July 31, 2004

Indiana Decisions - Overview of Blakely in the 7th Circuit and in Indiana State Courts, Part II

Part II. Blakely in Indiana State Courts

With all the focus on the impact of Blakely on the federal sentencing guidelines, and on the federal district court and appeals court activites, it is easy to forget that Blakely v. Washington was an appeal from a state court and involved state law.

The State of Washington has sentencing guidelines, similar the federal guidelines. Washington's SENTENCING REFORM ACT OF 1981 (Chapter 9.94A RCW) is available here.

To see the guideines in operation, I found it useful to read the following paragraphs from near the beginning of the U.S. Supreme Court's decision in conjunction with the provisions of the Washington Sentencing Reform Act cited. Although, as the Court notes in footnote 1, "parts of Washington's criminal code have been recodified and amended", it is not difficult to identify the referenced provisions:

The case then proceeded to sentencing. In Washington, second-degree kidnaping is a class B felony. § 9A.40.030(3). State law provides that "no person convicted of a [class B] felony shall be punished by confinement . . . exceeding . . . a term of ten years." § 9A.20.021(1)(b).

Other provisions of state law, however, further limit the range of sentences a judge may impose. Washington's Sentencing Reform Act specifies, for petitioner's offense of second-degree kidnaping with a firearm, a "standard range" of 49 to 53 months. See § 9.94A.320 (seriousness level V for second-degree kidnaping); App. 27 (offender score 2 based on § 9.94A.360); § 9.94A.310(1), box 2-V (standard range of 13-17 months); § 9.94A.310(3)(b) (36-month firearm enhancement).

A judge may impose a sentence above the standard range if he finds "substantial and compelling reasons justifying an exceptional sentence." § 9.94A.120(2). The Act lists aggravating factors that justify such a departure, which it recites to be illustrative rather than exhaustive. § 9.94A.390. Nevertheless, "[a] reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the offense." * * *

Pursuant to the plea agreement, the State recommended a sentence within the standard range of 49 to 53 months. After hearing Yolanda's description of the kidnaping, however, the judge rejected the State's recommendation and imposed an exceptional sentence of 90 months -- 37 months beyond the standard maximum. He justified the sentence on the ground that petitioner had acted with "deliberate cruelty," a statutorily enumerated ground for departure in domestic-violence cases. § 9.94A.390(2)(h)(iii) .

In short, Blakely pled guilty to the kidnapping of his estranged wife. The general penalty for second-degree kidnapping, a Class B felony, was up to 10 years. However, the presumptive sentence for the facts admitted in his plea was 49 to 53 months. The law in Washington State allows the trial judge to enhance this sentence. After making a judicial determination that Blakely had acted with deliberate cruelty, the judge added an additional 37 months to the statutory maximum of 53. Blakely appealed, "arguing that this sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence."

Presumptive sentencing is a compromise between legislatively mandated determinate and indeterminate sentences. It allows a judge to retain some sentencing discretion (subject to judicial review). The Washington case is an example of how the statute sets the sentencing range (up to 10 years for kidnapping) and the typical sentence for the facts admitted or found by the jury (here 49 to 53 months). At the sentencing stage, the Washington statute allowed the judge to modify the presumptive sentence by finding mitigating or aggravating circumstances.

However, the Supreme Court ruled that the facts supporting the judge's finding of "deliberate cruelty" were "neither admitted by petitioner nor found by a jury." In Apprendi v. New Jersey (2000) the Court had "concluded that the defendant's constitutional rights had been violated because the judge had imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding." Here the State argued "that there was no Apprendi violation because the relevant 'statutory maximum' is not 53 months, but the 10-year maximum for class B felonies." But the Court said no: "[T]he relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings."

Indiana is not a sentencing guidelines state. A dozen or more states have formal sentencing guidelines akin to those of the State of Washington and the Federal Guidelines. Indiana does not fall into this category.

However, to choose a situation close to that in Washington State, Indiana's IC 35-42-3 applies to kidnapping and criminal confinment. IC 35-42-3-3(a) classifies the offense as a Class D felony. Subsection (b) provides that the offense is a Class B felony if it is: (A) committed while armed with a deadly weapon.

IC 35-50-2 concerns sentences for felonies, including murder. IC 35-50-2-1 defines "minimum sentence" as: (3) for a Class B felony, six years; and (5) for a Class D felony, one-half year.

