.

MR. FISHER: If the judge needs to make an extra finding beyond the elements of either of those two
crimes to run them consecutively, then it would violate Blakely.

THE COURT: But we've never held that? We've never held that consecutive -- that the treatment of sentences as concurrent or consecutive is covered by Blakely?

MR. FISHER: You haven't had a case in the Apprendi-Blakely line of cases dealing with consecutive sentences. But what you've done is laid down a rule from the very State that we're dealing with here that says that if the judge needs to make an extra finding beyond the elements of the crime for conviction and beyond the facts encompassed in the jury's finding of guilt for those crimes, then those findings need to be proved to a jury beyond a reasonable doubt. That's why in this case that line, that rule, is triggered.

At page 35, the State argues:

MR. COLLINS: So I just briefly want to go, Justice Souter, to where you started about the consecutive sentence issue. We believe that consecutive sentence is quite different than, from what exists in Blakely and that, in fact, there aren't really additional findings of fact.

Whatever other problems Burton may have--and there are a number--Van Delft directly resolves this particular dispute. (Fisher was correct; and there really should not have been much of a dispute about this. It is a pity that so much argument time was spent on it.)

Of course, the Indiana Supreme Court in Smylie already has held that Blakely does not apply to Indiana's pre-fix consecutive sentencing provisions. Because there was a judicially imposed requirement that consecutive sentences be supported by an aggravating circumstance, I was not sure why. I am even less sure now.

I still think that Burton, despite its problems, is going to be a blockbuster. Why else grant cert in an unpublished 9th Circuit case that affirms the denial of habeas relief? And whatever the result, you have to love Fisher's strategy: Blakely was compelled by Apprendi--indeed, it was no different. You don't like that? O.K., Blakely was so new and fundamental that it should be applied retroactively, not just back to Apprendi, but to the beginning of time.

More about Post-Conviction Rule 2: When Plain Language Means Its Opposite

In the previous post, I pointed out that Post-Conviction Rule 2, § 1, which governs belated appeals, cannot be the proper vehicle for filing a belated appeal of a sentence. By its language, the rule only applies to belated appeals of convictions:

Where an eligible defendant convicted after a trial or plea of guilty fails to file a timely notice of appeal, a petition for permission to file a belated notice of appeal for appeal of the conviction may be filed with the trial court, where . . .

.The Indiana Supreme Court said otherwise in Gutermuth, of course.

A clever reader and cleverer lawyer pointed out to me that there is another problem with the rule. The rule does permit belated appeals of convictions after a guilty plea. That would seem to imply that an appeal of a conviction resulting from a guilty plea is possible.

Except that it isn't:

In Tumulty [v. State, 666 N.E.2d 394 (Ind. 1996)], we held that once judgment is entered, a defendant may not subsequently challenge his guilty plea on direct appeal. Id. at 395-96. The correct avenue for such claims is post-conviction relief. Id. at 396.

Brightman v. State (Ind. 11/15/01).

So with Gutermuth, the Supreme Court permitted what the rule forbids; and with Tumulty, the court forbade what the rule permits.

I take no position about what the rule in either instance should be. But I am not sure why the plain language of the Supreme Court's own rules need to contradict what the Supreme Court says the law is. Gutermuth is 2 years old; Tumulty 10. It cannot be that hard for the court ot amend its own rules.

Maybe I am missing something, and I invite comments.

Baysinger: Another Blakely Pop-Up Belated Appeal

The Court of Appeals has decided another Blakely belated appeal: Baysinger v. State, Court of Appeals No. 01A02-0512-CR-1178 (Ind. Ct. App. October 13, 2006). Judge Vaidik wrote an opinion concurring in the judgment. It sets out the problem of Blakely and belated appeals very nicely. I disaree with the result she would reach, but there's something to disagree about.

I call it a "Blakely pop-up" appeal, because Baysinger's conviction and sentence were "final" in 2001, after Baysinger failed to file a direct appeal. Then in March 2005, Baysinger requested permission to file a belated appeal. So, When Blakely was decided in June 2004, Baysinger's case was, arguably, both final and not pending on direct review.

The majority opinion in Baysinger goes through some (now-familiar) tortured analysis of provisions in the post-conviction rules to conclude that Baysinger's case was not final when Blakely was handed down. That's because he had not exhausted the possibility of requesting a belated appeal.

That doesn't seem right to me. On that theory, almost no case that was not appealed originally would ever be final. It would be simpler and, more correct, I think, simply to say that a direct appeal is a direct appeal. And we apply the law as it exists at the time we decide a direct appeal.

I have read Griffith v. Kentucky again. Several times, actually. And it is pretty clear from the opinion and from Justice Rehnquist's dissent, that Griffith just does not quite cover the case. Griffith had in mind the situation when a case is literally either pending on direct review or not final at the time a new case is announced.

Additionally, the post-conviction rules really don't cover a belated appeals of sentences. Post-Conviction Rule 2, § 1, provides for "a petition for permission to file a belated notice of appeal for appeal of the conviction." And it's well-established that there are no belated appeals from the denial of post-conviction relief, because they are not appeals "of the conviction." Compare what these two cases say in light of the language in the rule:

Gutermuth v. State (Ind. 11/9/04):

We hold that the proper procedure for an individual who has pled guilty in an open plea to challenge the sentence imposed is to file a direct appeal or, if the time for filing a direct appeal has run, to file an appeal under P-C. R. 2.

Davis v. State (Ind. 7/19/02):

We have held more than once that P-C.R. 2(1) is a “vehicle for belated direct appeals alone.” See, e.g., Greer v. State, 685 N.E.2d 700, 702 (Ind. 1997) (quoting Howard v. State, 653 N.E.2d 1389, 1390 (Ind. 1995)). It provides petitioners with a method to seek permission for belated consideration of appeals addressing conviction, but does not permit belated consideration of appeals of other post-judgment petitions. Howard, 653 N.E.2d at 1390.

Of course, the Indiana Supreme Court had to do something about the many cases in which trial courts had misinformed people that by pleading guilty, they were waiving their right to appeal anything. (See this post about the "Blakely Wayback Machine" from last June when Gutermuth and Collins came down.) It's just interesting what vehicle the court chose: a rule, the language of which specifically forbids the remedy the court provides.

