ILNews

COA: OK counsel didn't raise Blakely claim

Jennifer Nelson
January 1, 2008
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A defendant's appellate counsel was not ineffective for failing to raise a Blakely claim on appeal because raising the issue was outside his counsel's objective prevailing professional norms at the time, ruled a majority of an Indiana Court of Appeals panel today. However, the dissenting judge cited numerous examples of other counsel amending appeals with a Blakely claim during the same time period.

In Steven Kendall v. State of Indiana, No. 49A05-0707-PC-391, Kendall appealed the denial of his post-conviction relief petition by the post-conviction court. Kendall believed he received ineffective assistance from his appellate counsel because she failed to file a petition for rehearing with the Court of Appeals, an amended brief, or a petition for transfer in order to raise a Blakely claim.

Kendall was convicted by a jury in 2002 of attempted murder and aggravated battery. The trial court merged the sentences and gave him 30 years in prison. Kendall appealed, and the Court of Appeals vacated his attempted murder conviction and remanded for resentencing. In December 2003, the trial court noted Kendall's aggravating factors and no mitigating factors, and sentenced him to 20 years in the Department of Correction.

Kendall filed another appeal later that month and filed his brief April 28, 2004. The U.S. Supreme Court issued Blakely v. Washington, 542 U.S. 296 (2004), June 24, 2004. In August 2004, the Court of Appeals affirmed Kendall's sentence.

The Indiana Supreme Court ruled in March 2005 in Smylie v. State, 823 N.E.2d 619 (Ind. 2005), that Indiana's sentencing scheme that allowed judges to enhance sentences above the presumptive based on facts neither admitted by the defendant nor proven by a jury violated the Sixth Amendment right to trial by jury, and that the new rule of Blakely should apply to all cases pending on direct review at the time Blakely was issued in which the appellant has adequately preserved the issue for appeal.

The Indiana Supreme Court later clarified its ruling in Smylie to say any appellant who filed their initial brief prior to Smylie and failed to raise a Blakely claim but did challenge their sentence in some form could raise a Blakely claim by way of an amendment, petition for rehearing, or petition for transfer.

Because his counsel didn't file a petition for rehearing in the Court of Appeals or file a petition for transfer to the Indiana Supreme Court, Kendall claimed his counsel was ineffective. He filed a petition for post-conviction relief in February 2005, in which the court ruled in May 2007 that his appellate counsel was not ineffective because challenging his sentence under Blakely was not a significant and obvious issue at the time.

Judges James Kirsch and Melissa May agreed with the post-conviction court that Kendall's appellate attorney did not provide ineffective assistance. In order for Kendall to show his constitutional right to effective counsel assistance was violated, he has to show that filing an amended brief or other pleading to raise Blakely issues was within the his counsel's objective standard of reasonable performance, wrote Judge Kirsch.

"Based on stare decisis and the confusion following Blakely and its progeny, we find the standard argued by Kendall to be outside counsel's objective prevailing professional norms. Instead, at the time of Kendall's appeal, raising Blakely issues was only a subjective standard of reasonable performance. Since that time it has proven to be an objective standard that is of no avail to Kendall," he wrote.

The Supreme Court also determined in Smylie that requiring a defendant or counsel to have predicted the outcome of Blakely or of Smylie's decision would be unjust.

"Given the legal environment of the time, an environment marked by unpredictability and uncertainty on this court and elsewhere regarding the application of Blakely, we do not find that counsel was ineffective for failing to seek leave to file an amended brief or to raise the issue on rehearing or petition to transfer," wrote Judge Kirsch.

However, in her dissent, Judge Patricia Riley cited numerous examples in published opinions of other counsel raising Blakely claims via amended briefs that were filed, not only prior to Smylie, but also prior to the court's initial application of Blakely to Indiana's sentencing scheme.

Comparing Kendall's counsel's performance to these other attorneys who represented similarly situated clients with arguable Blakely claims, Judge Riley found Kendall's counsel's performance fell below prevailing professional norms. She concluded Kendall suffered prejudice as a result of his appellate counsel's deficient performance and would remand for resentencing.
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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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