IC 35-50-2-5, Class B Felony:

A person who commits a Class B felony shall be imprisoned for a fixed term of ten (10) years, with not more than ten (10) years added for aggravating circumstances or not more than four (4) years subtracted for mitigating circumstances; in addition, he may be fined not more than ten thousand dollars ($10,000).
IC 35-50-2-7(a), Class D Felony:
(a) A person who commits a Class D felony shall be imprisoned for a fixed term of one and one-half (1 1/2) years, with not more than one and one-half (1 1/2) years added for aggravating circumstances or not more than one (1) year subtracted for mitigating circumstances. In addition, he may be fined not more than ten thousand dollars ($10,000).
Finally, IC 35-38 is titled "Proceedings following dismissal, verdict, or finding." IC 35-38-1 deals with "Entry of judgment and sentencing." IC 35-38-1-7.1 deals with sentencing factors. Subsection (b) is the list of "aggravating factors."

Putting this all together, if Mr. Blakely pled guilty in Indiana to armed criminal confinement (IC 35-42-3-3-(b)), he would be pleading to a Class B felony. Under IC 35-50-2-5, a person who pleads guilty to, or is convicted of, a Class B felony shall be imprisoned for 10 years (the presumptive sentence), "with not more than 10 years added for aggravating circumstances or not more than 4 years subtracted for mitigating circumstances."

Arguably, although the format of the Indiana law differs from that of the Washington State law, the end result is the same -- at the sentencing stage each law allows a judge to modify the presumptive sentence by finding specified mitigating or aggravating circumstances. The U.S. Supreme Court in Blakely said that the Washington State law violated the defendant's "constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence."

What have the Indiana courts said? A brief look at what the Indiana courts have said since the U.S. Supreme Court's 2000 decision in Apprendi may indicate what to expect in the future.

In Aaron Rodriguez v. State (4/7/03 IndCtApp, trans. denied), Judge Riley, beginning on page 7, gives a review of the modern changes in sentencing in Indiana, noting that "In 1976, our General Assembly abolished jury sentencing by declaring that 'the court shall fix the penalty of and sentence a person convicted of an offense.'” The opinion then goes through the development of what is now IC 35-38-1-7.1, a "standard set of factors [that] was designed to bring uniformity to sentencing." The trial court's responsibility is summed up beginning on page 16:

When considering the appropriateness of the sentence for the crime committed, courts should initially focus upon the presumptive sentence. Hildebrandt v. State, 770 N.E.2d 355, 361 (Ind. Ct. App. 2002), trans. denied. Trial courts may then consider deviation from the presumptive sentence based upon a balancing of the factors which must be considered pursuant to I.C. § 35-38-1-7.1(a) together with any discretionary aggravating and mitigating factors found to exist. Hildebrandt, 770 N.E.2d at 361.

The presumptive sentence is meant to be the starting point for the trial court’s consideration of the sentence that is appropriate for the crime committed. See Lander v. State, 762 N.E.2d 1208, 1214-15 (Ind. 2002). In the present case, Rodriguez pled guilty to the charge of operating a vehicle while intoxicated causing death, a Class C felony. The nature of the offense specifically takes into account that a death occurred as a result of driving while intoxicated. See I.C. § 9-30-5-5(a)(3). The presumptive sentence for a Class C felony is four years, with not more than four years added for aggravating circumstances, and not more than two years subtracted for mitigating circumstances. See I.C. § 35-50-2-6.

Note that there is no mention of Apprendi in this opinion.

In Leone v. State (10/22/03 IndSCt) Apprendi is mentioned on pages 10-11. In this case (as in more than 90% of criminal cases, including the defendants in both Blakely and Apprendi) there was no trial; Leone pled guilty. In the appeal, Chief Justice Shepard writes:

Leone contends that he was sentenced to life without parole under a facially and structurally unconstitutional statutory sentencing scheme, citing Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

In Apprendi, the U.S. Supreme Court held unconstitutional a statute that allowed trial courts to extend the traditional sentencing scheme when they involved hate crimes. See Apprendi, 530 U.S. at 468-97. The Court stated, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. In Ring, the Court applied Apprendi to capital cases, holding that the aggravating circumstances had to be determined by a jury. Ring, 536 U.S. at 609. Neither case, however, addresses its application when the defendant issues a guilty plea and waives his right to a jury trial, as the State properly argues. With a plea of guilty, Leone forfeits claimed entitlement to certain rights including the right to a jury trial. See Id. at 334-35; Mapp v. State, 770 N.E.2d 332, 334 n. 3 (Ind. 2002).

Neither Apprendi nor Ring suggests that a defendant is not entitled to waive his right to a jury trial. The trial court found that Leone’s guilty plea was made freely and voluntarily, and that a factual basis for the plea existed. The trial court, in fact, questioned Leone several times to ensure that he understood his rights and was fully aware that he waived those rights. We conclude that Leone’s sentence does not conflict with Apprendi or Ring.

[emphasis added]

Access Part I of this article, Overview of Blakely in the 7th Circuit Courts, here.

Posted by Marcia Oddi at July 31, 2004 10:24 PM