Blakely claim in Indiana

2020As the Court explained: In Smylie v. State, 823 N.E.2d 679 (Ind. 2005), we set forth parameters under which an appellant can raise a Blakely claim for the first time on appeal even if the appellant did not preserve such a claim by making an appropriate objection in the trial court.

2020As the Court explained: In Smylie v. State, 823 N.E.2d 679 (Ind. 2005), we set forth parameters under which an appellant can raise a Blakely claim for the first time on appeal even if the appellant did not preserve such a claim by making an appropriate objection in the trial court.

2020The new sentencing scheme still required trial courts to enter sentencing statements 4 In Kincaid v. State, 837 N.E.2d 1008 (Ind. 2005), our Supreme Court again allowed a defendant to raise a Blakely claim for the first time on appeal when the sentencing hearing occurred two weeks after Blakely was issued.

2020The new sentencing scheme still required trial courts to enter sentencing statements 4 In Kincaid v. State, 837 N.E.2d 1008 (Ind. 2005), our Supreme Court again allowed a defendant to raise a Blakely claim for the first time on appeal when the sentencing hearing occurred two weeks after Blakely was issued.

2008In 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. [14] 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.

2008In Wickliff v. State, 816 N.E.2d 1165, 1166 (Ind.Ct.App.2004), decision on reh’g, we considered Wickliffs Blakely claim, which was raised for the first time in a Petition for Rehearing filed on August 16, 2004. 14 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.

2006Johnson cites to the following statement from Cotto, 829 N.E.2d at 526 , "a record of arrests, particularly a lengthy one, may reveal that a defendant has not been deterred even after having been subject to the police authority of the State." Importantly, in Cotto, the defendant failed to raise a Blakely claim, and therefore, the court determined that any such claim was waived.

2006Johnson cites to the following statement from Cotto, 829 N.E.2d at 526 , "a record of arrests, particularly a lengthy one, may reveal that a defendant has not been deterred even after having been subject to the police authority of the State." Importantly, in Cotto, the defendant failed to raise a Blakely claim, and therefore, the court determined that any such claim was waived.

2005See id. (concluding that defendant forfeited Blakely claim where he failed to object at sentencing hearing and his case was not on direct review when Blakely was announced).

2005See id. (concluding that defendant forfeited Blakely claim where he failed to object at sentencing hearing and his case was not on direct review when Blakely was announced).

2005See, eg., Abney v. State, 822 NE2d 260, 268 (Ind.Ct.App.2005) (trial court's finding Abney committed his offense while on probation was a proper aggravator because it was derivative of Abney's criminal history, and consequently no Blakely analysis was triggered), trans. denied; and see Morgan v. State, 829 N.E.2d 12, 17 (Ind.,2005) (statements "derivative" of a defendant's criminal history cannot serve as separate aggravating circumstances but rather are "legitimate ob *1133 servations about the weight to be given to facts appropriately noted by a judge alone. ...").

2005In Morgan v. State, the court held that observations a court makes about facts admitted by the defendant or found by a jury "may reflect on the weight of acknowledged facts or prior convictions but are not themselves separate aggravators." 829 N.E.2d 12, 14, 17 (Ind.2005) ("We conclude that such statements, which our Court of Appeals has called 'derivative' of criminal history, are legitimate observations about the weight to be given to facts appropriately noted by a judge alone under Blakely.

2017See Robinson, 805 N.E.2d 783 (noting that in an earlier case, the Indiana Supreme Court had failed to rigorously apply the “erroneous on its face” standard in considering a double jeopardy claim raised in a motion to correct erroneous sentence); Fulkrod, 855 N.E.2d 1064 (refusing to consider appellant’s Blakely claim in a motion to correct erroneous sentence because the Court would be required to consider matters beyond the face of the sentencing order). [12] Twitty cites Lane v. State, 727 N.E.2d 454 (Ind. Ct. App. 2000), in support of his argument that the Court must consider his claims, but

2017But “a Blakely claim is not the type of claim which may be brought through a motion to correct erroneous sentence” because it would require us to “look beyond the face of the judgment to see if imposition of an enhanced Court of Appeals of Indiana | Memorandum Decision 71A05-1702-CR-415 | September 14, 2017 Page 5 of 11 sentence was based upon facts determined through constitutionally permissible channels.” Fulkrod, 855 N.E.2d at 1067 . [9] In addition, Mitchem argues that the trial court abused its statutory sentencing authority by ordering him to serve his fifty-five-year murder sentence con

2008In 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.