Would it not have been easier simply to say that the Indiana Constitution provides a right to an appeal in all criminal cases? Then, when a trial court misinforms someone that they are waiving they're right to appeal, there has been no voluntary, knowing, or intelligent waiver of the right to appeal a sentence. Therefore, where that has happened, a person is entitled to post-conviction relief under the normal post-conviction procedures. The remedy is an appeal, much as the remedy when appellate counsel has been ineffective is a new appeal--even if there is no mechanism that I am aware of by which an Indiana post-conviction court can order a new appeal.

Of course, I think Blakely should get full retroactivity either universally under Teague, or in Indiana, for reasons peculiar to Indiana sentencing before the regime change in April 2005. So what's going on with all these belated appeals and Griffith retroactivity is merely the entree, as it were.

That's the procedural stuff. The substantive analysis in Baysinger I find both familiarly and freshly bewildering. Setting aside the four aggravators offensive to Blakely, the opinion concludes that the single remaining aggravating circumstance, Baysinger's criminal history, saves the enhancement to 65 years. This is how they do it:

[A] Blakely analysis, as to any other aggravators, is not necessary as we can say with confidence that the trial court would have imposed the same sentence had it considered only Baysinger’s prior criminal history as an aggravator in this case. See Witmer v. State, 800 N.E.2d 571, 572-73 (Ind. 2003) (“Where a trial court has used an erroneous aggravator, as occurred here, the court on appeal can nevertheless affirm the sentence if it can say with confidence that the same sentence is appropriate.”) (citing Day v. State, 560 N.E.2d 641, 643 (Ind. 1990)).

So much for Chapman harmless-error analysis for constitutional errors. As Justice Kennedy said during the Cunningham oral argument in a different context: "Well, it is the same old record we've been playing."

I forgot to mention: Baysinger's criminal history consisted of a single misdemeanor conviction for possession of marijuana. Harmless error aside, the Court of Appeals justifies the maximum sentence based on this misdemeanor conviction because: 1) it occurred only six months before the murder; and 2) the murder occurred during a drug-related dispute.

So the Court of Appeals can say with confidence that the trial court would have imposed the same maximum murder sentence had it considered only this single aggravating circumstance together with the two mitigating circumstances it found? Maybe.

But one of the mitigating circumstances was that Baysinger had only one prior conviction. The same one, it turns out, that justifies the maximum sentence for murder.

Note: I, like the rest of the world, am trying out posting from the new Google Docs. I guess we'll see if there's a lot of editing after posting. Apologies ahead of time to anyone who gets the posts by RSS, if you get the feed, and it looks awful. So here goes . . .

Salazaar v. State: A Feat of Memory Leads to a Wrinkle on Belated Appeals.

There has been a spate of belated appeals cases in the published and unpublished decisions over the last few weeks. Eight published decisions by my count since July 25th.

One came down yesterday with an interesting practice pointer in it for those who labor in the land of Indiana's Post-Conviction Rules, which govern belated appeals. At least it contains a tidbit that I did not know about. The case was Salazaar v. State, Court of Appeals No. 79A02-0502-PC-130 (Ind. Ct. App. October 10, 2006).

For some reason, requests for permission to file a belated appeal are run by Post-Conviction Rule 2. (I guess the reason is that the Indiana Supreme Court has set it up that way.) Normally, in post-conviction proceedings under Post-Conviction Rule 1, one has to enter the trial record as evidence. According to Salazaar, "Due to the very nature of a Post-Conviction Rule 2 hearing, and unlike a petition for post-conviction relief under Post-Conviction Rule 1, the entire record of the original trial is automatically before the trial court in a Post-Conviction Rule 2 proceeding. Henry v. State, 170 Ind.App. 463, 466, 353 N.E.2d 482, 484 n.2 (1976)." Slip op. at 9.

There's no reasoning about this to speak of--just the citation to a footnote in Henry. I've looked at Henry. Just the footnote with the proposition. No reasoning. And, with a half-hearted search, I have not been able to find the proposition anywhere else. (Please comment, if you know of other cases.)

But guess what. Judge Sullivan wrote Salazaar; and Judge Sullivan was on the panel that decided Henry. It looks a bit as though Judge Sullivan has had that Henry footnote tucked away for 30 years--and from an opinion he did not even write.

Amazing.

United States v. Resendiz-Ponce: Trial on a Bus?

Thanks SCOTUSBlog for putting up the link to the oral argument transcript in United States v. Resendiz-Ponce.

Only Justices Scalia and Souter seemed to get it. In Justice Souter's words, "When is an indictment not an indictment?" When it leaves out an element of the offense, perhaps?

This case involves attempt to re-enter the U.S. case. But the federal indictment did not allege what the substantial step was that constituted the attempt. (The Ninth Circuit seems to have discussed the matter in terms of "overt acts," which is conspiracy, and not attempt, language. Was it driving to the border? Was it presenting false identification? Was it having breakfast?

The government's position was pretty simple: the guy was convicted by a petit jury, properly instructed about all the elements. Any deficiency in the indictment was harmless and ought to be treated as such. This, even though Resendiz-Ponce objected to and moved to quash the indictment, which motion the district court denied.

If federal law requires that an indictment allege an attempt's substantial step with specificity--and Justice Breyer said he had read up on the subject and was not sure--then no substantial step in the indictment, it seems to me, means no indictment. If there's no indictment, how can that absence be subject to harmless error analysis in light of the Fifth Amendment's indictment requirement?

The government argued that there are 70-80,000 indictments a year; prosecutors do get indictments wrong; we should count on district court judges to get it right; and even when they don't, it doesn't matter so long as a conviction results. The government's position--which I would find laughable, if a number of justices had not seemed to take it seriously--is that later conviction by a properly instructed petit jury will always make the omission of an element in an indictment harmless.

But let's just say that there are six possible acts that could have been proved the substantial step in this case. Is it too much to ask that the goverment go get a superceding indictment that alleges at least one, and maybe all six, of the acts? It could have done it in this case, before a trial. If later, at trial, the government proves a seventh act instead of one of the six, at least harmlessness can by analyzed in terms of prejudice caused by the degree of variance from the indictment.

If the government wins this one, the Fifth Amendment's indictment requirement will have been relegated doctrinally to irrelevance, it seems to me. I'm not saying that it's not almost irrelevant, practically speaking, now.

Maybe the Supreme Court will punt this one. See SCOTUSBlog's procedural analysis of the argument here, which I read as suggesting a deep drop and a kick.

