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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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