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Tuesday, September 08, 2009

Ind. Decisions - Supreme Court's call for amicus briefs in sentencing case answered

Anthony Malenchik v. State -- 79A02-0902-CR-133. This is a NFP opinion issued June 5th. The Supreme Court granted transfer August 10th.

Accompanying the grant was this Order Directing Addional Briefing and Inviting Amicus Participation. Access it here. From the Order:

The Court is interested in Appellant's argument that the trial court abused its discretion in relying on "scoring models" (in this case, the Level of Service Inventory-Revised ("LSlR") and Substance Abuse Subtle Screening Inventory ("SASSI") in determining the sentence. Appellant relies primarily on Rhodes v. State, 896 N.E.2d 1193, 1195 (Ind. Ct. App. 2008), trans. not sought. This issue was not fully developed in the parties' briefs and may be a legal issue of wider interest.

The Court now issues this invitation for participation of amicus curiae to address a trial court's reliance on scoring models in sentencing. Those entities willing to prepare and file a brief as amicus curiae on the issue are requested to file a motion on or before September 4, 2009 seeking leave to appear as amicus curiae. The Court encourages the submission of joint briefs. Briefs submitted by those granted amicus curiae status will be due on or before September 21, 2009. * * *

In addition, the parties shall file supplemental briefs by September 21, 2009 with more fully developed argument on the use of scoring models in sentencing.

So who has indicated an intent to file an amicus brief? According to the Clerk's Docket:
9/03/09 NOTICE OF APPEARANCE BY JANE SEIGEL, JENNIFER BAUER & MICHELLE GOODMAN, ATTY'S FOR AMICUS CURIAE INDIANA JUDICIAL CENTER (2) CERTIFICATE OF SERVICE (2) BY MAIL AS 09/03/09

9/03/09 MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE *INDIANA JUDICIAL CENTER* (6) CERTIFICATE OF SERVICE (6) BY MAIL 9/3/09 AS 9/03/09

9/04/09 APPELLANT'S PETITION OF THE INDIANA PROSECUTING ATTORNEYS COUNCIL TO APPEAR AS AMICUS CURIAE (6) CERTIFICATE OF SERVICE BY MAIL DATE 08/04/09 JS 09/04/09

9/04/09 NOTICE OF APPEARANCE BY LARRY LANDIS, ATTY. FOR THE AMICUS CURIAE INDIANA PUBLIC DEFENDER COUNCIL (2) CERTIFICATE OF SERVICE (2) BY PERSONAL AS 09/04/09

9/04/09 AMICUS CURIAE *INDIANA PUBLIC DEFENDER COUNCIL* MOTION FOR LEAVE TO APPEAR (6) CERTIFICATE OF SERVICE (6) BY PERSONAL 9/4/09 AS 09/04/09

9/04/09 NOTICE OF APPEARANCE BY BRYAN BABB, FRED BIESECKER, JAMES BELL, CAROL NEMETH, JOEL SCHUMM AND GEOFFREY SLAUGHTER, ATTY'S FOR AMICUS CURIAE INDIANAPOLIS BAR ASSOCIATION, CRIMINAL JUSTICE AND APPELLATE PRATICE SECTION (IBA) (2) CERTIFICATE OF SERVICE (2) BY MAIL 9/4/09 AS 09/04/09

9/04/09 AMICUI CURIAE (IBA) MOTION FOR LEAVE TO FILE BRIEF IN SUPPORT OF PETITION TO TRANSFER (6) CERTIFICATE OF SERVICE (6) BY MAIL 9/4/09 AS 09/04/09

How often does the Court call for amicus briefs? According to IU Law professor Joel Schumm:
I think it's uncommon. I did a quick search and it looks like amicus was invited in In re Stephen, 867 N.E.2d 148 (Ind. 2007); Robinson v. State, 805 N.E.2d 783 (Ind. 2004); Sholes v. Sholes, 760 N.E.2d 156 (Ind. 2001). It looks like the COA invited amicus in Smith v. Ind. Dep't of Corr., 853 N.E.2d 127 (Ind. Ct. App. 2006), vacated on transfer, 883 N.E.2d 802 (Ind. 2008), and amici continued on through transfer.
The ILB hopes to post both the briefs of the parties and the amicus in this case, as soon as possible after the Sept. 21st filing deadline.

Posted by Marcia Oddi on September 8, 2009 10:25 AM
Posted to Ind. Sup.Ct. Decisions