On the third hand, if the government loses on the merits, the decision could, arguably, have a big Blakely effect. Aggravating circumstances are now elements. The reason a loss on the merits by Uncle Sam might not have much Blakely bang at all is that the decision would be grounded in the Fifth Amendment's indictment requirement.

Indiana does not have an indictment requirement. The law is clear, though, that a charging information has to allege the specific substantial step that was taken in an attempt. This is really no different from the requirement that a burglary charge allege the specific felony the burglar had the intent to commit when breaking in, e.g., theft.

But Indiana has it's own areas of movement toward trial on a bus. There's Lee v. State, which I have included in the sidebar as a Blatant Indecency. In Lee, the Indiana Supreme Court said that one cannot complain of a plainly illegal sentence, if one benefitted in a plea bargain of which the illegal sentence was a part. It is very hard to square that with the legion cases that say judges only have the power to impose sentences authorized by statute and that illegal sentences constitute fundamental error that may be raised for the first time on appeal. And Lee, a 1994 case, continues to have legs. An illegal sentence was affirmed on the strength of Lee just the other day in Borders v. State, Court of Appeals No. 79A02-0603-CR-180 (Ind. Ct. App. September 29, 2006).

And then there is a much older case, Floyd v. State, 650 N.E.2d 28 (Ind. 1994), which is really seven cases rolled into one. The upshot of Floyd is that anyone is a judge, so long as everyone agrees that she is. (Hard to square Floyd's upshot with its opening shot: "The Indiana Constitution requires that judicial acts be performed only by judges. Ind. Const. art. 7, § 1. Thus, only a duly elected or appointed judge of the court or a duly appointed judge pro tempore or special judge may enter an appealable final judgment, including a criminal sentence. When a court official who is not a duly elected or appointed judge of the court purports to make a final order or judgment, that decision is a nullity.")

Trials on a bus cost the administrative state very little; and the administrators are winning. I guess we'll see if they win Resendiz-Ponce.

Cunningham coming up.

From the Land of the NFP: Sanders v. State

The flood of NFP decisions now available for public viewing has provided some very interesting stuff. There are many cases that when I look at them, I wonder why they are NFP. But in this post, I want to take on a case that is definitely small potatoes and deservedly NFP. It's an astonishing collection of spuds nonetheless.

The case is Sanders v. State, Court of Appeals No. 10A01-0512-CR-585 (Ind. Ct. App. October 4, 2006) (mem.). Sanders was not very well-behaved at various points during his trial, so the trial court excluded him from closing arguments and from the habitual substance offender phase. Sanders claimed on appeal that he had been denied his Sixth Amendment right to be present at all critical stages as well as his similar right under Article 1, § 13(a), of the Indiana Constitution.

Sanders forfeited / waived his right to be present at those times, the opinion says, by his behavior. Fine. End of issue.

Except, unnecessarily, the opinion goes on:

Moreover, even if we were to agree with Sanders, a denial of the right to be present during all critical stages of the proceedings under the Sixth Amendment is a constitutional right that is subject to a harmless error analysis. Hernandez v. State, 761 N.E.2d 845, 853 (Ind. 2002), reh’g denied. Further, under the Due Process Clause, "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Hubbell v. State, 754 N.E.2d 884, 895 (Ind. 2001). Lastly, a violation of Article I, Section 13 of the Indiana Constitution is subject to a harmless error analysis. Debro v. State, 821 N.E.2d 367, 375 (Ind. 2005). Sanders has not shown, or attempted to show, how he was harmed by his absence or how his presence would have contributed to the fairness of the procedure. Any error in the trial court’s exclusion of Sanders from the courtroom was harmless. See, e.g., Ridley, 690 N.E.2d at 180-181 (holding that the defendant failed to show how the proceedings were critical to the outcome of the trial or how his presence would have contributed to the fairness of the procedure).

Slip op. at 5. This apparently unobjectionable paragraph of superfluous legal analysis is, in fact, practically a perfect storm of errors. First, the opening proposition supposedly ripped from Hernandez is not complete. What Hernandez actually says is: "[T]he United States Supreme Court has held that denial of this constitutional right is 'subject to a harmless error analysis unless the deprivation, by its very nature, cannot be harmless.' Rushen v. Spain, 464 U.S. 114, 117-18 n.2 (1983) [(per curiam)] (citations omitted)." (Emphasis added).

So, contrary to the Sanders opinion and according to the case it cites, a critical-stage error is subject to harmless error analysis--except when it's not. And there is no explanation in Sanders about why exclusion during closing arguments and the subsequent habitual substance offender phase does not qualify for the alternative treatment as structural error.

But why is Hernandez being cited at all? Hernandez was a right-to-counsel case, not a right-to-be-present case. The two are related, but not the same. As in Hernandez, the right-to-counsel cases usually talk about the need for a lawyer when confronted with legal intricacies. And Sanders's lawyer was always present. The right-to-be-present cases are vaguer . . . see the next paragraph.

The next proposition is similarly incomplete. The citation to Hubbell is correct--Hubbell actually says what Sanders says it does. ("In sum, 'a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.' Kentucky v. Stincer, 482 U.S. 730, 745 (1987).".) But here is part of Hubbell that Sanders leaves out: "Although Hubbell has the right to be present at significant stages of the criminal proceedings, he has not established that any hearings he missed, including the one on July 14, 1999, were of critical importance to implicate the Confrontation Clause."

It is not hard to guess why Sanders leaves that out: it is hard to imagine how exclusion from the habitual substance offender phase did not "implicate the Confrontation Clause," in the words of Hubbell. And it's similarly not hard to guess why Stephenson v. State, a 2001 Indiana Supreme Court case, wasn't the citation of choice here in Sanders, even though Stephenson is really the case on point:

First, Defendant claims his Sixth Amendment right to be present in the courtroom at every stage of his trial was violated. This right is rooted in the Confrontation Clause. Ridley, 690 N.E.2d at 180 (citing Illinois v. Allen, 397 U.S. 337 (1970)). A Confrontation Clause violation occurs when witnesses or hearsay evidence are presented in the defendant’s absence that affect the defendant’s opportunity for cross-examination. See Kentucky v. Stincer, 482 U.S. 730, 737-38 (1987).

With respect to the proposition regarding Article 1, §13 of the Indiana Constituion and harmless error, the citation to Debro is stunning for a couple of reasons. First, to the extent that Debro involved Article 1, § 13(a), at all, it involved the state Confrontation Clause, which is quite different from the Sixth Amendment's, providing for the right "to meet the witnesses face to face." It did not involve the provision of Article 1, § 13(a), that provides for the right of a defendant "to be heard by himself and by counsel." Debro was about hearsay testimony admitted over objection while both Debro and his lawyer were present.

