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.)
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