Does Smylie have a traveling companion?

Smylie, I discovered quite accidentally, is not the only Indiana Blakely case looking for cert. Jaramillo v. State (Ind. March 11, 2005) is looking to go to Washington as well. I have not mentioned Jaramillo, although I should have. When it was decided by the Indiana Supreme Court just two days after Smylie last March, I didn't have enough energy to say all that needed to be said about Jaramillo. Smylie was taking it all out of me. And I regret very much not having revisited Jaramillo in the meantime.

Strictly speaking, Jaramillo is not a Blakely case. It is a Monge v. California case. And Monge is an Almendarez-Torres case.

And it gets more interesting. As in Smylie, the U.S. Supreme Court requested a response from the Indiana AG. The AG asked for 60 more days; and SCOTUS gave him 30--until Sunday. (I don't know whether that means that the response has to be in tomorrow or on Monday.) Originally, by the way, Smylie and Jaramillo were both scheduled for the September 26th conference. Here is the link to the Jaramillo SCOTUS docket. (I have also been told that filings often don't show up on the docket for as much as ten days because of all the security measures to which the mail is subjected.)

Has a decision on cert. in Smylie not been forthcoming, because it and Jaramillo are going to be considered together? They are so dissimilar that that seems unlikely. On the other hand, SCOTUS requested responses from the AG in both cases; and my information is that that happens only when someone in Washington is looking very closely at a case. What are the odds that the two cases would invoke requests for responses and be scheduled for the same conference without some connection? I guess they could be 100 percent.

I am not going to spill the beans in this post about what the real matter with Jaramillo is. (Unlike Dostoyevsky's Underground Man, I don't have an editor to stop me from going on and on.) But here's a clue to for those fanactic enough to do the reading. Compare the Indiana Supreme Court opinion with the earlier opinion of the Court of Appeals. Something very important is missing. In fact, what is missing is more important to Jaramillo than what is there.

I hope to have Jaramillo's cert. petition within a few days.

[Update: Here is the link to the Jaramillo cert. petition.]

Smylie & Ritchie: No decision & denied.

Smylie was not among the grants or denials on today's SCOTUS order list. And according to Doug Berman's estimate on Sentencing Law & Policy, there are 2000 or so denials on the order list.

So Smylie lives to fight another day. Let's suppose there are four votes to grant cert. Perhaps those four votes want to see where the new Chief Justice will weigh in. If the four can get a fifth, then they go ahead; if not, the four votes evaporate. It seems to me that if there were five votes for cert. or only three, they'd just have just granted or denied. Maybe not.

Cert. was denied in Ritchie v. State, one of the cases, along with Barker, in which the Indiana Supreme Court decided that Ring does not require that juries in death penalty cases "find" that aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt. No case could have presented the question more clearly, so the cert. denial does mean something.

Smylie: The AG's Reply

Here is the State's reply to Smylie's cert. petition. It's not a pretty copy, but readable enough for the committed. (I have also put it in the sidebar below the link to Smylie's petition.)

After finishing the section about two "grievous procedural blemishes," the first of which (waiver) metapmorphoses into a "hiccup," at page 4, the State makes the quite extraordinary claim that Smylie's petition "does nothing more than challenge the Indiana Supreme Court's interpretation of Indiana's sentencing statutes." I suggest that the claim is extraordinary because of the purpose for which it is offered: to show that the case presents no "substantial federal question." Exactly the same thing could be said of cert. petitions arising from the Tennessee Supreme Court's decision in Gomez and the California Supreme Court's decision in Black. In fact, every state application, avoidance, or evasion of Blakely is always necessarily going to depend chiefly upon state court interpretations of sentencing statutes.

Somewhat more interesting is that the Indiana AG wields as a sword the fundamental indencency of Smylie with respect to consecutive sentences. Recall in Smylie that the Indiana Supreme Court said: "But our statutes do not erect any target or presumption concerning concurrent or consecutive sentences. Where the criminal law leaves sentencing to the unguided discretion of the judge there is no judicial impingement upon the traditional role of the jury.' Blakely, 542 U.S. at __, 124 S.Ct. at 2540." Of course, before Smylie, and before the General Assembly maximally Booker-ized the sentencing statutes last April, for more than 20 years, there had been a requirement, imposed by the Indiana Supreme Court, itself, as a gloss on the sentencing statutes, that a judge find an aggravating circumstance before imposing a discretionary consecutive sentence.

Now the AG says to the United States Supreme Court--and it might be correct--that the Court is stuck with the Indiana Supreme Court's Smylie interpretation, "[r]egardless of whether that constitutes a change from prior interpretations of that statute." Page 5. The AG returns to this argument and the notice aspect of Blakely on page 9, relying on language from the New Jersey Supreme Court's decision in Abdullah: "Under such a non-presumptive system, a defendant has no entitlement or legal right to concurrent sentences; every defendant who commits multiple crimes knows that by those actions alone, he risks receiving consecutive sentences."

Now recall the functional test of Blakely itself, where Justice Scalia points out that had the judge there imposed "the 90-month exceptional sentence solely on the basis of the plea, he would have been reversed." At the time Smylie was sentenced--at the time he committed the crimes to which he pled guilty-- the law in Indiana was and had been since 1982 that Smylie's consecutive sentences would have been reversed on appeal, unless the trial judge had found an aggravating circumstance. So much for the AG's notice argument. (Perhaps Smylie should have raised an equal protection claim--or even an ex post facto claim, come to think of it.)

But none of the above really matters if Blakely simply doesn't apply to consecutive sentences, because they are separate sentences. (There is no reason that the Indiana Supreme Court could not simply have said as much in Smylie without adopting Stalin's approach to history. It's not as though there is great disagreement on this point among the courts of the land.) The heart of the argument is whether the Indiana AG is correct at page 7, where he says: "Running individual sentences for separate crimes consecutive to each other does not increase the penalty that is imposed for any particular crime." Superficially and intuitively, that seems correct, especially if one focuses on the now-famous phrase, "statutory maximum." The arguments to the contrary are pretty tortured.