Second, Justice Rucker's Debro opinion makes no mention at all of Article 1, § 13, and harmless error analysis in any context. The opinion specifically declines to decide anything under Article 1, § 13: "We need not determine today whether our state constitution affords a defendant a right of confrontation in a sentencing hearing." (In fact, citing Chapman, Debro decided that the federal Confrontation Clause violation found was harmless because there was "sufficient other evidence.of probative value." Now there's Chapman harmless error analysis for you.)

Back to the final bits of the Sanders paragraph: "Sanders has not shown, or attempted to show, how he was harmed by his absence or how his presence would have contributed to the fairness of the procedure." The first half of this has Chapman harmless error analysis backwards, as did Hernandez. If there was federal constitutional error in Sanders being excluded then, at best, from the State's perspective, the State had to show beyond a reasonable doubt that Sanders's absence did not contribute to the outcome of the habitual substance offender phase. And my guess is that complete exclusion, if error, is structural error. I have not done the research on that, though.

That Sanders failed to show "how his presence would have contributed to the fairness of the procedure" does not indicate that the error in excluding him was harmless. It indicates that there was no error because the moment was not a critical stage.

And lastly: "Any error in the trial court’s exclusion of Sanders from the courtroom was harmless. See, e.g., Ridley, 690 N.E.2d at 180-181 (holding that the defendant failed to show how the proceedings were critical to the outcome of the trial or how his presence would have contributed to the fairness of the procedure)." This is the same problem. The parenthetical proposition from Ridley says nothing about harmlessness. Indeed Ridley, in the passage cited for the reasons mentioned, concluded that Ridley's absence had not occurred during a critical stage.

O.K. There is a reason that some cases are NFP. But so much of this stuff ought to be boilerplate. It ought to be correct boilerplate. And really--NFP or not--how much can go awry in a single, unnecessary, paragraph?

Burton: How Are They Even Going to Get to Blakely's Retroactivity?

Wow. I don't want to turn this into the Burton blog, but there's so much to read and say. To give credit to the blog chain: Sentencing Law & Policy led me to Crime & Consequences. From there I landed at the Burton brief collection here, courtesy of the Criminal Justice Legal Foundation. That's what blogs are about: movement like an orangutan through the tops of trees in the rain forest.

I almost took Doug Berman's post at SL&P as a personal invitation:

But if retroactivity issues are more your cup of Blakely tea — an issue soon to come before the Court in Burton — a lot of exciting reading is now available.

(And what about the application of Blakely to consecutive sentences, which is also presented by Burton?)

I have not thoroughly digested the State's (Respondent's) brief; but it does begin with the threshhold question of whether Burton's habeas petition was successive and therefore barred without express permission from the Ninth Circuit to file it. Here's what Crime & Consequences has to say about the question:

There is a huge jurisdictional question that the Ninth Circuit just blew by. If the Supreme Court actually affirmed that holding, it would be more important than the question they actually took this case to decide.

But I think I have stumbled upon a solution to the problem that someone cleverer than I in Washington figured out at cert. time. The solution was suggested to me by the State's brief and its reliance on Slack v. McDaniel. Which sent me to 28 U.S.C. 2844(b) and eventually landed me in a fascinating death-penalty habeas case out of Indiana: Lambert v. Davis. Judge Ripple dissented from the conclusion that Lambert's petition was "successive." And I think that SCOTUS is going to repeat, in essence, Judge Ripple's Lambert dissent.

The gist of that dissent arises out of Slack, which points out that "second or successive petition" in 2244(b) is a term of art about which Congress knew in passing the AEDPA. It does not mean what it literally says, but incorporates the Court's prior "abuse of the writ" jurisprudence. Burton did not file repetitive habeas petitions; he merely split the baby between convictions and sentencing, because that's how his case fell out in the state courts. So, I expect SCOTUS is going to say at least that the district court had the discretion not to treat the petition challenging Burton's sentence as a "second or successive petition."

The discretion part has to be there because of language in the plurality opinion in Rose v. Lundy, which says that a petitioner who has filed a mixed petition with exhausted and unexhausted claims, and who decides to proceed with the unexhausted claims only, "risks" having dismissed as a successive petition a later petition that includes the formerly-unexhausted claims. (The site I occasionally use to test the readability of posts is going to go nuts with that sentence.) Rose, a 1982 case, was pre-AEDPA. But that is of no matter if the AEDPA language "second or successive petition" in 2244(b) merely incoporporated pre-AEDPA case law.

I personally find this whole approach hard to square with 2244(b)'s unambiguous language. But the language is only unambiguous, I guess, if you don't consider "second or successive petition" a term of art--which Slack says it is.

Which leads to an interesting twist. In Slack, Justices Scalia and Thomas dissented. Justice Scalia's dissenting opinion would lead one to think that neither Justice Thomas nor he would be sympathetic to Burton's having attacked first his conviction and then his sentence in successive petitions. At the same time, if Burton is going to receive any Blakely relief, one would have to suppose that both Justices Scalia and Thomas will be among those voting for that relief. How does that work?

I don't know if Burton is a horrible vehicle to decide the Blakely questions involved. It certainly presents a number of labyrinthine complications. But that's habeas: both divine and hellish.

Rehearing en banc in Lambert was denied in August. Maybe my sense of timing is off, but my guess is that Lambert's inevitable cert. petition is going to result in a GVR in light of Burton. Or nothing, if it turns out that Burton's a dud. (But how could that happen?)

Oy, my brain hurts. Time to watch baseball.

The Sunday Pickle

The Rules of Evidence

What you want to say most
is inadmissible.
Say it anyway.
Say it again.
What they tell you is irrelevant
can't be denied and will
eventually be heard.
Every question
is a leading question.
Ask it anyway, then expect
what you won't get.
There is no such thing
as the original
so you'll have to make do
with a reasonable facsimile.

The history of the world
is hearsay. Hear it.
The whole truth
is unspeakable
and nothing but the truth
is a lie.
I swear this.
My oath is a kiss.
I swear
by everything
incredible.

-Lee Robinson

From the Writer's Almanac for Saturday, Septmber 25, 2006.

