Recuenco: The Bad News & The Good News

Recuenco is here . . . here. The Court holds 7-2 that Blakely error is subject to Chapman harmless error analysis. That's the bad news that I have a hard time understanding for all the reasons set out in Justice Ginsburg's quite detailed and powerful dissent.

The really good news is the forcefulness with which Justice Thomas's opinion restates that sentencing factors, other than the fact of a prior conviction, are to be treated just like traditional elements. An issue that has yet to be litigated in Indiana, at least, as far as I know, is whether the use of sentencing factors not specifically enumerated by statute, amounts to the forbidden creation of common law crimes. I think Recuenco strongly suggests that it is--or was, under the old sentencing regime.

After reading theThomas and Ginsburg opinions, I wonder whether Recuenco raised the correct issue on appeal. Blakely's Sixth Amendment aspect may be subject to harmless error analysis--obviously, after Recuenco it is. Under the lens of a Sixth Amendment jury claim, the facts of Recuenco may indeed be indistinguishable from Neder, as Justice Thomas says.

But what about Blakely's Fifth / Fourteenth Amendment notice aspect? It is absolutely clear that Recuenco, unlike Neder, had no notice in any form, and certainly not in the charge, that he would be subject to the mandatory firearm enhancement. (Again, see Justice Ginsburg's amazingly complete and compelling rendition of the facts.) Would the result be different if someone in Recuenco's position claimed lack of notice in violation of the Due Process Clause? If sentencing factors are to be treated exactly the same as traditional elements, I think it would have to be.

I do have a question about Justice Ginsburg's dissent that maybe someone can answer. She says that Recuenco's enhanced sentence was obtained in violation of the Fifth and Sixth Amendments made applicable to the States by the Fourteenth Amendment. Which provision of the Fifth Amendment does she have in mind? The Fourteenth Amendment has its own Due Process Clause. Here's the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The indictment requirement does not apply to the States. Why does she need the Fifth Amendment at all? Is it because, in fact, there is a hidden double jeopardy claim here: that Recuenco, having been convicted of a lesser offense without the enhancement, was then "convicted" of a greater offense that included the enhancement?

More on Johnson in Colorado & Blakely Retroactivity

As I mentioned in this post, on June 14th the Colorado Supreme Court held oral argument in Johnson, the case in which the Colorado Court of Appeals held that Blakely shall be applied retroactively to Apprendi in Colorado.

The argument is up--it took a couple of days--and can be heard via this link with Windows Media Player--or anything else that plays WMA files. It lasts half an hour. It provides a (distinctly minor league) preview of Burton, the Blakely retroactivity case the Supreme Court has decided to hear.

The thing I found most interesting about the argument was the State's and a justice or two's heavy reliance on holdings that Crawford is not retroactive. Given that SCOTUS has taken a Crawford retroactivity case, that seemed a risky strategy.

It will be interesting to see if the Colorado Supreme Court waits until after Burton to decide Johnson. And if they don't, what happens with Johnson will be worth watching because, as discussed in this post, I don't believe that state courts are bound in their retroactivity analysis by SCOTUS decisions. And this is true even if, as Colorado and Indiana, state retroactivity analysis mirrors Teague and its progeny in almost all relevant detail.

The Johnson argument might make a nice, brief distraction before the opinions begin to rain down this week from all quarters as many courts end their terms. I'm putting out my rain barrels.

Companion Case Day at the Indiana Supreme Court--Including Big Sentencing News

After what must have been a busy day yesterday working on the Toll Road case, the Indiana Supreme Court has handed down five opinions today, depending on how you count.

Three sentencing opinions by Justice Rucker are companion cases. The court finally does in the numerous decisions of the Court of Appeals blocking appeals of sentences where there was a plea agreement calling for anything but open sentencing. (Tumulty (Ind. 1996) rears its ugly head yet again--the case that (finally) decided that one may not appeal a conviction from a guilty plea--although, as we know from Collins, one must appeal a sentence and not wait for post-conviction proceedings.)

Two opinions by Justice Dickson are companion cases saying that that municipalities do not have immunity from being sued over accidents resulting from high-speed chases.