In any event, Smylie was not among the cases in which cert. was granted (or denied, as far as I can tell) today. See this post on SCOTUSBlog with summaries of the cert. grants and this link (thanks to SCOTUSBlog) to the order list itself. According to SCOTUSBlog here, next Monday is the next day for the Court to issue orders. The order list was all grants, so there must be a bucketful of denials waiting to rain down. (In this post Tom Goldstein of SCOTUSBlog said that he had reviewed something like 500 cert. petitions that were up for consideration at Monday's conference.) The odds have to be that Smylie is in the bucket.

Penultimately, I note that the new Indiana blog on the block, Joshua Claybourn's Indiana Barrister, got a mention in this post on SCOTUSBlog for this report about a Senate bill to authorize televising Supreme Court arguments. Chapeau.

Ultimately, it's time to make post-midnight naleśniki for a certain little guy's lunch tomorrow.

Smylie: The AG has responded after all.

I have word that the Indiana Attorney General has, in fact, filed the requested response to Smylie's cert. petition. I hope to have it available here tomorrow. Apparently it is 10 pages, much of which is spent on procedural issues--waiver and mootness, in particular--which ought to be non-issues, since the Indiana Supreme Court didn't seem to care about them. (A mootness argument, because Smylie has already served his sentence, seems especially silly to me in light of the recurring problem exception to mootness taken together with the broader importance of Blakely's application vel non to discretionary consecutive sentencing.)

Also, I have consulted someone who has done a great deal of Supreme Court litigation. She says that the folks in Washington don't ask for responses except when it is very likely that cert. will be granted. I guess we'll see soon enough--and it certainly will be interesting if it is. For the reasons set out in the previous post, I can hardly imagine it. But I could not have imagined Gomez or Black or any of a number of decision either, so I am willing to confess to frequent failures of imagination.

Smylie: Tomorrow's the Day.

Well, a glance at the Smylie Supreme Court docket shows that Indiana has still not filed the requested response to Smylie's cert. petition. That is puzzling to an outsider like me. Maybe it happens all the time.

Anyway, tomorrow is conference day for Smylie. I see over at SCOTUSBLOG that Smylie is not among the cases that the folks there think are likely to have cert. granted. If cert. were to be granted, I think I can easily see a relatively brief per curiam opinion more or less flatly saying that the Jones-Booker line of cases simply does not apply to discretionary consecutive sentencing. That would at least settle whatever uncertainty may be out there on the subject--which is not much.

An opinion saying that Blakely does apply to discretionary consecutive sentences I find much harder to imagine. First, the Court will almost necessarily become entangled in 20 years of state court interpretation of statutes that do not, themselves, require judicial fact-finding to support consecutive sentences. So it is not clear to me what possible clear general application a Smylie v. Indiana decision would have. Even if such a decision had some arguable general application to the Blakely-affected and Blakely-afflicted, it would not take much for courts elsewhere to distinguish, even plausibly, their consecutive sentencing schemes from Indiana's.

But second--and perhaps this is just another way of putting what was first--Jones, Apprendi, Ring, Blakely, and Booker share one striking feature, it seems to me: they are based on law and principles just about older than dirt. They are really quite straightforward cases that require no fancy dancing. (With respect to Booker, I am speaking of Justice Stevens' opinion.) One may disagree with the history or the result as, obviously, Justice O'Connor has repeatedly. But there is nothing complex, except in various entailments, about what the cases say or even why they say it. And I think that's why there have been five justices who have agreed five times now about the law and the principles involved.

A Smylie opinion applying Blakely to discretionary consecutive sentencing would not be simple; and I just doubt that the five votes would hang together when faced with any degree of complexity. One only has to look at Justice Ginsburg's departure for the Breyer remedial opinion in Booker to detect a definite fragility in the crystal.

I haven't a clue what a new Chief Justice Roberts will contribute to the debate or the vote. The uninteresting assumption has to be that he will fit more or less snugly into Chief Justice Rehnquist's now-missing place in the puzzle. I'm ready to be surprised.

SL&P: An Amazing State Blakely Page

Doug Berman at Sentencing Law & Policy has created this terrific page with State by State and issue by issue links to state Blakely resources. Does this guy ever sleep? I suspect elves.

Smylie's Cert. Petition, Ryle, and Retroactivity

Here's a link to Smylie's cert. petition. (PDF, about 115KB.) It is also now in the sidebar under Recent Blakely Documents & Articles. Joe Cleary did a marvelous job making the argument (deceptively) simple and putting it in SCOTUS-speak. I hope to be able to nab the State's response, if any, come September 21st.

In putting this up, I noticed that we still have not heard from the Indiana Supreme Court in Ryle about Blakely, juvenile adjudications, and the prior conviction exception. With the April change in Indiana's sentencing statutes, perhaps the issue is not too pressing.

The only potentially breath-taking Blakely issue left, it seems to me, is retroactivity. Judge Bataillon's opinion from August 22nd in U.S. v. Okai (D. Neb.) is a very interesting place to start on that one. (Thanks to Sentencing Law & Policy in this post.) It's a forty-plus page opinion. Start at the bottom of page 17.

The citation to Ivan v. City of New York, 407 U.S. 203 (1972) (per curiam) for Winship's "full retroactivity" is interesting. As I read Ivan, it's not at all clear that "full retroactivity" means more than Griffith. That is, does Ivan stand for the proposition that Winship applies to cases pending on direct review when Winship was decided? Or does it say that cases already final as of Winship may be reopened?

