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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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