Here are the links:

Jeffrey Patrick, City of Gary & City of Gary Police Department v. Richard Miresso

45S03-0505-CV-223

45D01-0204-CT-101

06/14/06

City of Indianapolis and Indianapolis Police Department v. Richard Garman

49S00-0602-CV-55

49D10-0006-CT-852

06/14/06

Roger D. Childress v. State of Indiana and Gary L. Carroll v. State of Indiana

61S01-0510-CR-484 & 61S04-0510-CR-485

61C01-0402-FB-56, 61C01-0303-FB-55, 61C01-0204-FD-59 & 61C01-0306-FC-104

06/14/06

Jerry Reyes v. State of Indiana

49S04-0510-CR-475

49G04-0207-MR-193968

06/14/06

David Weiss v. State of Indiana

17S03-0510-CR-487

17D01-0309-FA-2

06/14/06

(Boy, that was pretty nifty. I never tried just pasting the links from the opinion site over here.)

From a quick read of Justice Rucker's sentencing cases, it is absolutely clear that one may ask the appellate courts to independently review a sentence imposed where a plea agreement left a judge any discretion. What is not clear--and I need to read the cases more carefully--is whether one may also raise claims of sentencing error. They're not the same thing.

Under the new sentencing regime, however, sentencing error hardly matters. See this post and Judge Barnes' opinion in Anglemyer.

The blog topics mount.

Oral Argument in Colorado: Johnson & Blakely Retroactivity

At 10:00 a.m. MDT, the Colorado Supreme Court is going to hear oral argument in Johnson, the case in which the Colorado Court of Appeals decided that Blakely is retroactive to Apprendi.

The Colorado Supreme Court oral argument site is here. I do not know if they do live webcasts. The links for yesterday's oral arguments at the court are already up, so even if they don't, it appears the archive will be available quickly.

Toll Road Case Oral Argument (Updated)

I missed a good bit of the argument. In what I did see, however, the justices did not seem very sympathetic to the folks challenging the sale of the Toll Road.

Here is a direct link to the argument. (RealPlayer required.) The archived version is not yet available. Sometimes it takes some days. I hope they will be quick about getting it up in this case.

[Update 5:15pm: The link above is live, and has been since 3:00 p.m., as Marcia Oddi at the Indiana Law Blog has written in a comment below. I guess I couldn't get on at 4:00 p.m., not because the archive wasn't there, but because I was in line behind the rest of the world.]

Toll Road Case: Supreme Court Oral Argument at 1:30pm EDT

If money is measure of importance, then the Toll Road Case is the most important case to come before the Indiana courts in living memory. As Carl Sagan would have said, "Billions and billions."

Oral argument is set for 1:30pm--an hour from now. With RealPlayer, you should be able to watch the argument live via the link at this site. The case name is Steve Bonney v. Indiana Finance Authority. The link to the argument is grayed out at the moment. I am assuming it will become active shortly before the argument. (I have my autorefresh set for the page.)

For truly fabulous coverage of the last minute maneuvering in the case--Justice Dickson's recusal and the appellants' request in light of the recusal for a remand to the Court of Appeals--go see the Indiana Law Blog. The most recent post is here.

I was going to post again about Gutermuth. But there are much bigger fish to fry.

Gutermuth: The Blakely WayBack Machine

After reading some Burton materials, I was going to offer a brief post on the variety of things the lawyering and judging crews mean when they say a case is "retroactive." And then Judges Crone, Friedlander, and May of the Indiana Court of Appeals throw out a timely case with a substantial wrinkle in the typology. The case is Gutermuth v. State (Ind. Ct. App. June 7, 2006). It's a 34-page opus. And an important one. It could be hugely important, actually.

Here's the question: Gutermuth was sentenced in 1997. He pled guilty to three counts of child molesting. That's three years before Apprendi and nine years before Blakely. Does he get the benefit of Blakely?

Here's the answer: Yes.

Here's the question: How?


Three Kinds of Retroactivity

1. There is Griffith v. Kentucky "retroactivity." When a new case is decided, any case pending on direct review at the time gets the analysis of the new case. In the case of criminal appeals, this is pretty much a one-way door. If the law has changed for the worse while their case is pending on direct appeal, a criminal appellant is, in most circumstances that I can thinks of, not going to be saddled with the new worse law. (Which is why it is, to this day, so scandalous that Teague was Teagued.) Gutermuth involves quite a twist on Griffith "retroactivity."

2. Then there is the kind of "retroactivity" that seems to be at issue in Burton. Burton's direct appeal became final between Apprendi and Blakely. Burton's main argument, if I am not mischaracterizing it, is that Blakely changed nothing, and therefore he should get the benefit of Apprendi. This second kind of "retroactivity" is not retroactivity at all, in fact. Call it "As our precedents make clear" "retroactivity."

Because Burton is a habeas appeal under the AEDPA, it could be hilarious, however gratifying, to see the Court say that any pre-Blakely application of Apprendi not in conformance with Blakely was unreasonable. Let's see. That would include everyone for about four years. Except Kansas, of course.