Whatever the answer to that question--and I shall track it down--the following language from Ivan would suggest that upping the burden of proof for sentencing facts to beyond a reasonable doubt should, in fact, fit withing Teague's second exception:

Plainly, then, the major purpose of the constitutional standard of proof beyond a reasonable doubt announced in Winship was to overcome an aspect of a criminal trial that substantially impairs the truth-finding function, and Winship is thus to be given complete retroactive effect.

Here's the language from the plurality opinion in Teague:

Finally, we believe that Justice Harlan's concerns about the difficulty in identifying both the existence and the value of accuracy-enhancing procedural rules can be addressed by limiting the scope of the second exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished.

There isn't much daylight between the two. And while Judge Batallion writes of the moving from a preponderance standard to beyond a reasonable doubt (even after the Booker remedial opinion), recall that Indiana, under the old sentencing regimie at issue in Smylie, had no standard at all for the judicial finding of sentencing facts. To survive appeal, an enhanced sentence merely had to be base upon a judicially found aggravating circumstances supported by the record. Which leads to an interesting possibility: the jump from a preponderance standard to beyond a reasonable doubt might not, in the end, trigger Teague's second exception; a jump from nothing to beyond a reasonable doubt, on the other hand, might.

Baird Spared

Baird was spared today. Governor Daniels commuted his death sentence to life without parole. Marcia Oddi at the Indiana Law Blog has this quote from the Indianapolis Star about the clemency decision.

Indiana governors have not often commuted death sentences. Governor Kernan commuted Darnell Williams' death sentence last summer, I believe it was. This piece from the Indianapolis Star--again on the inimitable ILB--pointed out that before Williams, clemency hadn't been granted in an Indiana death case since 1956.

That's two in a year. By two different governors. Of two different political parties. As depressing as the flight from Blakely and Booker in both state and federal courts might be (see this recent post by Doug Berman at Sentencing Law & Policy), this is a hopeful political development. Even a reason to be cheerful.

Now, if the wretched "Streamlining Habeas" bill will just go away . . . . Or has it already?

Smylie: A month here, a month there . . .

Without, apparently, having filed a request, it seems that Indiana has received an extension to file its (requested) response to Smylie's cert. petition. It's now due September 21st--5 days before the case is scheduled for conference. Here is the link to the docket.

Just another day at the Attorney General's office, I guess. I sure wouldn't let a SCOTUS deadline pass without filing something. Does anyone know if you can just call up the clerk and say, "Hey, howz about another 30 days on that thing your bosses asked for?"

Arthur Baird: Rehearing Denied, Dissent, and the Story . . .

Marcia Oddi reports in this post over at the Indiana Law Blog that a divided Indiana Supreme Court has issued an order clearing the way for Arthur Baird's execution next week. I'm not sure what the division is about. I guess we'll see when Justice Boehm's opinion dissenting from the order appears in the ether . . . if it does. Justice Rucker apparently concurs in the dissent.

It's all just a little odd. On July 19th, a unanimous court denied Baird the opportunity to file a successive state post-conviction petition. Opinion here. So what has changed in a month and a week for two justices? Maybe there was something persuasive in the rehearing petition. Maybe.

I will always recall reading Justice DeBruler's plainly elegant rendition in Baird's direct appeal of what happened:

Appellant and his wife, Nadine, lived in a house trailer located on the forty-acre farm near Darlington, Indiana, that he jointly owned with his parents, Kathryn and Arthur Paul Baird, I. His parents lived in the farmhouse and appellant's maternal grandmother, Noradean Fleming, lived in another trailer on the property. At approximately 4:00 or 5:00 p.m. on September 6, 1985, appellant and Nadine were getting ready to drive to Crawfordsville to go shopping. They planned to visit with Nadine's parents, Lemoyne and Margaret Altic, after they finished, as was their habit on Friday evenings. Nadine was ready to leave before appellant and due to the heat she lay down on the bed and turned a portable fan on herself while she waited for him. After appellant finished getting ready, he walked back to the bedroom and strangled his wife with his hands, then tied a plaid shirt around her neck.

Nadine's parents called the trailer twice that evening. Around 6:00 p.m., appellant told her parents that they would not be visiting because Nadine was sick. The Altics were worried because Nadine was about six months pregnant and they wanted to check on her, but appellant told them not to come over because she had gone to bed. The Altics called back at 10:00 p.m., after also having called appellant's parents to inquire as to Nadine's health, at which time appellant told them that Nadine was still asleep.

Appellant spent the rest of the night in the trailer watching television, writing notes, and periodically lying down next to his wife's body to hold her. He went to his parent's house at about 7:00 a.m., finding them already awake. He fed the chickens and brought the newspaper to his father, and his mother gave him a hair cut. His father then went outside to the washhouse and his mother returned to the sink to finish making some pickles she had started. Appellant then grabbed her from behind, covered her mouth with one hand, reached for a butcher knife, and stabbed her several times in the abdomen and throat as she struggled and screamed for help. As soon as she fell to the floor he headed for the back door and met his father who was entering the house. Appellant mentioned something about a disturbance, and before his father could react appellant stabbed him in the abdomen and throat as the victim attempted to fight him off.

Appellant went back to the trailer and gathered items which he then loaded in his parent's car until the rear end nearly touched the ground. Margaret Altic called between 8:00 and 9:00 a.m., and appellant told her that Nadine was alright but still in bed. He stated that they were going to leave soon for their realtor's office to close the deal on a 253 acre farm that they had been attempting to purchase for approximately a year and that they would stop over afterwards. Mrs. Altic called again at 9:45 a.m. and appellant again told her that he was about to awaken Nadine and that they would come over after the closing.

Appellant left in his mother's loaded down car but turned around in a neighbor's driveway to come back for a pair of pliers that he thought he might need to open some canned food jars. He left again around 11:00 a.m., driving south toward Lagoda through Darlington and Crawfordsville and then on back roads to Huntingburg, where he was apprehended, two and one half hours from his home, at 4:00 p.m. on Sunday, September 8th, while watching a softball game.

