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 . . .