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noting that an attorney is not required to anticipate changes in the law in order to be effective
Summary of this case from Ryan v. StateOpinion
No. 49A05-0707-PC-391.
May 9, 2008.
Appeal from the Superior Court, Marion County, Robert R. Altice, J.
Susan K. Carpenter, Public Defender of Indiana, Victoria Christ, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
I respectfully dissent. First, our supreme court has established a liberal approach permitting defendants with Blakely claims, whose counsels otherwise would have waived those claims under prior Indiana legal precedent, opportunity to litigate their claims; and secondly, when Kendall's counsel's performance is compared to the diligent work of other attorneys representing clients similarly situated with arguable Blakely claims, it is apparent that Kendall's counsel's performance fell below prevailing professional norms. I would conclude that fairness requires we find Kendall's appellate counsel ineffective in this situation.
That being said, having reviewed the timeline of Kendall's direct appeal, and compared it to the progression of Indiana case law applying Blakely, I can understand the reasoning relied upon by the post-conviction court and now the majority to determine that Kendall's appellate counsel was not ineffective. Typically, appellate counsel cannot be held ineffective for failing to anticipate or effectuate a change in the existing law. Conception v. State, 796 N.E.2d 1256, 1260 (Ind.Ct.App. 2003), trans. denied. At the time when Kendall's counsel chose not to attempt to raise a Blakely claim by way of amendment, petition for rehearing, or petition for transfer, the existing law included the requirement of preservation of issue by objection at the defendant's trial. See Smylie, 823 N.E.2d at 688. Further, the existing law was that issues raised for the first time on rehearing or transfer are usually considered waived. Carson v. State, 813 N.E.2d 1187, 1188-89 (Ind.Ct.App. 2004).
However, our supreme court has held that the typical procedural considerations do not apply to this period of time between Blakely and Smylie. See Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005). For example, comparing our supreme court's decisions in Smylie and Kincaid to federal decisions, it is apparent that our state has chosen a more liberal course in providing opportunity for defendants to raise Blakely claims. In United States v. Booker, 543 U.S. 220, 268, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the federal counterpart to Blakely wherein the Supreme Court held that the Sixth Amendment as construed by Blakely applied to the federal sentencing guidelines, the Supreme Court acknowledged its prior precedent from Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), requiring application of its remedial interpretation of the sentencing guidelines to all cases on direct review. However, the Booker Court explained further that, "we expect reviewing courts to apply ordinary prudential doctrines, determining for example, whether the issue was raised below." Id.
In its own application of Blakely to petitioners' claims in Pasquantino v. United States, 544 U.S. 349, 372 n. 14, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005), the Supreme Court refused to consider an argument that Blakely applied because the "[p]etitioners did not raise [the] claim before the [c]ourt of [a]ppeals or in their petition for certiorari." The Supreme Court reached this ruling in spite of the fact that the petitioners had filed the petition for certiorari before the issuance of Blakely. See id. at 377 n. 5, 125 S.Ct. 1766 (Ginsburg, J., dissenting).
The Eleventh Circuit Court of Appeals has taken a firm stance that Blakely and Booker issues not raised in an initial brief will not be considered, in keeping with its "prudential rule." United States v. Higdon, 418 F.3d 1136, 1137 (11th Cir. 2005); see also United States v. Levy, 391 F.3d 1327, 1328 (11th Cir. 2004). The Fifth Circuit Court of Appeals reconsidered an appeal of a sentence in light of Booker after instruction to do so on remand from the Supreme Court but, nonetheless required the appellant to show a possibility of injustice so grave as to warrant disregard of usual procedural rules because the appellant had not raised the Booker claim before filing his petition for certiorari. United States v. Ogle, 415 F.3d 382, 384 (5th Cir. 2005). Finding no such showing by the appellant, the Ogle court declined to consider the merits of Ogle's Booker challenge. Id.
I gather from our supreme court's more liberal stance on providing opportunity for appellants to raise Blakely claims, that our consideration of Kendall's post-conviction proceedings should be influenced by the same liberal considerations. Moreover, I believe that the proper way to analyze Kendall's counsel's effectiveness here is to determine whether "her performance fell below an objective standard of reasonableness based on prevailing professional norms." Johnson v. State, 832 N.E.2d 985, 996 (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). I conclude that the proper method to determine professional norms in this instance is by comparison of Kendall's counsel's performance to the performance of other counsel representing Indiana appellants with ongoing direct appeals after the issuance of the Blakely decision prior to our supreme court's decision in Smylie.