3. Then there is Teague retroactivity, which is the only kind, it seems to me, that deserves the name. Every case, however final, rises from the dead to live again in the light of the new case. Call it "Lazarus Retroactivity." I thought that Winship was the last case the Supreme Court gave full retroactivity to. But I believe I saw there was one in the 80's. I do not believe there has been one since Teague was decided in 1989.

Some Background on Indiana Bad Practices and Gutermuth

For years, until relatively recently, it was the practice of almost all Indiana trial courts to make a bollocks of guilty plea hearings. The courts would tell defendants that by pleading guilty they were waiving their right to appeal their convictions. The Indiana Supreme Court has said that you may not appeal a conviction from a guilty plea. So this advisement should not have been much of a problem. Any later attack on the conviction simply had to be by way of post-conviction relief.

Unfortunately, the Indiana Supreme Court said quite long ago that even from a guilty plea you may not wait for post-conviction proceedings to attack a sentence. If you want to attack a sentence, it has to be by direct appeal.

But the trial courts did not tell people this. I am not sure why the lawyers involved said nothing--defense or prosecution. It's not as if the law was unclear. But, in any event, there was a bunch of folks who were lead off from their guilty pleas believing there was nothing left to do, because they had not been advised of their right, indeed the necessity, of appealing their sentences.


Gutermuth I and Collins

Having pled guilty in 1997, in 2000, Gutermuth filed for post-conviction relief.

The Court of Appeals affirmed the denial of post-conviction relief in 2003. But the Court of Appeals rejected the State's argument that the sentencing claims had been forfeited because Gutermuth had not appealed them directly after his conviction.

Enter the Indiana Supreme Court in November 2004. The court vacated the Court of Appeals' Gutermuth decision and said that yes, the sentence had to have been appealed directly and could not be attacked in post-conviction proceedings. (The Supreme Court's Gutermuth decision is here . The companion case, Collins, with most of the discussion, is here.)

But that's not the end of the matter. The Supreme Court in both Collins and Gutermuth said that in light of the bad advisements, the two might well be able to pursue what's called here a "belated appeal." A belated appeal, if granted, is just like any other direct appeal.


Gutermuth Reloaded

So, in March of 2005, a little more than 8 months after Blakely, Gutermuth requested and received permission to file a belated appeal. In his appeal, Gutermuth attacked his sentence with Blakely. And yesterday the Court of Appeals said, sure enough, a belated appeal is like any other direct appeal, and Gutermuth got review of his Blakely claims.

To be sure, Judge Crone, writing for the panel, did not sound happy about the result:

At this point, it bears mentioning that those familiar with Indiana’s criminal justice system are aware that there are likely hundreds, if not thousands, of criminal defendants in a situation similar to Gutermuth’s: namely, those who pled guilty and were sentenced prior to both Collins and Blakely and were not advised of their right to challenge their sentence in a direct appeal. Pursuant to Smylie and Griffith, many of those defendants are now entitled to retroactive application of Blakely, and many of them have pursued (or will pursue) a belated appeal and challenge their enhanced sentences “on the basis of a rule that was not the law when they were convicted [and] could not have been anticipated when they were sentenced[.]” Powell v. State, 574 N.E.2d 331, 334 (Ind. Ct. App. 1991). To put it mildly, the retroactive application of Blakely is likely to “have a highly detrimental effect on the administration of justice.” Id.

Slip op. at 18-19. (Some citations, all footnotes omitted).

The conclusion that Gutermuth gets to raise Blakely claims seemed obvious to me. As I said, belated appeals are just like any old direct appeal.

I was shamed to read in the opinion, however, that two other panels of the Court of Appeals have come to an opposite conclusion in cases that completely escaped my notice. The first is / was Robbins v. State (Ind. Ct. App. 12/28/05). The relevant passage from Robbins appears at page 14 of Gutermuth:

As to whether Robbins’s case was “final” when Blakely was decided, we note that a timely notice of appeal is filed within thirty days after the entry of a final judgment. Ind. Appellate Rule 9(A)(1). While Robbins still had the option of pursuing a belated appeal at the time that the Blakely rule was announced, it is our conclusion that because his right to pursue a timely appeal had lapsed over four years prior to Blakely, his case was final for the purpose of retroactivity. Accordingly, we conclude that Robbins is not entitled to raise a Blakely challenge because Blakely does not apply retroactively to Robbins’s case.

Interestingly, Judge Friedlander concurred in both Gutermuth and Robbins.

