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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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