Baird v. State, 604 N.E.2d 1170, 1175076 (Ind. 1992).

Mr. Smylie goes to Washington.

It's been two months since my last post, and tomorrow is a sort of big Blakely day for Indiana. Back in June, Smylie filed a cert. petition on the question of Blakely's applicability to consecutive sentences in Indiana. The State then actually waived its right to respond--as opposed to the usual notice, I believe, that it would respond, if asked. Then, lo and behold, the Supreme Court ordered Indiana to respond by tomorrow. Here's the Supreme Court docket sheet; and I'll try to get it into the sidebar when I update that.

I don't know that it means much, but somebody in Washington seems interested in Smylie, Blakely, and consecutive sentencing.

I think I've recovered from my disgust at the California Supreme Court doing a Gomez. It's taken a while. And some interesting things have happened in the meantime. Lot's to talk about.

A Black Day: The California Supreme Court speaks . .

As advertised, the California Supreme Court has decided People v. Black. Six to one, the court has said Blakely does not apply to California sentencing. Justice Kennard stuck to her guns and dissented from that particular holding, although she said that Black's particular sentence did not violate Blakely. (See this prior post about the oral argument.)

The court also held that Blakely doesn't apply to consecutive sentencing in California because: 1) Blakely doesn't apply to California sentencing at all; and 2) Blakely doesn't apply to consecutive sentencing in any event.

The majority opinion is essentially Tennessee's Gomez revisited, taking its cue from the same paragraph of Justice Stevens' majority Booker opinion that Gomez completely misinterpreted. (See this prior post and this prior post about misunderstanding Booker. In the first of the two, it appeared to me that all but Justice Kennard were focusing on the Stevens paragraph. There are two tragedies in life: not being right and being right.) The Black majority does buff up the Gomez argument a bit with the intent of the California legislature in adopting California's "determinate sentencing law." There is also a highly problematic comparison of the post-Booker federal sentencing world with California sentencing.

Perhaps the most suspect moment of the majority opinion comes in an attempt to distinguish the "exceptional" sentence at issue in Blakely with California's every-day sentencing. The idea seems to be that because California courts impose upper terms all the time, there is nothing "exceptional" about the process and so not subject to Blakely.

The huge number of California Blakely cases almost guarantee a cert. petition. Because of California's size and the number of Blakely cases, a denial of a cert. petition in this case would be very telling--almost unimaginable. I find the prospect of a cert. denial almost unimaginable, because Jones, Apprendi, Blakely, and Booker create and enforce a formal sentencing rule that has nothing to do with legislative intent or distinctions between the exceptional and the every-day. But I have suffered a failure of imagination on any number of occasions here in Blakely World.

We now get to wait to see what the New Jersey Supreme Court says in Natale, Abdullah, and Franklin. As I recall the oral argument now, after Gomez and Black, I guess almost anything is possible. A number of the justices were pushing the Stevens "judicial discretion" paragraph from Booker. And I guess Black now gives the Gomez argument a certain faux-respectability--that can only be more faux than respectable.

Time to get Ryled up

Oral argument in the Indiana Supreme Court in Ryle is coming up on June 21st at 9:00 a.m. (Come the 21st, drop in to this website to watch the argument with RealPlayer.)

Recall that the Indiana Supreme Court granted transfer in Ryle, vacated thereby the opinion of the Court of Appeals, and asked for supplemental briefing on two Blakely-related questions which, put in Blakely-speak, are whether juvenile adjudications and being on probation at the time a crime is committed fit within the prior conviction exception. In Indiana-speak, the question is whether these things are "derivative of criminal history."

Before I go on, I should disclose that I have been helping with Ryle's side of the argument. Here are links to: Ryle's supplemental brief and the State's supplemental brief.

With respect to juvenile adjudications, Judge Najam's Ryle opinion from last December does a brief survey of what the opinion represents as the published authority on the subject. Contra treating juvenile adjudications as subject to the prior conviction exception, the opinion represents a single case from the Ninth Circuit, U.S. v. Tighe (9th Cir. 9/24/01).

The opinion represents three opinions, on the other hand, as authority for treating juvenile adjudications as prior convictions. They are: State v. Hitt (Kan. 3/15/02); U.S. v. Smalley (8th Cir. 5/14/02); and U.S. v. Jones (3rd Cir. 6/19/03).

Without any independent analysis, the Ryle panel did not have any trouble dismissing the single opinion from that crazy, liberal court in the West and concluding: "We now join those courts which disagree with the holding of the Ninth Circuit in Tighe and conclude that juvenile adjudications are 'prior convictions' under Apprendi."

At the time that Ryle was decided, however, there were two other decisions dealing with juvenile adjudications as subject to the prior conviction exception. One was a 2002 case from the California Court of Appeals: People v. Bowden (Cal. App. Dist. 2 Div. 4) (9/24/02).

There was also, however, one amazing case on delinquency adjudications and the prior conviction exception from the Pelican State: State v. Brown (La. 7/6/04). There is really no substitute for the opinion itself. It is the onlyboth the relevant U.S. Supreme Court precedent and the distinct nature of juvenile law. case to discuss seriously

After surveying the authority on both sides, the Louisiana Supreme Court said: "Thus, as can be seen, following Apprendi there are two reasonable schools of thought on whether juvenile adjudications, in which the juvenile did not have the right to a jury, can properly be characterized as 'prior convictions'" for felony sentence enhancement purposes." Slip op. at 14. But from the following paragraph, it becomes clear that the court does not really mean that it thinks both schools of thought are "reasonable":

If a juvenile adjudication, with its lack of a right to a jury trial which is afforded to adult criminals, can then be counted as a predicate offense the same as a felony conviction for purposes of Louisiana’s Habitual Offender Law, then “the entire claim of parens patriae becomes a hypocritical mockery.” In re C.B., p. 17, 708 So.2d at 400 (quoting Londerholm v. Owens, 197 Kan. 212, 416 P.2d 259, 269 (1966)).