[Correction (6/9/06): Thanks to a reader more alert than I, apparently, it turns out that Judge Friedlander in fact dissented, adhering to his Robbins view and vote. I must have simply imagined seeing a unanimous vote line. This is especially bizarre, because Judge May also wrote an opinion labeled "concurring," but she only concurs in result. More about Gutermuth in the next post.]

The second case, Hull v. State (Ind. Ct. App. 12/30/05), says the same thing as Robbins. There's a long quote from it on page 15 of Gutermuth. Not suprisingly, Judge Baker wrote Robbins and concurred in Hull two days later.

I cannot believe I missed these two. Had I caught them myself, I'd have added them to the sidebar under Blatant Indecencies.

Transfer was not sought in either case, and I really do wonder why. (Both Robbins and Hull had private lawyers. Maybe the families had had enough.) I don't know if there are any similar cases from the nether world of the Court of Appeals unpublished decisions that might be on the Supreme Court's radar.

But really. To take so literally the language "pending on direct review" from Griffith, as well as some other language, and to exclude people who are granted belated appeals after Blakely was decided? The rule is: belated appeals, once granted, are like any other direct appeal. And courts simply don't carve out some days, months, or years of law in deciding direct appeals.

Where was Judge Baker when it was time to take the "prior conviction" exception literally with respect to criminal history? In fact, his rehearing opinion in Bledsoe, way back at the very, very beginning, started the "criminal history exception" to Blakely in Indiana.


Signifying . . .

In the end, Gutermuth got nothing from his Blakely claims. But as Judge Crone rightly pointed out, I think, there are lots of folks out there who weren't told of their right / duty to appeal their sentences.

One obvious dam against any eventual wave of belated appeal requests would be simple denials of permission to file belated appeals.

Anyway, bully for this panel. It disagreed--and properly so--with two other panels. (Thank heavens we don't have "Circuit Precedent.") And Judge Friedlander even publicly disagreed with himself. [Note (6/9/06): see the correction above. Judge Friedlander in fact agreed with himself in a dissent.]

A day of good law as well as considerable irony, if you think about Burton's struggle just to get to Blakely to reach back to Apprendi in 2000.


A Final Question

Is this the earliest sentence to which Blakely has so far been applied?

Burton: Retroactivity on the SCOTUS Menu . . . Yummm.

The Supreme Court has gone and done it: it's granted cert. in a Blakely retroactivity case. Another one out of Washington, wouldn't you know?

The case is Burton v. Waddington out of the Ninth Circuit. (Sentencing Law & Policy has the cert. brief here. SCOTUSBlog has a brief blurb on the case here.

I have read the cert. petition and the petition in opposition quickly. There is more going on in this case than is almost possible to imagine. First, it is a habeas case. So put on your habeas beanies and put in some fresh batteries to make the propeller go whizzzz.

Second, from what I can tell from the briefs--the cert. petition in particular--the Blakely violation, if any, arises out of the imposition of three consecutive sentences, not out of any single sentence being "exceptional" under Washington law. I could be wrong about that, and maybe someone from Washington will check in with superior knowledge. (There is a reason folks are licensed one state at a time. It's not entirely protectionism of the guild variety.)

So is SCOTUS going to giving us a double whammy: retroactivity and the application of Blakely to consecutive sentences?

Or is it not going to be a retroactivity case at all, as Burton argues: just plain old Apprendi applied "as our precedents make clear"? If so, then Justice O'Connor's worry in Blakely wil have be prescient.

I am not sure I understand what all the fuss about retroactivity is in the case or all the other federal cases to have considered the matter. Am I mistaken, or is it not the rule that a SCOTUS case is not retroactive until the Court says it is? I'll have to look that up . . . for the third or fourth time now.

Because this is a habeas case, the relationship of any decision to state collateral proceedings will require careful analysis. And maybe one result will be, several and even maybe many years from now, a clearer understanding for all of the relationship between state post-conviction proceedings and federal habeas review.

Let me not leave it at vague generalities. Here is a very specific problem that could arise in Indiana. (Golly Gosh, as Justice Sullivan remarked at the beginning of the Smylie oral argument way back when, there's so much, one hardly knows where to begin.) But let's say the Supreme Court says Blakely did announce a new rule. It also says that the new rule gets full retroactivity under the second Teague exception for increased accuracy.

Because of Booker, it could do this without causing the slightest mess in the federal courts--I think. There would, of course, be a tremendous mess in the state courts for the foreseeable future. And you can bet the state courts will come up with whatever they can to limit the damage to final judgments.

