COA: OK counsel didn't raise Blakely claim

Jennifer Nelson
January 1, 2008
Back to TopCommentsE-mailPrintBookmark and Share
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.

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.