More about Post-Conviction Rule 2: When Plain Language Means Its Opposite

In the previous post, I pointed out that Post-Conviction Rule 2, § 1, which governs belated appeals, cannot be the proper vehicle for filing a belated appeal of a sentence. By its language, the rule only applies to belated appeals of convictions:

Where an eligible defendant convicted after a trial or plea of guilty fails to file a timely notice of appeal, a petition for permission to file a belated notice of appeal for appeal of the conviction may be filed with the trial court, where . . .

.The Indiana Supreme Court said otherwise in Gutermuth, of course.

A clever reader and cleverer lawyer pointed out to me that there is another problem with the rule. The rule does permit belated appeals of convictions after a guilty plea. That would seem to imply that an appeal of a conviction resulting from a guilty plea is possible.

Except that it isn't:

In Tumulty [v. State, 666 N.E.2d 394 (Ind. 1996)], we held that once judgment is entered, a defendant may not subsequently challenge his guilty plea on direct appeal. Id. at 395-96. The correct avenue for such claims is post-conviction relief. Id. at 396.

Brightman v. State (Ind. 11/15/01).

So with Gutermuth, the Supreme Court permitted what the rule forbids; and with Tumulty, the court forbade what the rule permits.

I take no position about what the rule in either instance should be. But I am not sure why the plain language of the Supreme Court's own rules need to contradict what the Supreme Court says the law is. Gutermuth is 2 years old; Tumulty 10. It cannot be that hard for the court ot amend its own rules.

Maybe I am missing something, and I invite comments.

Baysinger: Another Blakely Pop-Up Belated Appeal

The Court of Appeals has decided another Blakely belated appeal: Baysinger v. State, Court of Appeals No. 01A02-0512-CR-1178 (Ind. Ct. App. October 13, 2006). Judge Vaidik wrote an opinion concurring in the judgment. It sets out the problem of Blakely and belated appeals very nicely. I disaree with the result she would reach, but there's something to disagree about.

I call it a "Blakely pop-up" appeal, because Baysinger's conviction and sentence were "final" in 2001, after Baysinger failed to file a direct appeal. Then in March 2005, Baysinger requested permission to file a belated appeal. So, When Blakely was decided in June 2004, Baysinger's case was, arguably, both final and not pending on direct review.

The majority opinion in Baysinger goes through some (now-familiar) tortured analysis of provisions in the post-conviction rules to conclude that Baysinger's case was not final when Blakely was handed down. That's because he had not exhausted the possibility of requesting a belated appeal.

That doesn't seem right to me. On that theory, almost no case that was not appealed originally would ever be final. It would be simpler and, more correct, I think, simply to say that a direct appeal is a direct appeal. And we apply the law as it exists at the time we decide a direct appeal.

I have read Griffith v. Kentucky again. Several times, actually. And it is pretty clear from the opinion and from Justice Rehnquist's dissent, that Griffith just does not quite cover the case. Griffith had in mind the situation when a case is literally either pending on direct review or not final at the time a new case is announced.

Additionally, the post-conviction rules really don't cover a belated appeals of sentences. Post-Conviction Rule 2, § 1, provides for "a petition for permission to file a belated notice of appeal for appeal of the conviction." And it's well-established that there are no belated appeals from the denial of post-conviction relief, because they are not appeals "of the conviction." Compare what these two cases say in light of the language in the rule:

Gutermuth v. State (Ind. 11/9/04):

We hold that the proper procedure for an individual who has pled guilty in an open plea to challenge the sentence imposed is to file a direct appeal or, if the time for filing a direct appeal has run, to file an appeal under P-C. R. 2.

Davis v. State (Ind. 7/19/02):

We have held more than once that P-C.R. 2(1) is a “vehicle for belated direct appeals alone.” See, e.g., Greer v. State, 685 N.E.2d 700, 702 (Ind. 1997) (quoting Howard v. State, 653 N.E.2d 1389, 1390 (Ind. 1995)). It provides petitioners with a method to seek permission for belated consideration of appeals addressing conviction, but does not permit belated consideration of appeals of other post-judgment petitions. Howard, 653 N.E.2d at 1390.

