August 20, 2004
Federal and state news in Indiana
Marcia Oddi over at the Indiana Law Blog has this interesting post about Blakely rulings and Blakely influenced outcomes in the Indiana federal courts.
And some of my other Hoosier friends have sent me today an interesting decision from a state court of appeals, Carson v. State, No. 49A04-0310-CR-494 (Ind. Ct. App. June 11, 2004), coming from a petition for rehearing. Here are the highlights from a short opinion which can be downloaded below:
Now Carson asks this Court to find—pursuant to the recently-decided Blakely v. Washington, 124 S. Ct. 2531 (2004)—that his sentence violates his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury. Given that Carson did not challenge his sentence on direct appeal, he has technically waived review of this issue, and the appropriate procedure would have been to challenge his sentence through post-conviction relief. Waiver notwithstanding, after considering the merits of Carson’s challenge, we find that Blakely has no effect on his enhanced sentence....
Indiana courts have not yet considered what effect, if any, the Blakely opinion may have on Indiana’s sentencing scheme. Carson urges us to find that his enhanced sentence is improper because the trial court "made factual findings and entered an enhanced sentence upon those findings" without requiring that a jury make those findings beyond a reasonable doubt. Those factual findings—or aggravating circumstances—consisted of the following: a history of criminal and delinquent activity, which includes multiple convictions; a need for corrective or rehabilitative treatment that can best be provided by incarceration in a penal institution or in a work release facility; and the strong likelihood that, based upon his criminal history, he will commit battery again. As to the first aggravator, the multiple convictions that the extensive criminal history comprises have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely. The other two aggravating circumstances are simply derivative of that extensive history of convictions and thus would seem also not to implicate the Blakely analysis. In any event, a single aggravating circumstance is adequate to justify a sentence enhancement. Therefore, even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, this finding would have no effect on Carson’s sentence.
Download carson_v. State.doc
August 20, 2004 at 06:43 PM | Permalink
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Carson is fascinating for any number of reasons. First, it is quite unusual in Indiana, though not unheard of, for an opinion on rehearing to be published when the original decision was not. The panel obviously wanted to get on the record in some way regarding Blakely. There have been perhaps 4 cases in published decisions of the Court of Appeals since June 24th in which something could have been said about Blakely--all in direct appeals--but the Court of Appeals remained silent. Not until Wilkie v. State, handed down a couple of days ago, had any Indiana appellate court mentioned Blakely.
In Wilkie, a panel of the Court of Appeals, without considering a Blakely claim, dropped the somewhat bizarre footnote: "On June 24, 2004, after briefing was completed in this case, the United States Supreme Court issued its opinion in Blakely v. Washington, -- U.S. --, 124 S. Ct. 2531 (2004). We are mindful of that decision, but we leave for another day whether and, if so, to what extent Blakely may affect a trial court’s finding of aggravators to support an enhanced sentence and our review of that sentence under Indiana Appellate Rule 7(B)." If Blakely affects appellate review of sentences in Indiana, why on earth leave it for another day?
Second, the utter timidity of the Indiana Court of Appeals in Carson should be astonishing, even after the Wilkie footnote. This panel apparently punts, saying it is up to the Indiana Supreme Court to decide what effect, if any, Blakely has on Indiana sentencing. The federal circuit courts of appeal, except for the Second and the Fifth, have not been trembling at the prospectof being reversed. Posner in Booker positively invites a reversal. And as has been pointed out in several places on this blog, it is a pity that the Second Circuit, at least, isn't willing to add it's insight to the pot for the eventual resolution of Booker, Fanfan, and whatever cases follow. It is similarly a pity that the Indiana Court of Appeals is apparently unwilling to take its job seriously, in the absence of controlling contrary authority, to say what the law is and take its chances on a response by the Indiana Supreme Court--and maybe even eventually by SCOTUS. (Remember, Blakely itself was a case from Washington's Court of Appeals and not its Supreme Court.) The Tennessee and Minnesota Courts of Appeal certainly have not been timid. Why Indiana?