Chestnut v. State (NFP): More on the Argument Not Made

I have mentioned in a few places now that the there is an argument going unmade in Indiana's Blakely cases. Another case with the argument apparently unmade appears among today's NFP's: Chestnut v. State, Court of Appeals No. 14A05-0510-CR-587 (Ind. Ct. App. September 28, 2006) (mem.)

It's a child molesting case in which Chestnut pled guilty to molesting his granddaughter. The trial court improperly used the new "advisory" sentencing scheme, which is not subject to Blakely, but the Court of Appeals said that it did not matter. The only aggravator found by the trial court was that Chestnut's victim had been his granddaughter. But at the sentencing hearing, Chestnut admitted that the girl was his granddaughter; and that took care of any Blakely problem.

Well, not any Blakely problem, I think. That the victim was the defendant's granddaughter was not a statutory aggravator under the old sentencing regime. Aggravators are, after Apprendi, Blakely, and Recuenco, to be treated as traditional elements. So to use a non-statutory aggravator to enhance a sentence amounts to the creation of a common law crime. Common law crimes have been abolished in Indiana by statute. And a long time ago. {See these prior posts on this subject: here, here, here, and here.)

The argument, had it been made, would probably would not have affected this case. Chestnut received the "advisory" sentence, which is the same as the old "presumptive" sentence. And it would seem that the trend is to assume that presumptive sentences are immune to Blakely challenges. Just the day before yesterday, the Indiana Supreme Court reduced to the presumptive a sentence apparently offensive to Blakely. Hunter v. State, Supreme Court No. 52S02-0604-CR-153 (Ind. September 26, 2006).

Although I more than questioned this assumption in this post from the early Blakely wars, I have become a believer. I have become a believer chiefly because under the old sentencing regime, a judge did not have to give any reasons for imposing a presumptive sentence. So ex ante, one knows that one can receive the presumptive sentence for no reason at all. That would seem to take care of Blakely's 14th Amendment notice aspect.

As I read those prior posts on the use of non-statutory aggravators after Blakely, I was struck by something I said in the post about Heath back in May 2005: 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." But as I mentioned in this post about Johnson from Colorado a couple of weeks ago, the only breath about non-statutory aggravators in any court that I am aware of was exhaled during a brief question by Justice Sullivan during the Smylie oral argument. (See beginning at 23:30 into the argument.)

Two Supreme Court Oral Arguments Tomorrow Morning

The Indiana Supreme Court has two oral arguments scheduled for tomorrow morning (September 19th).

At 9:00, there's Snow v. England. Here is the summary provided by the court:

During a divorce proceeding, a child's guardian agreed to a financial obligation with respect to the child. After that party later resigned as the child's guardian, the Bartholomew Superior Court modified the divorce decree to eliminate this financial obligation. The Court of Appeals affirmed. Snow v. England, 03A05-0602-CV-56 (Ind. Ct. App. June 21, 2006) (unpublished), vacated. The Supreme Court has granted a petition to transfer the case, thus vacating the decision of the Court of Appeals, and has assumed jurisdiction over the appeal.

The unpublished Court of Appeals opinion is unavailable online--it was issued in June, before the NFP's began appearing for the world to see (easily).

At 9:45, the court is hearing a direct appeal in an LWOP case: Rohr v. State. Here's the court's summary:

Rohr was convicted of the Battery Resulting in the Death of a Minor in the death of S.M., a five-year-old child. A jury sentenced Rohr to life imprisonment without the possibility of parole. Rohr appeals his conviction and sentence to the Indiana Supreme Court pursuant to Indiana Appellate Rule 4(A)(1)(a).

(I think it would be helpful if the court would put at least some summary of the issues presented in their summaries. Perhaps it sometimes does.)

The links, once they become live, will be on this page.

The Sunday Pickle

The Spirit of Pigcinnati

From along my travels.

Tech Saturday a Little Early: Media Player Classic (NOT MS)

I'm going to be gone for the next few days. Back to the east to celebrate my grandmother's 99th birthday. I should be back in time for a Sunday Pickle, though.

In the meantime, I recently came across a completely portable little player that works as a great substitute for the bloated RealPlayer "required" to watch Indiana appellate oral arguments: Media Player Classic. It's a single executable file, no installation required, and it doesn't write home to mother. Just pop it into Program Files or wherever and run it. (I have it on my USB stick.) You can download it here at SourceForge. The file is about 5 megabytes.

To watch the oral arguments--or anything else--simply drag the link to the argument onto the player's screen. It will open in a trice. (Another little Windows trick I picked up recently was how to drag links to applications: just drag anything to the target application location on the taskbar and in a second the application will pop up on the screen permitting you to then dump the link into it. No messing or fussing with trying to keep a screen on top or visible. Maybe the world has always known about this trick, but it was amazing news to me.)

MediaPlayer Classic also has a primitive, but effective favorites list--and when saving a favorite, such as an oral argument, you can also save to a particular place so that the broadcast will open to that spot.

The SourceForge blurb says that RealPlayer has to be installed for Media Player Classic to be able to play RealPlayer files. I haven't uninstalled RealPlayer yet, so I don't know about that.

Here's the link to the page with the most recent Indiana oral arguments with active links. Pick an argument and try it out.

Otis Freshwater v. State: Clean-up Time for the Indiana Supreme Court

Every so often the Indiana Supreme Court cleans up a mess. There are many such messes and golly-gosh I wish they would do this more often. I think they got around to it in this case, because it involves an habitual offender enhancement and is therefore a more serious case in at least that one sense. One would think that the fact of a mess would be serious enough to take whatever comes along.

My candidate for the No. 1 mess that needs cleaning up is the outrageous practice by both the Supreme Court and the Court of Appeals of reversing convictions and then ordering the entry of lesser included offenses that were not charged and for which neither party requested an instruction.

What the Supreme Court cleaned up in Freshwater v. State, Supreme Court No. 27S02-0606-CR-240 (Ind. September 13, 2006) is a corner of the law of burglary. There is not much disagreement that to commit burglary, one must break in with the intent to commit a specific felony, e.g., theft. But there are a number of cases from the Court of Appeals that say one can infer the intent to commit a felony actually from the manner of breaking in itself or from other, otherwise negligble circumstances.

