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September 29, 2004

Hoosier handling of Blakely issues

A few Hoosier FOBs ("friends of blog") sent me news of interesting developments from Indiana which reveal ways in which state courts are adapting procedurally and substantively to the "Blakely earthquake."

One Hoosier reported that the Indiana "state judges had a recent conference during which Blakely was discussed [and a] 'Blakely Procedure' memo is apparently the result in Howard County." That memo, which can be downloaded below, seems to provide for jury trials to have a "second sentencing phase" and also says a "court shall not accept a plea of guilty without first determining that the defendant has been informed that by pleading guilty, the defendant waives the right to have a jury determine the aggravating circumstances."
Download indiana_blakely_procedure.pdf

In addition, yesterday the Indiana Court of Appeals handed down Bledsoe v. State, No. 49A05-0311-CR-586 (Ind. App. Ct. Sept. 28, 2004) (available here). In Bledsoe, the court gives the "prior conviction" exception a broad reading to avoid having to reverse an "enhanced sentence:"

Bledsoe asks this court to find — pursuant to Blakely — that his sentence violated his Sixth Amendment right to have the facts supporting the enhancement of his sentence tried to a jury.... In this instance, Bledsoe acknowledges that the trial court sentenced him to twelve years — two years beyond the presumptive — for committing the offense of burglary as a class B felony. In so doing, the trial court relied upon Bledsoe's prior criminal history, noted that his rehabilitation could only occur in a penal institution, that he was on probation at the time of the offense, and that the trial court believed that Bledsoe would continue to engage in criminal activities. [P]rior convictions shown by a defendant's criminal history are exempt from the Apprendi rule as clarified by Blakely [and] the remaining aggravating circumstances in Bledsoe's case merely derive from his criminal history. Thus, the Blakely analysis is not implicated. Finally, there is no indication that Bledsoe objected to the contents of the pre-sentence investigation report.

In any event, it has been determined that a single aggravating circumstance will justify a sentence enhancement. That said, even if our supreme court were to find that Indiana's sentencing scheme runs afoul of the Sixth Amendment for the reasons that were articulated in Blakely, such a determination would have no effect on Bledsoe's sentence.

September 29, 2004 at 12:35 PM | Permalink


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The problem with the Howard County "solution" is a familiar one: Indiana law does not provide for juries to determine the presence of aggravators (outside of the capital sentencing or habitual offender context). Right now, the law directs judges to make those determinations.

Posted by: Mike Limrick | Sep 29, 2004 1:05:56 PM

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