Because the issue is so important, and because Judge Magnus-Stinson took precisely the opposite position in her presentation on Blakely at the Judicial Conference at the end of September, I 'm going to pull out the argument regarding Blakely and consecutive sentences:
Blakely also affects other aspects of Indiana's felony sentencing system. Not only does the Code unconstitutionally permit trial courts to increase the sentence for one felony based on aggravating facts found by the judge alone, section 35-50-1-2 also permits trial courts to impose consecutive sentences for multiple felonies based upon that same determination. I.C. 35-50-1-2 ("The court may consider the aggravating and mitigating circumstances in IC 35-38-1-7.1(b) and IC 35-38-1-7.1(c) in making a determination under this subsection."). In Ortiz v. State, this Court reiterated that "[i]n order to impose consecutive sentences, a trial court must find at least one aggravating circumstance." 766 N.E.2d 370, 377 (Ind. 2002) (citing Jones v. State, 705 N.E.2d 452, 455 (Ind. 1999)). Thus, the imposition of consecutive sentences in Indiana, just like an increase of a sentence for one felony, is permitted under the Code only after the trial court -- not a jury -- makes a determination of fact. Because the end result of this practice is an increase in the maximum sentence a judge "may impose without any additional findings," Blakely, 124 S. Ct. at 2537 (alteration in original), the imposition of consecutive sentences based on judicially found aggravators is equally unconstitutional.
Footnote 3 also takes an interesting position about what to do after Blakely aggravators have been set aside:
Nevertheless, defendants retain the statutory right to present and argue mitigating circumstances at sentencing. See Ind. Code § 35-38-1-7.1(c). Trial courts are required to credit any proffered mitigating circumstances that are significant and clearly supported by the record. Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). If mitigating circumstances are found and no aggravating circumstances exist, a sentence below the presumptive must be imposed. See Laughner v. State, 769 N.E.2d 1149, 1167 (Ind. Ct. App. 2002), trans. denied.The State's response is due November 4th, and I hope to be able to put it up shortly thereafter.