Slip op. at 21. Brown also includes a citation to a Marquette Law Review comment on the subject of Apprendi, juvenile adjudications, and prior convictions: Brian Thill, Comment, Prior “Convictions” Under Apprendi: Why Juvenile Adjudications May Not Be Used to increase an Offender’s Sentence Exposure if They Have Not First Been Proven To a Jury Beyond a Reasonable Doubt, 87 MARQ. L. REV. 573, 575 (2004). Slip op. at 10. The title pretty much explains the position taken.

In addition to Brown, there was a 2002 Harvard Law Review note weighing taking Tighe's side against Smalley McKeiver v. Pennsylvania (1971) and Ballew v. Georgia (1978), as well as on some social science research, that facts found by juries are more reliable than those found by judges. So, the argument concludes, "[T]he TigheSmalley (116 Harv. L. Rev. 705), arguing that there are reasons to believe, based on two U.S. Supreme Court decisions, court's understanding of juvenile adjudications is more constitutionally sound than that espoused by the court."

There have been a couple of opinions recently weighing in on the Hitt side: U.S. v. Burge, 407 F.3d 1183 (11th Cir. 5/2/05) and State v. Weber, (Wash. Ct. App. 6/6/05).

There is an interesting fact about the Kansas case, Hitt: although cert. was eventually denied in 2003, in an October 2002 order, the Court invited the Solicitor General to express the federal government's views. Hitt was decided within a year of Apprendi, and I think the Court was already trolling for the case that would become Blakely. And I do not think the request for the SG's views in the cert. process is irrelevant to the weight to be given Hitt.

Similarly, but on the other side of the cert. ledger, Louisiana's cert. petition in Brown was denied--post-Blakely. That particular tea leaf, especially when placed beside the invitation to the SG in Hitt, I find particularly interesting. There is, of course, the question of what a court is to do in the absence of clear controlling precedent. Should the court try to anticipate what the U.S. Supreme Court would do, or should it simply call it as it sees it in light of the controlling precedent that does exist? That question could be the subject of several tedious law review articles.

So there is a split in the circuits: the 3rd, 8th, and 11th, against the 9th (and the Harvard and Marquette Law Reviews). There is also a split in the state supreme courts: Kansas against Louisiana. The Washington, Oregon, and Indiana Courts of Appeal have all come down on the side of Hitt. The Indiana Supreme Court's eventual Ryle decision will not resolve the split, but only add weight to one side or the other; and with the split in the circuits and the state supreme courts, it should be apparent that Ryle, whatever the result, will be prime cert. meat.

I want to suggest that beyond my belief that that crazy, liberal Louisiana Supreme Court was "right" in any reasonable sense of the word, there are the following reasons the Indiana Supreme Court should side with Tighe, Brown, and the Harvard and Marquette Law Reviews. First, a delinquency finding is distinctly not a conviction. Formally, under state law, it is not a conviction. And the U.S. Supreme Court explained in part, at least, what it meant by "prior conviction" in Almendarez-Torres (1998) when it said in Jones v. U.S. (1999): "[A] prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." (Emphasis added).

Every court to consider Apprendi--except the Kansas Supreme Court--got it wrong by failing to take seriously what Apprendi quite literally said. Since Almendarez-Torres, the prior conviction exception has always been expressed using the term "prior conviction." A flippant opening for Ryle in the oral argument might be: "What part of 'prior conviction' doesn't the Court of Appeals understand?" Is there any reason to invite Scalia to repeat his now-famous Blakely line: "As our precedents make clear . . . ."?

Second, in light of Jones, Apprendi, and Blakely, even if the Indiana Supreme Court is not certain, it should place the burden of seeking cert. on the State and not on Ryle. It should do so because: 1) what U.S. Supreme Court precedent there is appears to favor Ryle; and 2) the issue is a state problem, and the State has the greatest interest, if any, in seeking clarification from above.

Everyone seems to be reporting that tomorrow we will get to see the California Supreme Court's BlakelyPeople v. Black. I can't wait.

And another final note unrelated to juvenile adjudications: Smylie filed a cert. petition on June 6th. (Case No. 04-10472). Maybe the U.S. Supreme Court will use Smylie to take up the issue of Blakely and consecutive sentences. The only thing detracting from the cleanliness of the way Smylie presents the issue is that the judicial fact-finding required to impose consecutive sentences is not imposed by statute but by case law.

Another Three from the Court of Appeals: Freeze, Carmona, and Dillard

They seem to be coming in threes. There were the three transfer cases from the Indiana Supreme Court back on May 10th and 11th: Patrick, Aguilar, and Nesbitt. Now the Court of Appeals has issued three together on May 18th: Freeze, Carmona, and Dillard.

I'll put the good news first. Freeze, written by Judge Barnes, is (more than?) arguably the best Blakely opinion of any Indiana appellate court to date and therefore a must-read for its discussion of how a Blakely error, once found, is to be reviewed. That is, Judge Barnes provides several noteworthy paragraphs about harmless error, mentioning Neder, Almendarez-Torre, Sullivan v. Louisiana, and Shepard in the process.

I'm not sure that the Indiana Court of Appeals ought to be guessing about the continued vitality of Neder, but it is a discussion worth having--unlike the discussion about whether Blakely constitutional errors should be reviewed under state law rules or standards that (should) have no application in the context of constitutional errors. Judge Barnes' opinion is especially interesting when put next to the similar discussion in the Washington Supreme Court's Hughes decision.