2005As has been stated in recent decisions by this court, as set forth in Strong v. State, 817 N.E.2d 256, 258-262 (Ind.Ct.App.2004), "Iwle reject the State's arguments that (1) [Defendant] has waived his Blakely challenge, and (2) Blakely does not implicate Indiana's sentencing scheme...." Patrick v. State, 819 N.E.2d 840, 847 (Ind.Ct.App.2004).

2005See Bledsoe v. State, 815 N.E.2d 507, 508 (Ind.Ct.App.2004), opinion on reh'g; Carson v. State, 813 N.E.2d 1187, 1189 (Ind.Ct.App.2004).

2005See Bledsoe v. State, 815 N.E.2d 507, 508 (Ind.Ct.App.2004), opinion on reh'g; Carson v. State, 813 N.E.2d 1187, 1189 (Ind.Ct.App.2004).

2005See Holden v. State, 815 N.E.2d 1049, 1060 (Ind.Ct.App.2004) (applying harmless error analysis to Blakely claim), trams. denied.

2005See Holden v. State, 815 N.E.2d 1049, 1060 (Ind.Ct.App. 2004), trans. denied.

2020In particular, our Supreme Court has held that “an appellate lawyer would not be ineffective for proceeding without adding a Blakely claim before Blakely was decided.” Walker v. State, 843 N.E.2d 50, 59 (Ind. Ct. App. 2006), trans. denied; cert. denied, 549 U.S. 1130 (2007).

2020In particular, our Supreme Court has held that “an appellate lawyer would not be ineffective for proceeding without adding a Blakely claim before Blakely was decided.” Walker v. State, 843 N.E.2d 50, 59 (Ind. Ct. App. 2006), trans. denied; cert. denied, 549 U.S. 1130 (2007).

2017See Robinson, 805 N.E.2d 783 (noting that in an earlier case, the Indiana Supreme Court had failed to rigorously apply the “erroneous on its face” standard in considering a double jeopardy claim raised in a motion to correct erroneous sentence); Fulkrod, 855 N.E.2d 1064 (refusing to consider appellant’s Blakely claim in a motion to correct erroneous sentence because the Court would be required to consider matters beyond the face of the sentencing order). [12] Twitty cites Lane v. State, 727 N.E.2d 454 (Ind. Ct. App. 2000), in support of his argument that the Court must consider his claims, but

2012Resolution of these issues, however, requires us to go beyond the face of the abstract of judgment.4 See Robinson, 805 N.E.2d at 786-87 (noting that a claim that the trial court imposed the maximum sentence in partial reliance upon improper aggravators is not appropriate for a motion to correct sentence); Fulkrod v. State, 855 N.E.2d 1064, 1067 (Ind. Ct. App. 2006) (noting that whether a sentence violates Blakely is not the type of claim that may be brought by a motion to correct erroneous sentence).

2008Strong’s appellate counsel filed his initial brief prior to the issuance of Blakely. 7 Thereafter, on July 27, 2004, Strong’s counsel sought and received permission to file an amended brief. 8 In Traylor v. State, 817 N.E.2d 611 (Ind.Ct.App.2004), tram, denied, Traylor’s counsel filed the initial appellate brief well before the decision in Blakely, 9 Then on July 27, 2004, our court granted Traylor permission to file his amended brief to discuss the applicability of Blakely. 10 Again, in Trusley v. State, 829 N.E.2d 923, 927 (Ind.2005), our supreme court remanded the case to the trial court be

2008Strong’s appellate counsel filed his initial brief prior to the issuance of Blakely. 7 Thereafter, on July 27, 2004, Strong’s counsel sought and received permission to file an amended brief. 8 In Traylor v. State, 817 N.E.2d 611 (Ind.Ct.App.2004), tram, denied, Traylor’s counsel filed the initial appellate brief well before the decision in Blakely, 9 Then on July 27, 2004, our court granted Traylor permission to file his amended brief to discuss the applicability of Blakely. 10 Again, in Trusley v. State, 829 N.E.2d 923, 927 (Ind.2005), our supreme court remanded the case to the trial court be

2007As for the former, “[b]y its own terms, and as consistently recognized by our cases analyzing Blakely , an enhancement based upon criminal history does not trigger a Blakely analysis.” Dillard v. State, 827 N.E.2d 570, 575 (Ind.Ct.App.2005), trans. denied.

2007As for the former, “[b]y its own terms, and as consistently recognized by our cases analyzing Blakely , an enhancement based upon criminal history does not trigger a Blakely analysis.” Dillard v. State, 827 N.E.2d 570, 575 (Ind.Ct.App.2005), trans. denied.

