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.

Frye: Controlling Precedent:--Do We Care?

Surely one meaning of "wrong" when speaking of appellate decisions has to be that a decision is contrary to controlling precedent. (And I still don't know how the Missouri Supreme Court had the chutzpah to buck the U.S. Supreme Court in Roper. And who'd have thought that SCOTUS would affirm?!!?)

Back on July 18th, the Court of Appeals came out with Frye v. State. It's a Crawford case decided a month after the U.S. Supreme Court, in Hammon v. Indiana--the companion case to Davis v. Washington--, reversed the Indiana Supreme Court's decision in Hammon v. State.

The Court of Appeals does something in Frye that I don't think I've ever seen before: it goes through the Indiana Supreme Court's Hammon analysis, using it for precisely the proposition that SCOTUS rejected and reversed on 29 days previously. And I do not know whether it makes it better or worse that the Court of Appeals drops a footnote saying that it is aware of the SCOTUS decision, but the testimony at issue, it thinks, is non-testimonial within the meaning of the SCOTUS decision.

You really have to see this to believe it:

Frye argues that the case of Crawford v. Washington, 541 U.S. 16 (2004), prevents the admission of certain hearsay evidence if it is testimonial because it violates the confrontation clause of the federal Constitution. A testimonial statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings. Wallace v. State, 836 N.E. 2d 985, 995 (Ind. Ct. App. 2005). In evaluating whether a statement is for purposes of future legal utility, the motive of the questioner, more than that of the declarant, is determinative, but if either is principally motivated by a desire to preserve the statement it is sufficient to render the statement testimonial. Hammon, 829 N.E.2d at 456. The Indiana Supreme Court in Hammon, quotes from the Court of Appeals opinion of the same case, Hammon v. State, 809 N.E.2d 945, 952 (Ind. Ct. App. 2004):

[T]hat the common denominator underlying the Supreme Court’s [the Crawford opinion] discussion of what constitutes a testimonial statement is the official and formal quality of such a statement. Accordingly, the court reasoned that the Supreme Court limited its holding in Crawford to police interrogation, which carries with it a connotation of an at least slightly adversarial setting. The Court of Appeals held that when police arrive at the scene of an incident in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not testimonial. This conclusion has been cited for the proposition that preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an ‘interrogation. Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police interrogation as that term is used in Crawford.

(Internal citations and quotation marks omitted.)

We are of the opinion that the foregoing quote is equally applicable to the fact situation in this appeal and that Chastain’s statement to Officer Harper was not testimonial.

Slip op. at 6-7.

Think of what the correct citation to the Indiana Supreme Court's Hammon should look like:

Hammon v. State . . . rev'd on same grounds by Hammon v. Indiana . . . .

The online docket for Frye provides, perhaps, some basis to infer an explanation. The briefing in Frye was completed in March. One might guess that the Court of Appeals knew that SCOTUS had granted cert. in Hammon, wrote an opinion anyway, and then sat on it until the SCOTUS decision. The path of least work then, after SCOTUS reversed, was simply to drop the footnote to say that the SCOTUS decision did not make any difference in the case.

Maybe it did and maybe it didn't. The facts are written to fit with the Indiana Supreme Court's (rejected) Hammon analysis, which practically equates an excited utterance with non-testimonial statements:

Officer Harper testified that a startling event occurred when an armed Frye invaded Royal’s residence, that Chastain was distraught, crying, and hysterical, and her statement related to the event, which was occurring or had occurred immediately beforehand.

Slip op. at 5. To apply the SCOTUS Hammon analysis, one would have to know what Chastain actually said. Was she asking for help or telling Officer Harper what happened? Or both?

How very strange.