Transfer Woes: Not Judge Robb's Lucky Day.

The transfer list for this week is interesting. (Available here on the Indiana Law Blog.) Three grants in two published and one unpublished decision of the Court of Appeals.

Judge Robb was the author of all three. The other thing the opinions have in common is that they are all civil cases. I can't recall when I saw three grants of transfer in a week arising from opinions by one judge.

The two published opinions in which transfer has now been granted are:

Lambert v. Lambert (Ind. Ct. App. December 15, 2005) (The effect of imprisonment on child support obligations)

and

City of Carmel v. Steele (Ind. Ct. App. November 8, 2005) (City ordinances and annexation).

The third, unpublished decision is Holcomb v. Walter's Dimmick Petroleum, Inc., Court of Appeals No. 76A04-0410-CV-572 (Ind. Ct. App. November 8, 2005) (mem.). (No reason to include the case numbers with the linkable cases.)

In both Lambert and Holcomb, Judge Bailey concurred with Judge Robb; Judge Friedlander dissented in both. In Steele, Judge Robb was joined by both Chief Judge Kirsch and Judge May.

Looks like Judge Robb was having a tough day on November 8th last year--and another one today. At least in the two published decisions, from what I can see and guess, transfer hasn't been granted to say the cases were correctly decided.

On the other hand, it looks like a pretty good day for Judge Friedlander--two dissents that, it appears, will prevail--and one of them in an unpublished decision.

Feed Links for Indiana Appellate Decisions

For anyone who wants to get the links to new Indiana Supreme Court and Court of Appeals opinions, try dumping these two links into your feed reader.

Indiana Supreme Court Opinions

Indiana Court of Appeals Opinions

These feeds will just deliver the titles of the opinions with the links to the PDF files. (Let me know if they don't work. They've been reliable for me for a week or so now.)

There's a nifty web site out there called FeedYes at which you can make feeds for sites that have none. (I'm sure the same thing can be done for the Tax Court opinions. I just haven't done it.)

For those using Thunderbird with the RSS reader installed, adding these feeds, you can have a permanent list with links to all of the Indiana appellate decisions--and the list will be viewable either by date or case name. No more need for the courts' archives. (Hmmm . . . Now there's a thought I had not had: create feeds out of the archives as well. Have to give it a try.)

Of course, you can save yourself the muss and fuss, if you want to, simply by grabbing Marcia Oddi's Indiana Law Blog. She doesn't just give you the links, but quotes and commentary as well.

I wouldn't miss the ILB for anything, but I also like having the raw links and case names dumped as they come out into Thunderbird and GreatNews. (GreatNews may be primitive: but it's simple and portable.)

So much for my tech contribution for the day.

Anglemyer: The Post-Blakely Era Has Arrived

We now know what the Court of Appeals, at least, thinks of the new (since April 25, 2005) advisory sentences: they are essentially unreviewable for trial court error. And that should not be surprising because, as Judge Barnes points out in Anglemyer v. State, Court of Appeals No. 43A05-0510-CR-590 (Ind. Ct. App. April 20, 2006), because trial courts can impose any statutorily authorized sentence for good reason, bad reason, or no reason at all, were an appellate court to reverse for trial court error, the sentencing judge could impose the same sentence all over again for the same good, bad, or no reason.

Recall that Judge Barnes has done some of the best Blakely work, especially in his Freeze opinion from last May, where he at least pushed the Blakely ball along to the level of Chapman harmless error analysis. (I think Blakely error is structural, but whatever it is or should be, it is not subject to state harmless error analysis--or even worse, the "with confidence" standard, to which Judge Barnes objected in his concurring opinion in Davis last October. See this previous post about Freeze.)

Since any standards that would contribute to uniformity of sentences has been removed from the sentencing statutes, preserving some degree of uniformity is going to be the job of the appellate courts. ("Indeed, the extensive discretion afforded to trial courts under the new sentencing system will make even more imperative our review of sentences pursuant to Indiana Appellate Rule 7(B)." Slip op. at 8.)

Judge Barnes clearly does not think the current state of affairs is a fine thing. Here is his footnote 4:

In her dissenting opinion in Blakely, Justice O’Connor predicted this result and observed, “The ‘effect’ of today’s decision will be greater judicial discretion and less uniformity in sentencing.” Blakely, 542 U.S. at 314 (O’Connor, J., dissenting). She also urged that the practical consequences of the decision might be “disastrous.” Id. at 314. Justice O’Connor appears to have been correct in both observations.

So all that's left is raw appellate review of sentences under Indiana Appellate Rule 7(B). To facilitate that review, Judge Barnes encourages trial judges to make detailed sentencing statements. But at least for the time being, until the Indiana Supreme Court weighs in on the new regime, if I were a reversal-averse trial judge, I'd keep mum.

It will be interesting to see what the Supreme Court has to say--I can't imagine it being much different. And the appellate courts have to be careful, perhaps, not to create a system of appellate review that would be subject to Blakely.