Carnona and Dillard, on the other hand, written by Judge Friedlander, are each notable for precisely one thing: a citation to Ryle, in which transfer has been granted, for the proposition that juvenile adjudications are "prior convictions" for Apprendi / Blakely purposes. Let me just quote the relevant part of Indiana Appellate Rule 58(A): "If transfer is granted, the opinion or not-for-publication memorandum decision of the Court of Appeals shall be automatically vacated . . . ." That is, at the moment, Ryle is not authority for anything.

If the panel in Carmona and Dillard had wanted to come up with new reasons to treat juvenile adjudications as prior convictions and so add to the discussion before the Indiana Supreme Court decides Ryle, that would have been even admirable.

Because the court affirmed the sentences in Carmona and Dillard, I can see no reason to have issued the opinions before a decision from the Indiana Supreme Court in Ryle--except the chase for statistics related to the number of opinions and the speed with which they are issued. If Ryle as decided by the Court of Appeal turns out to have been correctly decided, they just change the citation to the Supreme Court's Ryle opinion; if not, then Judge Friedlander has to rewrite the opinion.

It is also not true that the premature appearance of these opinions will be harmless even if the Supreme Court comes out in Ryle the way the same way as the Court of Appeals. The Supreme Court's decision in Ryle will not appear until long after the time has passed to petition for transfer in Carmona and Dillard. There will, therefore, almost certainly be petitions to transfer in both cases. That will take up lawyers' time and clients' money writing the petitions and the Supreme Court's time dealing with them one way or another. That is, a relatively brief delay in issuing Carmona and Dillard might have spared everyone the aggravation and expense of unnecessary transfer petitions without regard to the outcome of Rylein the Supreme Court.

So did a clerk for Judge Friedlander make a mistake? Did Judge Friedlander know about Ryle and order the opinions issued anyway--perhaps because the opinions had already been voted on? Did someone, clerk or judge, simply miss the grant of transfer in Ryle? My guess is option two, although it could have been either of the other two.

Maybe Carmona and Dillard will petition for rehearing in the Court of Appeals, and the Court of Appeals will sit on that until the Supreme Court issues its decision in Ryle. Rehearing petitions are (usually) quick and cheap. I do not think I have ever heard of the Court of Appeals withdrawing an opinion, but it might have happened.

Three Blakely Transfer Decisions: Patrick, Aguilar & Nesbitt

It always seems I'm out when the big cases hit. The Indiana Supreme Court issued three Blakely opinions today, all per curiam: Patrick and Aguilar, which we knew about, because they were published decisions from the Court of Appeals; and Nesbitt, a case that's been running under my radar, at least, because it was unpublished. (I wonder how many of those there are.)

The short of it is: 1) In Patrick, the Supreme Court said that the State could opt for a sentencing hearing to try the aggravators--the Court of Appeals had said no jury trial; 2) In Aguilar, as I think I said I suspected, Aguilar did not challenge his sentence until rehearing after Blakelyhad been decided; and the Supreme Court said he had forfeited the claim; and 3) Nesbitt is similar, except that the Court of Appeals had remanded for Blakely reasons sua sponte; and the Supreme Court said the Blakely claims had been forfeited.

I'll try to get links and some commentary up tomorrow. For the time being, the cases can be found temporarily (until tomorrow's cases tomorrow afternoon) at this link. They are, at first glance, not all that interesting, except as a demonstration of the court's seriousness about Smylie's highly problematic, if not outright suspect, forfeiture rule. There's still no authority but Smylie's say-so for jury trials of aggravators--and no comment on the double jeopardy or common law crime problems that may arise from treating aggravators as elements.

But I repeat myself.

It's been a suppressing day.

Ryle: Transfer granted on two questions

One of the lawyers involved in the case wrote to me to note that the Supreme Court has granted transfer in Ryle (3/1/05) and ordered supplemental briefing on two questions, which are put as follows in the order appearing in the online docket:

In light of Blakely v. Washington, 124 S. Ct. 2531 (2004), and Smylie v. State, 823 N.E.2d 679 (Ind. 2005), are the facts that appellant (1) had been previously adjudicated a delinquent treated as a prior conviction and (2) was on probation at the time of the offense treated as derivative of Appellant's criminal history under Apprendi v. New jersey, 530 U.S. 466, 490 (2000), such that the facts need not be found by a jury before the trial court can use them to enhance Appellant's murder sentence beyond the presumptive term?

To answer these questions, both Ryle and the State have been given a whopping 7 pages or 3,200 words. If I understand the order correctly, it's blind filing for the supplemental briefs: they're to be filed at the same time with no reply permitted.

Although it does not appear yet on the Supreme Court's online calendar or oral arguments page, I am told that oral argument is scheduled for June 21st. I do not know the hour.

The following Indiana Blakely cases, in reverse chronological order, have treated juvenile adjudications as prior convictions:

• Paschall (4/22/05)) (nothing but juvenile adjudications support enhanced sentence; without citation to any authority)
• Hill (4/14/05) (prior adult and juvenile criminal history supported enhanced sentence; without citation to any authority)
• McCray (3/10/05) (juvenile adjudication "acknowledged" in presentence report)
• Altes (3/1/05) (dictum that finding of likely future criminal conduct may be based on prior adult or juvenile criminal history; citation to Bledsoe)
• McNew (2/25/05) (prior convictions, including juvenile adjudication for possession of marijuana exempt from Blakely; citation to Carson)
• Abney (2/15/05) (juvenile adjudications are "prior convictions"; citation to Ryle)
• Williams (12/8/04) (prior convictions, including juvenile adjudication, support enhancement; without citation to authority)
• Holden (10/13/04) ("consistent adult and juvenile criminal history" not subject to Blakely; citation to Blakely)

Links to the cases are in the sidebar. I'll get to the probation cases presently.