A review of published opinions considering Blakely challenges reveals multiple appellants who raised Blakely claims via amended briefs that were filed, not only prior to Smylie, but also prior to our initial application of Blakely to Indiana's sentencing scheme in Krebs on October 20, 2004. In Strong v. State, 817 N.E.2d 256 (Ind.Ct.App. 2004), affirmed on reh'g, trans. denied, over the State's arguments that Strong had waived any Blakely claim by failing to object before the trial court, we considered Strong's claim that his Sixth Amendment rights had been violated. Strong's appellate counsel filed his initial brief prior to the issuance of Blakely. Thereafter, on July 27, 2004, Strong's counsel sought and received permission to file an amended brief. In Traylor v. State, 817 N.E.2d 611 (Ind.Ct.App. 2004), trans. denied, Traylor's counsel filed the initial appellate brief well before the decision in Blakely. Then on July 27, 2004, our court granted Traylor permission to file his amended brief to discuss the applicability of Blakely. Again, in Trusley v. State, 829 N.E.2d 923, 927 (Ind. 2005), our supreme court remanded the case to the trial court because of three aggravating factors relied upon to enhance Trusley's sentence, "none . . . [could] be supported by facts found according to the procedural dictates mandated by Blakely." Id. In our prior decision, which was vacated by our supreme court's consideration on transfer, we explained that "Trusley's brief was submitted in May of 2004, before Blakely was decided. She moved to amend her brief so she could address Blakely, and we granted her motion." Trusley v. State, 818 N.E.2d 110, 111 n. 5 (Ind.Ct.App. 2004), trans. granted, opinion vacated. Once more, in Teeters v. State, 817 N.E.2d 275 (Ind.Ct.App. 2004), trans. denied, Teeters' counsel filed his initial brief prior to the Court's decision in Blakely. Thereafter, on July 28, 2004, her counsel sought permission to submit an amended brief, which was granted on August 6, 2004. Ultimately, Teeters' Blakely claim was unsuccessful on its merits, but nonetheless, her counsel sought and was granted permission to pursue a Blakely claim although it had not been raised in Teeters' initial brief. Finally, in Riehle v. State, 823 N.E.2d 287 (Ind.Ct.App. 2005), trans. denied, the initial appellant's brief was filed on June 8, 2004, and Riehle's counsel sought permission to file an amended brief on July 22, 2004, which was granted on August 24, 2004. Over the State's objection that Riehle had waived his Blakely claims, we concluded that the trial court had impermissibly found four aggravators that should have been submitted to a jury. Riehle, 823 N.E.2d at 298.
Online docket, case no., 49A02-0401-CR-25, http://hats.courts.state.in.us/ISC3RUS/ISC2search.jsp, reviewed April 2, 2008.
Id.
Online docket, case no., 63A04-0309-CR-466, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jspQrow=0, reviewed April 2, 2008.
Id.
Online docket, case no., 69A01-0312-CR-487, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=0, reviewed April 2, 2008.
Id.
Online docket, case no., 15A05-0311-CR-00557, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=0, reviewed April 2, 2008.