Justice Sullivan's Freshwater opinion today does those cases in:

There is language in several opinions of the Court of Appeals to the effect that a lesser quantum of evidence than that demanded by Justice and Gebhart will satisfy the intent to commit a felony element in a burglary case. For example, in Gray v. State, the Court of Appeals said that "[t]he intent to commit a felony can be inferred from the time, force, and manner of entry if there is no evidence that the entry was made with some lawful intent." 797 N.E.2d 333, 336 (Ind. Ct. App. 2003). Gentry v. State has similar language. 835 N.E.2d 569, 573 (Ind. Ct. App. 2005). As should be clear from the foregoing discussion, this is not a correct statement of the law. Justice and Gebhart dictate that in order to sustain a burglary charge, the State must prove a specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony.

Slip op. at 5. (Footnote omitted). The Supreme Court doesn't often get much harsher with the Court of Appeals than "this is not a correct statement of the law."

So we know that Gray's and Gentry's convictions were affirmed based on misstatements of the law. (Gentry was an habitual offender case as well--Gentry got an extra 20 years for the HO enhancement of his now-suspect burglary conviction.) How many others are there, I wonder. And can Gray, Gentry, and any others use Freshwater as the basis for post-conviction or habeas relief?

In one respect, this case is not very different from Wright v. State, 658 N.E.2d 563 (Ind. 1995) (no link; too old), which cleaned up the truly awful mess that had developed over the years with respect to when instructions on lesser included offenses should be given. As in Wright, the Supreme Court is merely saying what the law has always been, killing the cats, as it were, that have gotten away. So I'd say Gray, Gentry, and any others have a pretty good post-conviction beef.

In another respect, Freshwater is different from Wright: Freshwater does not come close to Wright in the number of cases explicitly overruled or disapproved. Wright still holds the record, I believe: the court overruled 16 of its own cases and disapproved 6 Court of Appeals opinions. Wright also might be the most-cited case since 1995 at 75 Indiana cases. Lesser included offense instructions come up all the time.

I do have a small question: Had it occurred to no one that to say the intent to commit a felony may be inferred from the absence of evidence that a lawful intent accompanied the breaking-in is a facial Sandstrom error--shifting the burden of proof to defendants with respect to an element?

But bully for the Indiana Supreme Court. Chapeau. More, please.

_________________________________


Since writing the above, I have discovered that the offensive language in Gray and Gentry, "no evidence that the entry was made with some lawful intent" appears in 14 cases going back to Perdue v. State, 398 N.E.2d 1290, 1293 (Ind. Ct. App. 1979). Five are Indiana Supreme Court cases.

So Freshwater is not so far behind Wright, if you count the cases Freshwater impliedly overrules or disapproves. (Of course, I have no clue whether Wright impliedly did in another batch of cases unmentioned in the opinion.)

Perdue from the Court of Appeals, by the way, is not the original offender. Perdue relies on a 1975 Supreme Court case, Lisenko v. State, 355 N.E.2d 841 (Ind. 1976). Lisenko, interestingly, overruled Crawford v. State, 241 N.E.2d 795 (Ind. 1968), which reversed a burglary conviction for just about the same reason as Freshwater. So with Freshwater, the circle has come back around to Crawford.

I was, then, certainly wrong above about the other difference between Wright and Freshwater. It is apparently not the case that Freshwater merely presents a restatement of what the law has always been.

I may also be wrong about the number of cases Freshwater does in. One would have to track down the cases--and their progeny--in the Lisenko tree. That could be a whole lot of cases.

Also, it would seem that the Supreme Court should not have scolded the Court of Appeals. The offensive analysis comes originally from Supreme Court cases. It's not something that the Court of Appeals simply invented, although it is also true that the Supreme Court has not used the analysis in 20 years now.

A final comment about the circle's having come 'round: Justice DeBruler concurred in the result in Crawford, saying: "I believe that it is sufficient to state that as a matter of law, this Court determines that the mere unauthorized entry of a person into a building containing articles which could be easily carried away is insufficient to prove intent to steal those articles." 241 N.E.2d at 798 (DeBruler J., concurring in the judgment.) There were two dissents in Crawford, so Justice DeBruler's vote and statement, in what must have been one of his first cases, controlled the outcome and the holding. He dissented in Lisenko, a 3-2 decision. I don't think that Freshwater says any more or less than what Justice DeBruler's Crawford concurrence said almost 40 years ago.

The more things change . . .

Frivolous Sentencing Appeals in the 7th: Maybe It Just Depends on the Panel

Sentencing Law & Policy's own Doug B. is getting a little aggravated with our very own 7th Circuit. See this post from Doug about Judge Posner's complaint that reasonableness review of sentences within the Guidelines are frivolous. The complaints--both Judge Posner's and Doug's--caught my interest, because of United States v. Wasz, a 7th Circuit sentencing case from June about a mother and son theft ring.

It's a great story, set out in fine detail. But the mother got a sentence at the low end of the Guidelines; the son got a below-Guideline sentence despite his greater criminal history. And they were up there arguing about two levels plus or minus, depending on how the loss was calculated. And their method of calculating the loss makes no sense: cost to the victims, who were large retail chains like Home Depot. (The Waszes later sold the stuff on eBay.)

Now perhaps the discussion of how to value the loss was instructive. But I thought this a legitimate candidate for a frivolous appeal. I guess if Judge Posner had been on the Wasz panel, the appeal might not have been a mere candidate.

"Wasz," by the way, in Polish (and in Russian) means "your" (plural). The "Yours" might more appropriately have been named the "Ours." Just a switch of a letter: "Nasz."

Blakely & Retroactivity: Johnson from the Colorado Supreme Court

As linked on Sentencing Law & Policy here, the Colorado Supreme Court has come out with an opinion in People v. Johnson, its preview of Burton, the U.S. Supreme Court case that will deal with Blakely retroactivity. (Link to the Burton opening merits brief also via SLP here.)

I don't know what the law is / was in Colorado, but there is one part of the Colorado Supreme Court's analysis that simply ought / would not fly in Indiana. Recall that there is an initial cut between substantive and procedural rules. New substantive consitutional rules get full retroactive application, including cases on collateral review. If a new rule is procedural, then Teague rears its ugly head. Here's the snippet from Johnson that gets the court past Blakely as announcing a new substantive rule:

In Summerlin, the United States Supreme Court described the difference between substantive and procedural rules. Substantive rules, the Court explained, “alter[] the range of conduct or the class of persons that the law punishes." Summerlin, 542 U.S. at 353. Procedural rules “regulate only the manner of determining the defendant’s culpability." Id. (emphasis in original). Summerlin addressed the retroactivity of Ring v. Arizona, 536 U.S. 584 (2002), which applied Apprendi in holding that a jury, and not a judge, must find the existence of aggravating circumstances that warrant the death penalty. Observing that Ring "did not alter the range of conduct Arizona law subjected to the death penalty" but rather “altered the range of permissible methods for determining whether a defendant’s conduct is punishable by death," the Summerlin Court held that rules like the one announced in Ring "are prototypical procedural rules." Summerlin, 542 U.S. at 353.