2006In Hope v. State, 834 N.E.2d 713, 717 (Ind.Ct.App.2005), we discussed a two-step process for analyzing a non-Blakely challenge to an enhanced sentence. [The first step is to determine whether the trial court issued a sentencing statement that (1) identified all significant mitigating and aggravating circumstances; (2) stated the specific reason why each circumstance is determined to be mitigating or aggravating; and (8) articulated the court's evaluation and balancing of the circumstances.

2006Hope v. State, 834 N.E.2d 713, 717-18 (Ind.Ct.App.2005).

2005See Blakely, 124 S.Ct. at 2536 , Smylie, 823 N.E.2d at 682 ; Hill v. State, 825 N.E.2d 432, 438 (Ind.Ct.App.2005).

2005See Blakely, 124 S.Ct. at 2536 , Smylie, 823 N.E.2d at 682 ; Hill v. State, 825 N.E.2d 432, 438 (Ind.Ct.App.2005).

2005We note that "a single aggravating circumstance is adequate to justify a sentence enhancement." Id. (citing Powell v. State, 769 N.E.2d 1128, 1135 (Ind.2002)).

2005We note that "a single aggravating circumstance is adequate to justify a sentence enhancement." Id. (citing Powell v. State, 769 N.E.2d 1128, 1135 (Ind.2002)).

2019In addition, a defendant may “consent to judicial factfinding.” Id. at 310 , 124 S. Ct. at 2541 . [15] As an initial matter, we must determine whether Boggs is permitted to raise a Blakely claim.

2019In addition, a defendant may “consent to judicial factfinding.” Id. at 310 , 124 S. Ct. at 2541 . [15] As an initial matter, we must determine whether Boggs is permitted to raise a Blakely claim.

2005Thus, I conclude we must apply Chapman in reviewing whether a Blakely error was harmless. ' My view is supported by a number of federal courts of appeal that have addressed whether a Blakely constitutional error was harmless following the Supreme Court's invalidation of the mandatory federal sentencing guidelines in United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

2005Thus, I conclude we must apply Chapman in reviewing whether a Blakely error was harmless. ' My view is supported by a number of federal courts of appeal that have addressed whether a Blakely constitutional error was harmless following the Supreme Court's invalidation of the mandatory federal sentencing guidelines in United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

2008In 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. [14] 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.

2008In Wickliff v. State, 816 N.E.2d 1165, 1166 (Ind.Ct.App.2004), decision on reh’g, we considered Wickliffs Blakely claim, which was raised for the first time in a Petition for Rehearing filed on August 16, 2004. 14 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.

2005See Aguilar v. State, 827 N.E.2d 31 (Ind.2005) (stating that the Blakely claim was not available because appellant failed to make any challenge to the sentence until after the Court of Appeals had issued a ruling on the merits); Nesbitt v. State, 827 N.E.2d 33 (Ind.2005) (stating that the Blakely claim was not available because appellant failed to make any ' challenge to the sentence whatsoever).

2005See Aguilar v. State, 827 N.E.2d 31 (Ind.2005) (stating that the Blakely claim was not available because appellant failed to make any challenge to the sentence until after the Court of Appeals had issued a ruling on the merits); Nesbitt v. State, 827 N.E.2d 33 (Ind.2005) (stating that the Blakely claim was not available because appellant failed to make any ' challenge to the sentence whatsoever).

2020And this Court has observed that “[e]ven after Apprendi was decided, there was no basis for [appellate Court of Appeals of Indiana | Memorandum Decision 20A-PC-585 | August 24, 2020 Page 15 of 16 counsel] to believe that Apprendi had any impact upon [a defendant’s] jury trial waiver and sentence.” Wieland v. State, 848 N.E.2d 679, 682 (Ind. Ct. App. 2006), trans. denied; cert. denied, 549 U.S. 1038 (2006).

2020And this Court has observed that “[e]ven after Apprendi was decided, there was no basis for [appellate Court of Appeals of Indiana | Memorandum Decision 20A-PC-585 | August 24, 2020 Page 15 of 16 counsel] to believe that Apprendi had any impact upon [a defendant’s] jury trial waiver and sentence.” Wieland v. State, 848 N.E.2d 679, 682 (Ind. Ct. App. 2006), trans. denied; cert. denied, 549 U.S. 1038 (2006).

2020Smylie, 823 N.E.2d at 690-91 . 4 [16] Subsequently, Indiana amended its sentencing scheme to the advisory sentencing scheme “apparently. . . to resolve the Sixth Amendment problem Blakely presented.” Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007).