Of course, the Indiana Supreme Court had to do something about the many cases in which trial courts had misinformed people that by pleading guilty, they were waiving their right to appeal anything. (See this post about the "Blakely Wayback Machine" from last June when Gutermuth and Collins came down.) It's just interesting what vehicle the court chose: a rule, the language of which specifically forbids the remedy the court provides.

Would it not have been easier simply to say that the Indiana Constitution provides a right to an appeal in all criminal cases? Then, when a trial court misinforms someone that they are waiving they're right to appeal, there has been no voluntary, knowing, or intelligent waiver of the right to appeal a sentence. Therefore, where that has happened, a person is entitled to post-conviction relief under the normal post-conviction procedures. The remedy is an appeal, much as the remedy when appellate counsel has been ineffective is a new appeal--even if there is no mechanism that I am aware of by which an Indiana post-conviction court can order a new appeal.

Of course, I think Blakely should get full retroactivity either universally under Teague, or in Indiana, for reasons peculiar to Indiana sentencing before the regime change in April 2005. So what's going on with all these belated appeals and Griffith retroactivity is merely the entree, as it were.

That's the procedural stuff. The substantive analysis in Baysinger I find both familiarly and freshly bewildering. Setting aside the four aggravators offensive to Blakely, the opinion concludes that the single remaining aggravating circumstance, Baysinger's criminal history, saves the enhancement to 65 years. This is how they do it:

[A] Blakely analysis, as to any other aggravators, is not necessary as we can say with confidence that the trial court would have imposed the same sentence had it considered only Baysinger’s prior criminal history as an aggravator in this case. See Witmer v. State, 800 N.E.2d 571, 572-73 (Ind. 2003) (“Where a trial court has used an erroneous aggravator, as occurred here, the court on appeal can nevertheless affirm the sentence if it can say with confidence that the same sentence is appropriate.”) (citing Day v. State, 560 N.E.2d 641, 643 (Ind. 1990)).

So much for Chapman harmless-error analysis for constitutional errors. As Justice Kennedy said during the Cunningham oral argument in a different context: "Well, it is the same old record we've been playing."

I forgot to mention: Baysinger's criminal history consisted of a single misdemeanor conviction for possession of marijuana. Harmless error aside, the Court of Appeals justifies the maximum sentence based on this misdemeanor conviction because: 1) it occurred only six months before the murder; and 2) the murder occurred during a drug-related dispute.

So the Court of Appeals can say with confidence that the trial court would have imposed the same maximum murder sentence had it considered only this single aggravating circumstance together with the two mitigating circumstances it found? Maybe.

But one of the mitigating circumstances was that Baysinger had only one prior conviction. The same one, it turns out, that justifies the maximum sentence for murder.

Note: I, like the rest of the world, am trying out posting from the new Google Docs. I guess we'll see if there's a lot of editing after posting. Apologies ahead of time to anyone who gets the posts by RSS, if you get the feed, and it looks awful. So here goes . . .

Salazaar v. State: A Feat of Memory Leads to a Wrinkle on Belated Appeals.

There has been a spate of belated appeals cases in the published and unpublished decisions over the last few weeks. Eight published decisions by my count since July 25th.

One came down yesterday with an interesting practice pointer in it for those who labor in the land of Indiana's Post-Conviction Rules, which govern belated appeals. At least it contains a tidbit that I did not know about. The case was Salazaar v. State, Court of Appeals No. 79A02-0502-PC-130 (Ind. Ct. App. October 10, 2006).

For some reason, requests for permission to file a belated appeal are run by Post-Conviction Rule 2. (I guess the reason is that the Indiana Supreme Court has set it up that way.) Normally, in post-conviction proceedings under Post-Conviction Rule 1, one has to enter the trial record as evidence. According to Salazaar, "Due to the very nature of a Post-Conviction Rule 2 hearing, and unlike a petition for post-conviction relief under Post-Conviction Rule 1, the entire record of the original trial is automatically before the trial court in a Post-Conviction Rule 2 proceeding. Henry v. State, 170 Ind.App. 463, 466, 353 N.E.2d 482, 484 n.2 (1976)." Slip op. at 9.