Summerlin compels the conclusion that Blakely announced a procedural rule. Like Ring, Blakely did not alter the range of conduct that may be punished, but instead regulated the manner in which such conduct was to be proved. See Summerlin, 542 U.S. at 353.

Slip op. at 8-9.

But if Blakely announced something new at all--and I hold with Mike Limrick that Blakely changed nothing, except perhaps the unwillingness of judges outside of Kansas to recognize Apprendi's clear import--it certainly did alter the range of conduct punishable by Indiana. And it did so drastically. Because "sentencing factors" are to be treated as traditional elements, the whole standard smorgasbord of non-statutory aggravating factors became off-limits in Indiana after Blakely. The use of non-statutory aggravators, when treated as elements, is nothing more than the prohibited judicial creation of common law crimes.

In the Blakely litigation in Indiana, this aspect of Blakely has arisen only once, as far as I know. It was in a brief interchange in the Smylie oral argument. Justice Sullivan asked if Blakely forbids the use of non-statutory aggravators at all. The answer was, "Yes." The issue and the argument then went walkabout--beyond Indiana apparently.

I have no idea why this aspect of Blakely never seems to have been raised in the cases. In case after case, the Court of Appeals finds some reason that the use of a non-statutory aggravator at sentencing was just fine. But it should not matter what a defendant admited or waived for Blakely purposes, if the admission or waiver was not related to a statutory aggravator.

Not quite a random example of what I mean comes in this less than edifying snippet from Frye v. State, about which I posted in a different context here:

The State filed notice of the aggravating factors they would be presenting for consideration by the trial court in sentencing Frye. The aggravating factors submitted by the State include Frye's criminal or delinquent activity, the nature and circumstances of the crime committed, Frye's character and a violation of a no contact order as well as the high risk that Frye will commit another crime, and that Frye was in need of correctional and rehabilitative treatment that can be best provided at a penal facility.

During sentencing the trial court referred to two aggravating factors not specifically mentioned in the State's notice. One was that there were two guns used by Frye, and that the place of occurance was, in fact, Royal's home.

Two reasons weigh heavily against Frye's argument on this issue. One is that he specifically waived a jury that would have considered his Blakely rights. The defendant must express his personal desire to waive a jury trial and such personal desire must be apparent from the court's record, whether in the form of a written waiver or a colloquy in open court. Jones v. State, 810 N.E.2d 777, 779 (Ind. Ct. App. 2004). After an explanation by the trial judge, Frye expressly, on the record, waived a jury.

The other is that this court has observed that Blakely need not be read 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, 825 N.E.2d 1274, 1276 (Ind. Ct. App. 2005).

(Footnote omitted).

The one thing that Frye seems to have gotten right is that Huffman merely made the observation: "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." This unsupported "observation," written by Judge Sullivan, who is usually quite careful, would seem to fly in the face of the now familiar language from Apprendi and Blakely--going all the way back to Jones, actually--laid out as a rule: "[a]ny 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. And the Huffman observation seems quite hollow indeed in light of the following from Blakely:

This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the "truth of every accusation" against a defendant "should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours," 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that "an accusation which lacks any particular fact which the law makes essential to the punishment is ... no accusation within the requirements of the common law, and it is no accusation in reason," 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872).

(Footnote omitted).

But I digress. The bold portions in the excerpt from Frye above set out six non-statutory aggravators--and two of them were not charged--so the Huffman digression was not entirely digressive. The use of these non-statutory aggravating circumstances, regardless of waiver, is simply not permissible, because to use them is, after Apprendi, Blakely, and Recuenco, to create common law crimes with the bolded facts as judicially created elements.

The use as aggravators of these facts and others like them was permissible--and usual--before Blakely. After Blakely, and for crimes committed before April 25, 2005, when the General Assembly unanimously adopted Indiana's Blakely statutory fix, these sentencing factors / elements no longer could increase punishment.

And after Recuenco, there cannot be much doubt about this aspect of Blakely: sentencing factors are to be treated as traditional elements. From Recuenco:

Our decision in Apprendi makes clear that "[a]ny possible distinction between an 'element' of a felony offense and a 'sentencing factor' was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation's founding." 530 U. S., at 478 (footnote omitted). Accordingly, we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt. Id., at 483-484. The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of "armed with a firearm" to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes.

The only dodge I can think of is some distinction between treating elements and sentencing factors the same for Sixth, but not Fourteenth Amendment purposes. That would be an artful dodge indeed.

I do not know what it might portend for Burton, but it is very interesting to me that the snippet from Recuenco above relies entirely on Apprendi. That makes some sense, because the Court is saying that Recuenco's case is indistinguishable from Neder. But the implication would seem to be that Blakely changed nothing of the Apprendi analysis.

Given the uniformity with which all the courts have rejected retroactivity claims for Blakely, are we about to have another Blakely moment with Burton? That is, will the SCOTUS decision in Burton do what Blakely at least arguably did: explain the obvious to the nation's judges, who have all gotten it "wrong"? (And don't forget that Burton involves consecutive sentences too.)

And a final question: might Blakely retroactivity, to the extent it depends on Blakely having announced a new substantive rule, depend upon the law of the jurisdiction in which retroactivity is sought?

The Sunday Pickle

The Cat Piano

The Proceedings of the Athanasius Kircher Society

Tech Saturday: 7th Circuit Oral Argument Feed

Paste this link into your feed reader or podcast software and grab the 7th making the lawyers dance. (I actually had a nightmare before my one and only oral argument in the 7th: Judge Posner with a six-shooter leaning out over the bench and shooting at my feet. It turned out that Judge Posner was not on the panel; and the argument turned into a really interesting and enjoyable conversation almost exclusively with Judge Wood.)

And here's the 7th's oral argument page for seeking out a particular argument by party or case number.

It would be nice if the Indiana appellate court site had a feed--seems to have everything else, even if it is in PDF these days.

What a Week for Oral Arguments

It has has been quite a week for oral arguments.

