Updating my post from yesterday evening (the second post down) on the impact of Blakely on Indiana state courts, Michael R. Limrick of McTurnan & Turner, Indianapolis, has been kind enough to provide me with a requested copy of his April 2003 Res Gestae article: "Overlooked consequences of Apprendi: the unconstitutionality of Indiana's non-capital sentencing." A quote from page 21 of the article (access the full article here):
Determining whether Indiana's non-capital sentencing scheme is constitutional under Apprendi requires answers to two key questions:Posted by Marcia Oddi at July 22, 2004 10:39 AM
(1) At the moment the jury tenders its verdict, what is the maximum penalty that may be imposed on the defendant before any other action is taken?
(2) Is the defendant's sentence then increased beyond that maximum penalty based upon a fact -- other than the fact of a prior conviction -- that is found by the court, not the jury?