There's no reasoning about this to speak of--just the citation to a footnote in Henry. I've looked at Henry. Just the footnote with the proposition. No reasoning. And, with a half-hearted search, I have not been able to find the proposition anywhere else. (Please comment, if you know of other cases.)

But guess what. Judge Sullivan wrote Salazaar; and Judge Sullivan was on the panel that decided Henry. It looks a bit as though Judge Sullivan has had that Henry footnote tucked away for 30 years--and from an opinion he did not even write.

Amazing.

United States v. Resendiz-Ponce: Trial on a Bus?

Thanks SCOTUSBlog for putting up the link to the oral argument transcript in United States v. Resendiz-Ponce.

Only Justices Scalia and Souter seemed to get it. In Justice Souter's words, "When is an indictment not an indictment?" When it leaves out an element of the offense, perhaps?

This case involves attempt to re-enter the U.S. case. But the federal indictment did not allege what the substantial step was that constituted the attempt. (The Ninth Circuit seems to have discussed the matter in terms of "overt acts," which is conspiracy, and not attempt, language. Was it driving to the border? Was it presenting false identification? Was it having breakfast?

The government's position was pretty simple: the guy was convicted by a petit jury, properly instructed about all the elements. Any deficiency in the indictment was harmless and ought to be treated as such. This, even though Resendiz-Ponce objected to and moved to quash the indictment, which motion the district court denied.

If federal law requires that an indictment allege an attempt's substantial step with specificity--and Justice Breyer said he had read up on the subject and was not sure--then no substantial step in the indictment, it seems to me, means no indictment. If there's no indictment, how can that absence be subject to harmless error analysis in light of the Fifth Amendment's indictment requirement?

The government argued that there are 70-80,000 indictments a year; prosecutors do get indictments wrong; we should count on district court judges to get it right; and even when they don't, it doesn't matter so long as a conviction results. The government's position--which I would find laughable, if a number of justices had not seemed to take it seriously--is that later conviction by a properly instructed petit jury will always make the omission of an element in an indictment harmless.

But let's just say that there are six possible acts that could have been proved the substantial step in this case. Is it too much to ask that the goverment go get a superceding indictment that alleges at least one, and maybe all six, of the acts? It could have done it in this case, before a trial. If later, at trial, the government proves a seventh act instead of one of the six, at least harmlessness can by analyzed in terms of prejudice caused by the degree of variance from the indictment.

If the government wins this one, the Fifth Amendment's indictment requirement will have been relegated doctrinally to irrelevance, it seems to me. I'm not saying that it's not almost irrelevant, practically speaking, now.

Maybe the Supreme Court will punt this one. See SCOTUSBlog's procedural analysis of the argument here, which I read as suggesting a deep drop and a kick.

On the third hand, if the government loses on the merits, the decision could, arguably, have a big Blakely effect. Aggravating circumstances are now elements. The reason a loss on the merits by Uncle Sam might not have much Blakely bang at all is that the decision would be grounded in the Fifth Amendment's indictment requirement.

Indiana does not have an indictment requirement. The law is clear, though, that a charging information has to allege the specific substantial step that was taken in an attempt. This is really no different from the requirement that a burglary charge allege the specific felony the burglar had the intent to commit when breaking in, e.g., theft.

But Indiana has it's own areas of movement toward trial on a bus. There's Lee v. State, which I have included in the sidebar as a Blatant Indecency. In Lee, the Indiana Supreme Court said that one cannot complain of a plainly illegal sentence, if one benefitted in a plea bargain of which the illegal sentence was a part. It is very hard to square that with the legion cases that say judges only have the power to impose sentences authorized by statute and that illegal sentences constitute fundamental error that may be raised for the first time on appeal. And Lee, a 1994 case, continues to have legs. An illegal sentence was affirmed on the strength of Lee just the other day in Borders v. State, Court of Appeals No. 79A02-0603-CR-180 (Ind. Ct. App. September 29, 2006).