Disclosure: I may be involved in the preparation for the oral argument on Ryle's side. Of course, that may just mean that I come up with better reasons that the fact of a juvenile adjudication should be treated no differently from the fact of a prior conviction. At the moment, I'm not convinced. My immediate reaction is, "What part of 'conviction' don't you understand?" It seems to me that in light of the remaining uncertainties surrounding Blakely, a certain literalist approach, often applied by Blakely's author, is not out of place.

Of course, since April 25th, we are now merely dealing with pipeline cases. The one remaining decision that will affect a very large number of cases indeed concerns Blakely's retroactivity to cases on collateral review. Smylieseems to say there is none. But the question wasn't presented; and the U.S.Supreme Court has yet to speak.

Holder: Transfer & More on Searches & Private Property?

After oral argument, the Supreme Court has granted the State's petition to transfer in Holder, a case I mentioned in this post, because it was published the same day as Litchfield, the Supreme Court's most recent trash case, and interesting in light of Litchfield. (Holder was originally NFP, and Holder moved to have the decision published, which the Court of Appeals did over the State's opposition. If the publication status of an opinion is one of the principal considerations in transfer decisions, it escapes me why Holder, who won in the Court of Appeals, would have asked for publication. I think I'd have wanted to fly as low and slow as possible. But maybe there were good reasons.)

The oral argument in the Supreme Court on April 28th may be viewed via this link (Real Player). As Justice Sullivan noted during the argument, the Court of Appeals merely decided the search issue under Article 1, § 11 of the Indiana Constitution. If the Supreme Court is now going to affirm the denial of suppression, it is also going to have to address the fourth amendment issues.

The argument is quite interesting and worth a listen. I think we are going to get more, after Litchfield, about searches under the Indiana Constitution and private property.

Not Blakely, but interesting.

Heath is Here: ZZZzzzzzz . . . .

Well, Heath made its appearance today. Perhaps the Five were talking about some difference between it and Smylie, and decided to treat them the same. If not, there doesn't appear to be anything on the face of the opinion that would have prevented it from being issued together with Smylie.

In short, Heath adds nothing, although it does reiterate the State's option on remand of trying the aggravating circumstances to a jury.

The opinion also says nothing about the common law crimes or double jeopardy problems that may arise when treating aggravating circumstances as elements. The three aggravating circumstances recited in the opinion are:

1) the crime was committed in the presence of a person less than 18-years-old; 2) there were many unarmed observers in extreme danger nearby; and 3) the circumstances represented the “[w]orst type of Class D Criminal Recklessness facts.”

None of these are statutory aggravators. 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. Also, if these aggravators are now elements, Heath has already been convicted of the lesser offense that do not include these elements. Does the State get to go back and retry Heath for the now greater offense that includes these aggravators?

Perhaps Smylie and Heath implicitly decide these issues by remanding the cases for jury trials of the aggravators at the State's option. It seems to me that the issues are both presented by the cases, at least in the context of the court's actions in both, and important enough to warrant decision by discussion.

Florida on Retroactivity & Indiana on Notice: Some Juxtapositions

There have been two Blakely cases in Indiana today, but before I get to them (probably tomorrow), a decision from the Florida Supreme Court about Apprendi's retroactivity deserves some comment. The case is Hughes v. State (Fla. 4/28/05). (Thanks as always to Doug Berman at Sentencing Law & Policy in this post.) I only want to note for now the essence of the majority opinion's argument about why Apprendi should not be applied retroactively in Florida:

Apprendi affects only the procedure for enhancing the sentence. See United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.), cert. denied, 537 U.S. 939 (2002); see also State v. Tallard, 816 A.2d 977, 981 (N.H. 2003) (“Apprendi altered the procedure under which an enhanced sentence can be imposed. It did not affect the procedure for obtaining an accurate conviction on the underlying offense.”). Thus, Apprendi “does not rise to the level of importance of Winship.”

Slip op. at 14 (emphasis added).

To that passage, I now want to juxtapose a passage from the note in the March issue of the Harvard Law Review arguing for Blakely's full retroactivity:

It could be argued that Apprendi need not apply retroactively because it extends Winship's holding only to "sentencing factors" rather than to "elements" of the crime. But this argument forgets that Apprendi eliminates this distinction for constitutional purposes. Because due process requires that all "facts that expose a defendant to a punishment greater than that otherwise legally proscribed" must be proved beyond a reasonable doubt, it is difficult indeed to argue that punishments imposed in violation of Apprendi's requirement can stand. Because all of these sentences are shrouded by the constitutional doubt that attends a punishment imposed solely on the basis of a preponderance of the evidence, even the strongest interests in finality cannot justify continued imprisonment of these defendants.

Note, Rethinking Retroactivity, 118 Harv. L. Rev. 1642, 1659 (2005) (emphasis added) (footnote omitted).

I think the point is, after both Apprendi and Blakely, sentencing is no longer "just sentencing." The sixth amendment jury trial right may be "procedural"; the fourteenth amendment requirement of proof of the elements beyond a reasonable doubt is something else. (According to the note, by the way, Winship was the last case to be given full retroactivity by the U.S. Supreme Court. That was interesting news to me.)

As I read the Blakely cases here and there, the fourteenth amendment aspects are given little attention; and the issues arising under the Fourteenth Amendment are probably going to have to be dealt with in the second wave of appeals after the remands.

That's not to say that sixth amendment aspects that do get all the attention get the attention they deserve. Just today, one creative panel of the the Indiana Court of Appeals said:

Specifically, Huffman asserts that Blakely requires that he be provided notice of each specific aggravating factor the State intends to introduce.

. . . .

While this argument is creative, we are not persuaded. First, 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.

Huffman v. State (Ind. Ct. App. May 2, 2005) (Judges Sullivan, Baily, and Mathias). Juxtapose this with the following snippet from Blakely:

Any evaluation of Apprendi's "fairness" to criminal defendants must compare it with the regime it replaced, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment . . .

(Emphasis added). And with this from Apprendi:

We there noted [in Jones v. United States (1999)] that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any 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." Id., at 243, n. 6. The Fourteenth Amendment commands the same answer in this case involving a state statute.

(Emphasis added). And, since some judges, including judges on the Indiana Court of Appeals, have been looking to Booker to provide the "context" for Blakely, add this passage from Justice Breyer's remedial opinion:

The Court's constitutional jury trial requirement, however, if patched onto the present Sentencing Act, would move the system backwards in respect both to tried and to plea-bargained cases. In respect to tried cases, it would effectively deprive the judge of the ability to use post-verdict-acquired real-conduct information; it would prohibit the judge from basing a sentence upon any conduct other than the conduct the prosecutor chose to charge; and it would put a defendant to a set of difficult strategic choices as to which prosecutorial claims he would contest.

(Emphasis added).

Yet another imaginative panel of the Court of Appeals had this to say in a footnote (which is the first time an Indiana appellate court has sidled up to the issue of aggravating circumstances as elements and deserves more comment in a separate post):

The concern has been raised that Blakely’s reasoning may eventually require judges to adhere strictly to specifically enumerated aggravating circumstances as provided by statute and prohibit the use of judicially-created aggravating circumstances, on the basis that recognition of an aggravating circumstance after the commission of a crime would violate due process notice guarantees. Blakely itself, however, did not address due process concerns and we decline to read into a prohibition against any use of judicially-created aggravating circumstances.

Young v. State (Ind. Ct. App. May 2, 2005) (Judges Barnes, May, and Darden). Juxtapose the snippets from Booker, Blakley, and Apprendi above.

Note also that Judge Barnes, who wrote Young, was also one of the two Indiana appellate judges to say Booker had "clarified" and "limited" Blakely. See Edwards v. State (Ind. Ct. App. 2/28/05) (Barnes, J., dissenting). Yet in this opinion, right or wrong about the very important result relegated to a footnote, Judge Barnes goes no farther afield than Blakely. (I think even in Blakely relevant "due process concerns" can certainly be found in at least the following: "If there is any difference between bargaining over sentencing factors and bargaining over elements, the latter probably favors the defendant. Every new element that a prosecutor can threaten to charge is also an element that a defendant can threaten to contest at trial and make the prosecutor prove beyond a reasonable doubt." (Emphasis added).)

As I said to Judge Wood in my only oral argument in the Seventh Circuit (and my only oral argument ever): "Your Honor, I'm not making this up."

More on Misunderstanding Booker by the States

Recall in this post that I suggested (or more than) that in Gomez, the Tennessee Supreme Court had completely misunderstood Booker and that I attributed the misappropriation to a misreading of the following passage from Justice Stevens' majority opinion:

If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. See Apprendi, 530 U. S., at 481; Williams v. New York, 337 U. S. 241, 246 (1949). Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges; it is that circumstance that makes the Court's answer to the second question presented possible. For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.

The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.

I also noted that it seemed to me, judging from the oral arguments in Towne and Black, a majority of the California Supreme Court seemed to take this passage to mean that Blakely does not apply to California's sentencing regime of lower, middle, and upper terms.

Prodded by one of the lawyers involved in the Gomez rehearing, I have done a less than comprehensive hunt for other courts that have taken the the quoted passage from Booker as a basis to say that Blakely does not apply to a state sentencing regime. It looks like at least two districts of the California Court of Appeals have taken the wrong fork in the road, albeit in unpublished decisions, as well as one district of the Ohio Court of Appeals in a published decision.

The California cases are People v. Lopez, (Cal. App Dist. 2, Div. 6 March 29,2005) (mem.) and People v. Wright, (Cal. App. 5th Dist. Jan. 18, 2005) (mem.) (no link available). Lopez takes flight from the Booker passage as follows:

The upper term is not rendered an extraordinary sentence merely because the court must impose the middle term unless there are factors in aggravation. Although there is language in Blakely which, if taken out of context, would preclude the court from relying on any factor not found true by the jury, Blakely did not eliminate judicial discretion or judicial fact finding for the purpose of selecting a sentence within the permissible range.

It goes on to quote the Booker passage and take the entire range of lower, middle, and upper terms as "the permissible range," in its language.

Footnote 12 from Wright says the following:

Our conclusion finds support in the recent amplification of Apprendi - Blakely found in United States v. Booker (Jan 12, 2005, No. 04-104) 543 U.S. ___ [2005 WL 50108]. We distill from Booker the following refinement for our present purposes: If a fact necessarily results in a higher sentence, the fact must be admitted by defendant or found by the jury. Because California's sentencing law vests in the trial court discretion to choose the upper or middle term even where aggravating factors are found which preponderate, the present sentence is constitutionally permitted.

(Emphasis added).

There may be many more California cases of the same ilk. The California Court of Appeals' Blakely productions is prodigious--almost all of it, recently, unpublished, probably either in deference to or fear of the decisions to come in Towne and Black from the California Supreme Court.

The Ohio case is State v. Combs, 2005 Ohio 1923 (Oh. Ct. App 12th Dist. April 25, 2005). After quoting the Booker passage, the court adds this rather curious summarization: "The Supreme Court found that the Guidelines, when mandatory, violated Blakely because they permit a sentencing court, upon the postconviction finding of additional facts, to impose a sentence in excess of the statutory maximum authorized by the jury verdict. Booker, 125 S.Ct. at 751." The Guidelines "when mandatory . . . permit"?

Ohio sentencing appears to be a complicated affair, and perhaps I have gotten it wrong. But as I understand the opinion Combs does use the Booker passage to say that Blakely does not apply to Ohio sentencing.

So we have one state, Tennessee, derailed by Booker, and two others, California and Ohio, apparently set to run off the tracks. I'd say the Booker passage packs quite a punch, although, in my estimation, it's a low blow.

If anyone know of other states or other important decisions from these states that do the same thing, send word.