But let's say it happens. So I have a client sentenced in, say, the early 90's. I file a successive post-conviction petition based on Burton. Let's say that the Indiana Court of Appeals, which has unreviewable authority to grant or deny permission to file a successive petition--we do Little Fed here, in part, at least--says no.

That would be bad for the state courts, because then, quite quickly, I take my client to federal court and get de novo review of the fed claims undecided by the state courts on the merits.

So let's say the Court of Appeals says yes. I litigate the successive petition. State court post-conviction retroactivity rules are not run by fed law. Indiana happens to do its version of Teague which is not at the moment distinguishable, I think from what SCOTUS does. But presented with Burton, the Indiana Supreme Court would be absolutely free to say that Burton is not retroactive under Indiana's version of Teague. So I lose.

The biggest problem for habeas will be that I did not lose on any federal claim, although the federal claim was lost somewhere in no-man's land.

And I have a strong feeling that if SCOTUS issues a decision in Burton that is potentially beneficial to criminal defendants, a lot of those people and their lawyers are going to find themselves in some version of procedural no-man's land--or limbo.

Different problems arise if the Supreme Court says that Blakely did not not announce a new rule. They are equally staggering, though. If Blakely did not announce a new rule, then we're back to Apprendi. So in Indiana, one simple question will be: do all of the folks going back to Apprendi get to go back?

And there is the issue that I have discussed briefly in previous posts. Even if Blakely is not retroactive in some States for some reasons, the second Teague exception almost certainly should apply to Blakely in Indiana. Before Blakely, there was no standard by which a judge had to find aggravating circumstances to impose an enhanced sentence. At most, the finding of aggravating circumstances simply had to be supported by the record.

After Blakely, aggravating circumstances had to be found beyond a reasonable doubt. That seems to me to be the kind of increased

Without even getting to the habeas aspects, what happens if the Court says Blakely applies to consecutive sentences? (The questions presented do not raise the issue. Why would the Supreme Court grant cert. on the other issues, if it is not prepared to say, "Of course Blakely applies to consecutive sentences"?) I'm not sure that there are anymore pipeline Blakely cases of any sort. Do the folks who lost, like Smylie, get to go back for more? (Smylie is long out, I believe, so he won't be going back. But there are a lot of others less fortunate.)

There is a whole raft of folks, I should think, who did not raise sentencing issues at all, because all they had were consecutive sentencing issues to raise. And they were dead on arrival after Smylie. So if they try to get relief, will or can the Indiana Supreme Court apply its utterly bizarre Blakely procedural rule for the pipeline cases that only folks who challenged their sentence on direct appeal may benefit from Blakely--now Burton?

I guess I shouldn't go too far with Blakely and consecutive sentencing in Burton, because I don't really know that Burton necessarily raises the issue. It sure looks to me like it does though.

So I will start collecting the note cards with the questions. It will be a large stack. Maybe I'll be able to track down some answers.

The Sunday Pickle

Alexander Hamilton would have loved blogging--because he loved to tell people what to do.

At least that's what Richard Brookehiser of National Review fame had to say in an appearance to plug his new book on C-SPAN 2's Afterwords. (The idea for the book is actually pretty intriguing: What would the Founders say about something like 60 current hot topics? The link to the May 27th interview is here--RealPlayer. C-SPAN 2's BookTV is the best.)

There was another fun fact of sorts from the interview. At the time Aaron Burr killed Hamilton in their 1804 duel, the law was pretty clear just about everywhere that it was murder plain and simple to kill someone in a duel. If so, why were murders by duel never prosecuted? No jury would have convicted, Brookhiser says.

Hmmm. Times have changed. Anecdotally, from the tales of the true trial lawyers I encounter, it seems to me that modern juries will convict anyone of just about anything once the prisoner is in the dock. There have, of course, been some notable, notorious, and very public exceptions. (The best lawyer I know--who also taught me just about everything I know worth knowing about lawyering--said once upon a time that if she were innocent, she'd want a bench trial; if guilty, a jury. I think I agree with her with one proviso: I'd want a bench trial if I could prove my innocence.)

I'm not going to plug Brookhiser's book for him. I haven't read it. But the interview was entertaining. And I will give his blog a link.

I don't post much about blogging itself. But it never occurred to me that blogging is about telling people what to do. I'll have to think about that.

But Alexander Hamilton as blogger. There's a concept. The Federalist Papers as blog posts. Hmmm. I guess we should be grateful that blogging wasn't then on the menu. We might today be talking about the Founding Bloggers.

Which reminds me of what my now-six-year old said a year ago or so when, to his shock, he heard that I didn't have video games when I was growing up: "Why not, Poppa? Didn't you have electricity?"