And then there is a much older case, Floyd v. State, 650 N.E.2d 28 (Ind. 1994), which is really seven cases rolled into one. The upshot of Floyd is that anyone is a judge, so long as everyone agrees that she is. (Hard to square Floyd's upshot with its opening shot: "The Indiana Constitution requires that judicial acts be performed only by judges. Ind. Const. art. 7, § 1. Thus, only a duly elected or appointed judge of the court or a duly appointed judge pro tempore or special judge may enter an appealable final judgment, including a criminal sentence. When a court official who is not a duly elected or appointed judge of the court purports to make a final order or judgment, that decision is a nullity.")

Trials on a bus cost the administrative state very little; and the administrators are winning. I guess we'll see if they win Resendiz-Ponce.

Cunningham coming up.

From the Land of the NFP: Sanders v. State

The flood of NFP decisions now available for public viewing has provided some very interesting stuff. There are many cases that when I look at them, I wonder why they are NFP. But in this post, I want to take on a case that is definitely small potatoes and deservedly NFP. It's an astonishing collection of spuds nonetheless.

The case is Sanders v. State, Court of Appeals No. 10A01-0512-CR-585 (Ind. Ct. App. October 4, 2006) (mem.). Sanders was not very well-behaved at various points during his trial, so the trial court excluded him from closing arguments and from the habitual substance offender phase. Sanders claimed on appeal that he had been denied his Sixth Amendment right to be present at all critical stages as well as his similar right under Article 1, § 13(a), of the Indiana Constitution.

Sanders forfeited / waived his right to be present at those times, the opinion says, by his behavior. Fine. End of issue.

Except, unnecessarily, the opinion goes on:

Moreover, even if we were to agree with Sanders, a denial of the right to be present during all critical stages of the proceedings under the Sixth Amendment is a constitutional right that is subject to a harmless error analysis. Hernandez v. State, 761 N.E.2d 845, 853 (Ind. 2002), reh’g denied. Further, under the Due Process Clause, "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Hubbell v. State, 754 N.E.2d 884, 895 (Ind. 2001). Lastly, a violation of Article I, Section 13 of the Indiana Constitution is subject to a harmless error analysis. Debro v. State, 821 N.E.2d 367, 375 (Ind. 2005). Sanders has not shown, or attempted to show, how he was harmed by his absence or how his presence would have contributed to the fairness of the procedure. Any error in the trial court’s exclusion of Sanders from the courtroom was harmless. See, e.g., Ridley, 690 N.E.2d at 180-181 (holding that the defendant failed to show how the proceedings were critical to the outcome of the trial or how his presence would have contributed to the fairness of the procedure).

Slip op. at 5. This apparently unobjectionable paragraph of superfluous legal analysis is, in fact, practically a perfect storm of errors. First, the opening proposition supposedly ripped from Hernandez is not complete. What Hernandez actually says is: "[T]he United States Supreme Court has held that denial of this constitutional right is 'subject to a harmless error analysis unless the deprivation, by its very nature, cannot be harmless.' Rushen v. Spain, 464 U.S. 114, 117-18 n.2 (1983) [(per curiam)] (citations omitted)." (Emphasis added).

So, contrary to the Sanders opinion and according to the case it cites, a critical-stage error is subject to harmless error analysis--except when it's not. And there is no explanation in Sanders about why exclusion during closing arguments and the subsequent habitual substance offender phase does not qualify for the alternative treatment as structural error.

But why is Hernandez being cited at all? Hernandez was a right-to-counsel case, not a right-to-be-present case. The two are related, but not the same. As in Hernandez, the right-to-counsel cases usually talk about the need for a lawyer when confronted with legal intricacies. And Sanders's lawyer was always present. The right-to-be-present cases are vaguer . . . see the next paragraph.

