COURT OF APPEALS OF INDIANA
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHERINE A. CORNELIUS STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
DAMORROW BLEDSOE, )
vs. ) No. 49A05-0311-CR-586
STATE OF INDIANA )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Heather Welch, Judge Pro Tempore
Cause No. 49G02-0305-FB-86090
September 28, 2004
OPINION ON REHEARING - FOR PUBLICATION
Damorrow Bledsoe petitions for rehearing with regard to our unpublished memorandum decision in
Bledsoe v. State, No.
Ind. Ct. App. June 29, 2004). In
our original opinion, we determined that Bledsoe failed to show that the trial
judge had been biased or prejudiced against him. Thus, we rejected Bledsoes
argument that he was denied the right to a fair trial on this
basis. Slip op. p. 4. We now grant rehearing for the
limited purpose of addressing Bledsoes arguments regarding sentencing errors that were purportedly triggered
by the recent decision of Blakely v. Washington, 124 S. Ct. 2531 (2004).
At this juncture, Bledsoe asks this court to findpursuant to Blakelythat his sentence
violated his Sixth Amendment right to have the facts supporting the enhancement of
his sentence tried to a jury. As we recently observed in Carson
v. State, No. 49A04-0310-CR-494 (Ind. Ct. App. August 20, 2004), where this same
issue was raised for the first time on rehearing: [g]iven that Carson did
not challenge his sentence on direct appeal, he has technically waived review of
this issue, and the appropriate procedure would have been to challenge his sentence
through post-conviction relief. Slip op. p. 2. The same result attaches
here, inasmuch as Bledsoe did not raise this alleged sentencing error on
Waiver notwithstanding, after considering the merits of Bledsoes argument, we note that Blakely
has no effect on the enhanced sentence that the trial court imposed.
To be sure, the Blakely court applied the rule set forth in Apprendi
v. New Jersey, 530 U.S. 466 , 490 (2000)other than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury and proved beyond
a reasonable doubtand found the sentencing scheme at issue did not pass constitutional
muster. Blakely, 124 S. Ct. at 2536, 2543. It was also
recognized in Blakely that the relevant statutory maximum for Apprendi purposes is the
maximum a judge may impose based solely on the facts reflected in the
jury verdict or admitted by the defendant. Blakely, 124 S. Ct. at
In this instance, Bledsoe acknowledges that the trial court sentenced him to twelve
yearstwo years beyond the presumptivefor committing the offense of burglary as a class
See footnote Appellants Br. on Rehearing p. 7. In so
doing, the trial court relied upon Bledsoes prior criminal history, noted that his
rehabilitation could only occur in a penal institution, that he was on probation
at the time of the offense, and that the trial court believed that
Bledsoe would continue to engage in criminal activities. Tr. p. 105.
As we have established in
Carson, prior convictions shown by a defendants criminal
history are exempt from the Apprendi rule as clarified by Blakely. Carson,
slip op. p. 3. Also, just as we observed with respect to
the circumstances in Carson, the remaining aggravating circumstances in Bledsoes case merely derive
from his criminal history. Thus, the Blakely analysis is not implicated.
Finally, there is no indication that Bledsoe objected to the contents of the
pre-sentence investigation report.
In any event, it has been determined that a single aggravating circumstance will
justify a sentence enhancement. Powell v. State, 769 N.E.2d 1128, 1135 (Ind.
2002). That said, even if our supreme court were to find that
Indianas sentencing scheme runs afoul of the Sixth Amendment for the reasons that
were articulated in Blakely, such a determination would have no effect on Bledsoes
sentence. Accordingly, we grant Bledsoes petition for rehearing, but deny his requested
relief. Thus, our original opinion stands in all respects.
FRIEDLANDER, J., and BAILEY, J., concur.
The trial court added fifteen years to this count after
it was determined that Bledsoe was a habitual offender. Thus, an aggregate
sentence of twenty-seven years was imposed.