There were also several appellants who raised Blakely claims via petitions for re-hearing that were filed before our decision in Krebs. In Wickliff v. State, 816 N.E.2d 1165, 1166 (Ind.Ct.App. 2004), decision on reh'g, we considered Wickliff's Blakely claim, which was raised for the first time in a Petition for Rehearing filed on August 16, 2004. In Carson v. State, 813 N.E.2d 1187, 1189 (Ind.Ct.App. 2004), decision on reh'g, we considered Carson's Blakely claim on its merits despite the fact that we found Carson had technically waived his Blakely claim by not making any challenge to his sentence on direct appeal. Carson's counsel pursued the Blakely claim in his Petition for Rehearing filed July 12, 2004, more than two months prior to our decision in Krebs. Again in Cowens v. State, 817 N.E.2d 255 (Ind.Ct.App. 2004), decision on reh'g, Cowens' counsel raised his Blakely claim for the first time in his Petition for Rehearing filed on July 21, 2004. Cowens' Blakely claim was unsuccessful, but was considered on its merits due to the diligence of his counsel. Id. Once more, in Aguilar v. State, 820 N.E.2d 762, 763 (Ind.Ct.App. 2005), decision on reh'g, trans. granted, and opinion vacated by Aguilar v. State, 827 N.E.2d 31 (Ind. 2005), cert. denied, 547 U.S. 1058, 126 S.Ct. 1660, 164 L.Ed.2d 403 (2006), Aguilar's counsel argued for the first time on rehearing that Aguilar's Sixth Amendment rights, as announced in Blakely, had been violated. We agreed and remanded to the trial court for resentencing. Our initial opinion had been issued on July 9, 2004, and Aguilar filed his Petition for Rehearing on July 19, 2004. However, our supreme court concluded that Aguilar had waived his Blakely claim, because unlike Kendall, Aguilar had not appealed his sentence in any way prior to petitioning for rehearing. Aguilar, 827 N.E.2d at 32
Online docket, case no, 41A01-0401-CR-27, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=0, reviewed April 11, 2008.
Online docket, case no., 49A04-0310-CR-494, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jep?row=0, reviewed April 2, 2008.
Online docket, case no., 01A02-0312-CR-01048, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=0, reviewed April 2, 2008.
Online docket, case no., 49A05-0307-CR-370, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=9, reviewed April 2, 2008.
In addition, a review of published opinions reveals that several appellants argued Blakely claims in their initial appellant's briefs filed prior to, not only Smylie, but also Krebs, although no objection had been made before the trial court to preserve the error as typically required. See Williams v. State, 818 N.E.2d 970 (Ind.Ct.App. 2004), trans. granted, opinion vacated by Williams v. State, 838 N.E.2d 1019 (Ind. 2005); Milligan v. State, 819 N.E.2d 115 (Ind.Ct.App. 2004); Ryle v. State, 819 N.E.2d 119 (Ind.Ct.App. 2004), trans. granted, opinion vacated by Ryle v. State, 842 N.E.2d 320 (Ind. 2005); Patrick v. State, 819 N.E.2d 840 (Ind.Ct.App. 2004), trans. granted, opinion affirmed in part, vacated in part by Patrick v. State, 827 N.E.2d 30 (Ind. 2005); Mitchell v. State, 821 N.E.2d 390 (Ind.Ct.App. 2004), trans. granted, opinion vacated by Mitchell v. State, 844 N.E.2d 88 (Ind. 2006); Golds-berry v. State, 821 N.E.2d 447 (Ind.Ct.App. 2005); Pennington v. State,
Williams filed his initial appellant's brief on July 6, 2004. Online docket, case no., 49A02-0402-CR-114, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=3, reviewed April 11, 2008.
Milligan filed his initial appellant's brief on July 26, 204. Online docket, case no., 14A05-0403-CR-166, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jep?row=0, reviewed April 11, 2008.
Ryle filed his initial appellant's brief on September 10, 2004. Online docket, case no., 49A02-0405-CR-423, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row= 12, reviewed April 11, 2008.
Patrick filed his initial appellant's brief on August 30, 2004. Online docket, case no., 71A03-0407-CR-312, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jep?row=0, reviewed April 11, 2008.
Mitchell filed his initial appellant's brief on July 16, 2004. Online docket, case no., 49A05-0312-CR-625, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=2, reviewed April 11, 2008.
Goldsberry filed his initial appellant's brief on July 27, 2004. Online docket, case no., 40A05-0404-CR-204, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=0, reviewed April 11, 2008.
821 N.E.2d 899 (Ind.Ct.App. 2005); Stott v. State, 822 N.E.2d 176 (Ind.Ct.App. 2005); Padilla v. State, 822 N.E.2d 288 (2005); McNew v. State, 822 N.E.2d 1078 (Ind.Ct.App. 2005); Edwards v. State, 822 N.E.2d 1106 (Ind.Ct.App. 2005). In addition, in Berry v. State, 819 N.E.2d 443 (Ind.Ct.App. 2004), Berry advanced an argument that his Blakely rights had been violated, although I cannot ascertain from the opinion whether an objection had preserved the issue before the trial court. That being said, I would doubt that such an objection was made.
