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.