• On the Blakely / Smiley front, there was the Indiana Supreme Court oral argument in Anglemyer. (Direct RealPlayer link.)
• There was also the 7th Circuit oral argument in the Indiana legislative prayer case, Hinrichs v. Bosma, Case No. 05-4604. (Direct MP3 link.) And I just discovered this tonight: links to all the briefs and even the short appendix may be had by pasting this link into your feed reader. (I use Forumzilla in Thunderbird, so everything just sits there until I clean it out. The items don't disappear or get cleaned out just because they're "read." That is especially nice to keep a list of opinions delivered by RSS.)

That's more than an hour's worth of worthwhile listening.

Marcia Oddi covered the Anglemyer argument in these posts: here and here, with links to the briefs in the second of the two. And Doug Berman on Sentencing Law & Policy links to Marcia here. National attention for Anglemyer and Marcia. My own take on the argument will follow. (Needless to say, the Indiana Supreme Court is not happy about it and the Court of Appeals having become sentencing courts after Indiana's awful Blakely fix where just about anything goes in the trial courts.)

I have something like 100 items sitting in my Thunderbird blog folder. Lots to do. I really want to finish a post I started long ago on Shouse v. State, a Court of Appeals case that appears ordinary enough, but was an entrance into the fascinating world of the use and misuse of precedent by the Indiana appellate courts. There are 17 cases I have to go read first.

And then there's Armstrong, from the Indiana Supreme Court, in which it turns out that an "accident" is only anything "undesirable." More specifically, someone intentionally leaps out of your car and you've been involved in an "accident."

Or there's the opening merits brief (link to PDF file in this SLP post) in Burton, the Blakely retroactivity case in the U.S. Supreme Court. Fascinating two-pronged argument: Blakely either changed nothing after Apprendi, or it's so new it's a watershed rule deserving full retroactive application, not just back to Apprendi. How's that for backing SCOTUS up against a wall? And why not a word about the procedural successive habeas problem?

And then there are all the implications and fun to be had with the appearance of the Court of Appeals unpublished decisions. Besides the categories of "Why wasn't this published?" and "There's a reason this isn't published," this could turn out to be a feast for habeas mavens.

All this great stuff to work with.

Combs: Blakely Constrains Appellate Review?

Keith Combs v. State (Ind. Ct. App. August 4, 2006), out today, offers an interesting Blakely wrinkle. Over a dissent by Judge Vaidik, Judges Mathias and Robb conclude that appellate review of sentences under Appellate Rule 7(B) is subject to Blakely. I think Judge Vaidik has the better of this particular argument; and if the State seeks transfer to the Indiana Supreme Court, my guess is it will get it.

There is no direct Blakely challenge apparent in the case. The appeal of the sentence appears to request pure appellate review / revision only.

The majority says something quite interesting going into its review of Combs' sentence:

We believe that as a matter of fundamental fairness and under the pertinent caselaw as it currently stands, even appellate review of sentences under Appellate Rule 7(B) is constrained by Blakely. See Williams v. State, 827 N.E.2d 1127, 1128 (Ind. 2005) (“Or we could alterthe sentences ourselves within the bounds of Blakely using our review and revise power.”).

I do not believe anything in Williams says that Blakely acts as a restraint on independent appellate review of a sentence that is unobjectionable on statutory or constitutional grounds. The sentence imposed by the trial court in Williams did violate Blakely, and so the Supreme Court, in figuring out what sentence to impose itself, felt constrained by Blakely--so it imposed consecutive sentences, avoiding Blakely altogether, giving Williams a whole half year benefit for his appeal.

This is pretty much the point Judge Vaidik makes in footnote 14 of her dissent:

Had Combs’ sentence not been statutorily proper or had his sentence violated Blakely (such as if all of the aggravators were improper under Blakely), we also could have exercised our constitutional authority to revise his sentence rather than remand to the trial court. See Neff v. State,849 N.E.2d 556, 562 (Ind. 2006); Williams v. State, 827 N.E.2d 1127, 1128 (Ind. 2005). In this instance only, the reviews would be co-extensive.

(Emphasis in the original.) (I think only one aggravator need violate Blakely before one is at least into harmless error analysis and,therefore, probably the option of appellate resentencing subject to Blakely.)

That this option exists was at least called into question by Justice Boehm's dissent almost 10 years ago now in a death penalty case, Lambert v. State, 675 N.E.2d 1060 (Ind. 1996). Justice Boehm raised the very interesting question whether the power to review and revise sentences extends to invalid sentences. Here is a snippet from his dissent:

In this case the trial court sentenced the defendant after procedural error that requires setting that sentence aside. . . . Article VII, § 4 of the Constitution of our State gives this Court "the power . . . to review and revise the sentence imposed" in any criminal appeal. This provision, in my view, doesnot suggest that we should initiate sentences. Rather it presupposes a validly imposed sentence that we may review and revise.

Id. at 1066-67 (Boehm, J., dissenting). Justice Boehm lost the debate in Lambert; and so today we have cases like Williams, where despite the Blakely errors found, the appellate courts just do theresentencing themselves.

But to get back to Combs. I do wonder what the Combs majority has in mind when it says that "fundamental fairness" requires the application of Blakely to independent appellate review of otherwise unobjectionable sentences. In sentencing Combs, the trial court did consider any number of aggravators offensive to Blakely. So maybe the court merely meant that it was giving Combs a Blakely appeal despite the failure to raise it in those terms.

It's an interesting idea that I wish the court had spun out so we wouldn't have to guess. It's especially unfortunate we don't have an explication in light of the meat of Judge Vaidik's dissent which, unassailably in my view, says:

Blakely is concerned with the enhancement of a defendant’s sentence based on facts not proven beyond a reasonable doubt. 542 U.S. 296, 303-04 (2004). Under Appellate Rule 7(B), Indiana appellate courts may not increase a defendant’s sentence. See Ind. Appellate Rule 7(A) (“A defendant in a Criminal Appeal may appeal the defendant’s sentence.”) (emphasis added). As such, Appellate Rule 7(B) does not implicate Blakely. Therefore, when analyzing the nature of the offense and the character of the offender under Appellate Rule 7(B), appellate courts may rely upon facts that were not proven beyond a reasonable doubt because there is simply no danger to the defendant that his sentence will be increased. Indeed, Appellate Rule 7(B) is used as a vehicle to reduce a defendant’s sentence.

Slip op. at 21 (Vaidik, J., dissenting).

Keep an eye on Marcia Oddi's transfer lists at the Indiana LawBlog. I'm going off to look at today's now.