Pennington filed his initial appellant's brief on July 23, 2004. Online docket, case no., 49A02-0404-CR-309, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=4, reviewed April 11, 2008.
Stott filed his initial appellant's brief on September 16, 2004. Online docket, case no., 49A04-0405-CR-285, http;//hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=5, reviewed April 11, 2008.
Padilla filed his initial appellant's brief on August 23, 2004. Online docket, case no., 49A04-0404-CR-308, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=3, reviewed April 11, 2008.
McNew filed his initial appellant's brief on August 6, 2004. Online docket, case no., 73A01-0404-CR-176, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=0, reviewed April 11, 2008.
Edwards filed his initial appellant's brief on July 14, 2004. Online docket, case no., 49A05-0401-CR-61, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=7, reviewed April 11, 2008.
Berry filed his initial appellant's brief on July 26, 2004. Online docket, case no., 49A04-0402-CR-122, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=9, reviewed April 11, 2008.
Moreover, in Smylie, Smylie did not raise a Blakely claim in his initial appellate brief. The Supreme Court's decision in Blakely was not issued until after we had denied Smylie's Petition for Rehearing on June 15, 2005. Thus, it is apparent that Smylie did not raise his Blakely claim until he filed his petition seeking transfer to our supreme court on July 15, 2004, months prior to our opinion in Krebs.
Online docket, case no., 41A01-0309-CR-339, http://hats.courts.state.in.us/ISC3RUS/ISC2detail.jsp?row=0, reviewed April 2, 2008.
Regrettably, I must admit that time constraints prevent me from broadening my search to determine, for example, how many appellants presented arguments of Blakely violations on appeal without having objected before the trial court by filing briefs sometime between the issuance of Krebs, on October 20, 2004, and our supreme court's decision in Smylie on March 9, 2005. Nor have I searched our memorandum decisions to determine how many appellants whose appeals did not result in published opinions presented arguments of Blakely violations during relevant time periods. However, I am convinced from the results of my searches that a significant number of additional appellants presented such arguments prior to Smylie. I conclude that the abundance of other counsel advancing Blakely claims prior to our judiciary's application of Blakely to Indiana's sentencing scheme represents the prevailing professional norm at the time when Kendall's appellate counsel chose not to advance a Blakely claim on his behalf. See Johnson, 832 N.E.2d at 996. Moreover, the plethora of counsel raising Blakely claims during this time period also speaks for the significance and obviousness of the issue during this time period. See Ben-Yisrayl v. State, 738 N.E.2d 253, 261 (Ind. 2000). These recognitions, combined with our supreme court's stance that liberal opportunity must be given appellants to allow for consideration of Blakely violations, lead me to conclude that Kendall's appellate counsel's performance fell below the objective standard of reasonableness. See Johnson, 832 N.E.2d at 996. Fairness simply demands such a result.
I also would conclude that Kendall suffered prejudice caused by his appellate counsel's deficient performance. When considering aggravating factors to be used to enhance Kendall's sentence, the trial court determined that Kendall was in need of correctional or rehabilitative treatment best provided by a penal facility based on its review of Kendall's criminal history, which included the trial court's reference to two prior arrests of Kendall that did not result in convictions. It was improper for the trial court to rely upon Kendall's prior arrests that did not result in conviction without a finding by a jury or an admission by Kendall. See Duncan v. State, 857 N.E.2d 955, 959 (Ind. 2006) (citing Blakely, 542 U.S. at 301, 124 S.Ct. 2531). Additionally, the trial court's findings of the nature and circumstances of Kendall's crime violated Blakely. See Marshall v. State, 832 N.E.2d 615, 622-23 (Ind.Ct.App. 2005), trans. denied. "Where the use of some aggravators violates Blakely and others do not, we will remand for resentencing unless we can say with confidence that the trial court would have imposed the same sentence if it considered only the proper aggravators." Robertson v. State, 871 N.E.2d 280, 287 (Ind. 2007). Here, I would remand for resentencing. Accordingly, I would conclude that there is a reasonable probability that, but for counsel's failure to meet prevailing professional norms, the result of the proceeding would have been different. Johnson, 832 N.E.2d at 996.
For these reasons, I respectfully dissent.