Third, the Court of Appeals says that Carson did not raise the issue in his direct appeal, so he's waived the issue. That is a most odd pronouncement, since the rehearing decision *is* part of Carson's direct appeal. I do not know what Carson's lawyer or lawyers did, but the Court of Appeals has, by all reports, been permitting lawyers right and left to amend briefs in cases already briefed on June 24th. One lawyer reported today or yesterday that she had received permission to file amended briefs in eight cases. The Court of Appeals position, though not consciously, appears to be akin in this regard to the Eleventh Circuit's rejection of Blakely claims not made in opening briefs. Again, this raises the question of what it might mean to get the benefit of a new rule announced while your direct appeal is still not final, where a direct appeal is not final until the expiration of the time to file a cert petition.
Fourth, there is a footnote saying that Carson was sentenced in September 2003, but because of the way the case was being decided, the Court of Appeals did not have to reach the issue of Blakely's retroactivity. Yet again, Carson's case is a direct criminal appeal. This panel, at least, seems not to understand Griffith v. Kentucky.
Fifth, the cursory substantive discussion of Blakely and why it would have no effect on this case is open to at least serious question. The facts of prior convictions may not, for now, be subject to the Blakely / Apprendi rule, but it is not at all clear that Carson's juvenile delinquency adjudications, which are lumped together with prior adult convictions, are not. The Court of Appeals simply says that "the multiple convictions that the extensive criminal history comprises have already been proven beyond a reasonable doubt and are thus exempt from the Apprendi rule as clarified by Blakely." The juvenile adjudications were not proved to a jury beyond a reasonable doubt--though they may have been admitted--because delinquency proceedings in Indiana are bench trials.
Sixth, Indiana law requires a judge to consider a defendant's "criminal history" in imposing sentence. Although Posner in Booker speaks of criminal history and "the fact of a prior conviction" as if they were interchangeable, that interchangeablity does not obviously follow.
Seventh, there were two additional aggravating circumstances in Carson's case: Carson was in need of rehabilitative treatment best offered by a correctional facility and he was likely to commit battery again. The Court of Appeals says that these circumstances "are simply derivative of that extensive history of convictions convictions and thus would seem also not to implicate the Blakely analysis." Really? Those two aggravating circumstances do not look much like "the fact of a prior conviction."
Seventh, and finally, this was an opportunity for the Court of Appeals to take up the problem mentioned in the weird Wilkie footnote about the effect of Blakely on appellate review of sentences in Indiana. The case law is pretty clear that prior convictions alone do not, ipso facto, justify an enhanced sentence. But the Court of Appeals simply says that "a single aggravating circumstance *is* adequate to justify a sentence enhancement." (Emphasis added.) Well not always, and appellate review of sentences explicitly provided for in the Indiana Constitution and in the Indiana Appellate Rules. But the Court of Appeals does not review Carson's sentence: it just says one valid aggravator *is*, as a theoretical matter, enough. It does not say whether or why the specific aggravator was enough in this case.
It should be astonishing that such a short snippet of an opinion on rehearing, published after an original unpublished decision, should appear to duck in the first instance, then get so much plainly wrong, say so much that is highly questionable, and finally miss the one real opportunity to say something important about appellate review of sentencing in the post-Blakely universe.
Posted by: Michael Ausbrook | Aug 21, 2004 1:22:57 AM
But Michael, how do you really feel about the Carson decision? Seriously, this is wonderful analysis, and I appreciate your filling out everyone's understanding of what's going on in Carson. Thanks.
Posted by: Doug B. | Aug 21, 2004 9:03:54 AM
Ah, but implicit in the whole thing is an acknowledgment that Blakely/Apprendi probably does affect the sentencing system as a whole. For now, that's probably the best we can hope for. Nice work, Michael.
Posted by: Mike Limrick | Aug 24, 2004 6:43:32 PM