The next proposition is similarly incomplete. The citation to Hubbell is correct--Hubbell actually says what Sanders says it does. ("In sum, 'a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.' Kentucky v. Stincer, 482 U.S. 730, 745 (1987).".) But here is part of Hubbell that Sanders leaves out: "Although Hubbell has the right to be present at significant stages of the criminal proceedings, he has not established that any hearings he missed, including the one on July 14, 1999, were of critical importance to implicate the Confrontation Clause."

It is not hard to guess why Sanders leaves that out: it is hard to imagine how exclusion from the habitual substance offender phase did not "implicate the Confrontation Clause," in the words of Hubbell. And it's similarly not hard to guess why Stephenson v. State, a 2001 Indiana Supreme Court case, wasn't the citation of choice here in Sanders, even though Stephenson is really the case on point:

First, Defendant claims his Sixth Amendment right to be present in the courtroom at every stage of his trial was violated. This right is rooted in the Confrontation Clause. Ridley, 690 N.E.2d at 180 (citing Illinois v. Allen, 397 U.S. 337 (1970)). A Confrontation Clause violation occurs when witnesses or hearsay evidence are presented in the defendant’s absence that affect the defendant’s opportunity for cross-examination. See Kentucky v. Stincer, 482 U.S. 730, 737-38 (1987).

With respect to the proposition regarding Article 1, §13 of the Indiana Constituion and harmless error, the citation to Debro is stunning for a couple of reasons. First, to the extent that Debro involved Article 1, § 13(a), at all, it involved the state Confrontation Clause, which is quite different from the Sixth Amendment's, providing for the right "to meet the witnesses face to face." It did not involve the provision of Article 1, § 13(a), that provides for the right of a defendant "to be heard by himself and by counsel." Debro was about hearsay testimony admitted over objection while both Debro and his lawyer were present.

Second, Justice Rucker's Debro opinion makes no mention at all of Article 1, § 13, and harmless error analysis in any context. The opinion specifically declines to decide anything under Article 1, § 13: "We need not determine today whether our state constitution affords a defendant a right of confrontation in a sentencing hearing." (In fact, citing Chapman, Debro decided that the federal Confrontation Clause violation found was harmless because there was "sufficient other evidence.of probative value." Now there's Chapman harmless error analysis for you.)

Back to the final bits of the Sanders paragraph: "Sanders has not shown, or attempted to show, how he was harmed by his absence or how his presence would have contributed to the fairness of the procedure." The first half of this has Chapman harmless error analysis backwards, as did Hernandez. If there was federal constitutional error in Sanders being excluded then, at best, from the State's perspective, the State had to show beyond a reasonable doubt that Sanders's absence did not contribute to the outcome of the habitual substance offender phase. And my guess is that complete exclusion, if error, is structural error. I have not done the research on that, though.

That Sanders failed to show "how his presence would have contributed to the fairness of the procedure" does not indicate that the error in excluding him was harmless. It indicates that there was no error because the moment was not a critical stage.

And lastly: "Any error in the trial court’s exclusion of Sanders from the courtroom was harmless. See, e.g., Ridley, 690 N.E.2d at 180-181 (holding that the defendant failed to show how the proceedings were critical to the outcome of the trial or how his presence would have contributed to the fairness of the procedure)." This is the same problem. The parenthetical proposition from Ridley says nothing about harmlessness. Indeed Ridley, in the passage cited for the reasons mentioned, concluded that Ridley's absence had not occurred during a critical stage.

O.K. There is a reason that some cases are NFP. But so much of this stuff ought to be boilerplate. It ought to be correct boilerplate. And really--NFP or not--how much can go awry in a single, unnecessary, paragraph?

Burton: How Are They Even Going to Get to Blakely's Retroactivity?

Wow. I don't want to turn this into the Burton blog, but there's so much to read and say. To give credit to the blog chain: Sentencing Law & Policy led me to Crime & Consequences. From there I landed at the Burton brief collection here, courtesy of the Criminal Justice Legal Foundation. That's what blogs are about: movement like an orangutan through the tops of trees in the rain forest.

I almost took Doug Berman's post at SL&P as a personal invitation:

But if retroactivity issues are more your cup of Blakely tea — an issue soon to come before the Court in Burton — a lot of exciting reading is now available.

(And what about the application of Blakely to consecutive sentences, which is also presented by Burton?)

I have not thoroughly digested the State's (Respondent's) brief; but it does begin with the threshhold question of whether Burton's habeas petition was successive and therefore barred without express permission from the Ninth Circuit to file it. Here's what Crime & Consequences has to say about the question:

There is a huge jurisdictional question that the Ninth Circuit just blew by. If the Supreme Court actually affirmed that holding, it would be more important than the question they actually took this case to decide.

But I think I have stumbled upon a solution to the problem that someone cleverer than I in Washington figured out at cert. time. The solution was suggested to me by the State's brief and its reliance on Slack v. McDaniel. Which sent me to 28 U.S.C. 2844(b) and eventually landed me in a fascinating death-penalty habeas case out of Indiana: Lambert v. Davis. Judge Ripple dissented from the conclusion that Lambert's petition was "successive." And I think that SCOTUS is going to repeat, in essence, Judge Ripple's Lambert dissent.

The gist of that dissent arises out of Slack, which points out that "second or successive petition" in 2244(b) is a term of art about which Congress knew in passing the AEDPA. It does not mean what it literally says, but incorporates the Court's prior "abuse of the writ" jurisprudence. Burton did not file repetitive habeas petitions; he merely split the baby between convictions and sentencing, because that's how his case fell out in the state courts. So, I expect SCOTUS is going to say at least that the district court had the discretion not to treat the petition challenging Burton's sentence as a "second or successive petition."

The discretion part has to be there because of language in the plurality opinion in Rose v. Lundy, which says that a petitioner who has filed a mixed petition with exhausted and unexhausted claims, and who decides to proceed with the unexhausted claims only, "risks" having dismissed as a successive petition a later petition that includes the formerly-unexhausted claims. (The site I occasionally use to test the readability of posts is going to go nuts with that sentence.) Rose, a 1982 case, was pre-AEDPA. But that is of no matter if the AEDPA language "second or successive petition" in 2244(b) merely incoporporated pre-AEDPA case law.

I personally find this whole approach hard to square with 2244(b)'s unambiguous language. But the language is only unambiguous, I guess, if you don't consider "second or successive petition" a term of art--which Slack says it is.

Which leads to an interesting twist. In Slack, Justices Scalia and Thomas dissented. Justice Scalia's dissenting opinion would lead one to think that neither Justice Thomas nor he would be sympathetic to Burton's having attacked first his conviction and then his sentence in successive petitions. At the same time, if Burton is going to receive any Blakely relief, one would have to suppose that both Justices Scalia and Thomas will be among those voting for that relief. How does that work?

I don't know if Burton is a horrible vehicle to decide the Blakely questions involved. It certainly presents a number of labyrinthine complications. But that's habeas: both divine and hellish.

Rehearing en banc in Lambert was denied in August. Maybe my sense of timing is off, but my guess is that Lambert's inevitable cert. petition is going to result in a GVR in light of Burton. Or nothing, if it turns out that Burton's a dud. (But how could that happen?)

Oy, my brain hurts. Time to watch baseball.

The Sunday Pickle

The Rules of Evidence

What you want to say most
is inadmissible.
Say it anyway.
Say it again.
What they tell you is irrelevant
can't be denied and will
eventually be heard.
Every question
is a leading question.
Ask it anyway, then expect
what you won't get.
There is no such thing
as the original
so you'll have to make do
with a reasonable facsimile.

The history of the world
is hearsay. Hear it.
The whole truth
is unspeakable
and nothing but the truth
is a lie.
I swear this.
My oath is a kiss.
I swear
by everything
incredible.

-Lee Robinson

From the Writer's Almanac for Saturday, Septmber 25, 2006.