Attorneys for Appellant Attorneys for Appellee
Robert W. Hammerle Steve Carter
Joseph M. Cleary Attorney General of Indiana
Grant H. Carlton
Attorneys for Amicus Curiae Ellen H. Meilaender
Ann M. Sutton Deputy Attorneys General
Kathleen M. Sweeney
Marion County Public Defender Agency Attorneys for Amicus Curiae
Michael R. Limrick Stephen J. Johnson
Indianapolis, Indiana Indiana Prosecuting Attorneys Council
Joel M. Schumm
Indiana University School of Law - Indianapolis
Appeal from the Johnson Superior Court, No. 41D01-0207-FC-15
The Honorable Kevin Barton, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 41A01-0309-CR-339
March 9, 2005
Attempting to take account of both Blakely and Booker, we hold today that
portions of Indianas sentencing scheme violate the Sixth Amendments 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 announced in which the
appellant has adequately preserved appellate review of the sentence.
The Indiana Code provides that the penalty for a class D felony is
a fixed term of one and one-half years, with a maximum of one
and one-half years added for aggravating circumstances and up to a year subtracted
for mitigating circumstances. Ind. Code Ann. § 35-50-2-7 (West 2004). At
the sentencing hearing, the trial court judge found four aggravating circumstances: 1) Smylies
pattern of criminal activity, 2) his position of trust with the victim, 3)
the effect of the crime on the victim, and 4) the imposition of
a reduced or suspended sentence would depreciate the seriousness of the crime.
The court found two mitigating circumstances: Smylie had no criminal history, and
he was likely to respond to probation or short-term imprisonment. It sentenced
him to consecutive two-year terms on each of the counts, with six months
suspended, for a total of three and one-half years.
On June 24, 2004, the U.S. Supreme Court issued its decision in Blakely
v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004). Writing for a
5-4 majority, Justice Scalia declared that Blakelys sentence, enhanced based on various facts
found by the sentencing judge, violated Blakelys Sixth Amendment right to a jury
trial. Id. at __, 2538. This decision has cast doubt over
the constitutionality of sentencing schemes throughout the country.
Blakely pled guilty to second-degree kidnapping involving domestic violence and use of a
firearm, a class B felony. Washington state law capped punishment for a
class B felony at 10 years. See Blakely, 542 U.S. at __,
124 S.Ct. at 2535. According to Washingtons Sentencing Reform Act, the standard
sentencing range for Blakelys crime was 49 to 53 months. Id.
The trial court judge imposed a sentence of 90 months -- 37 months
over the standard range -- pursuant to a Washington statute that allowed an
increased sentence if a judge found substantial and compelling reasons justifying an exceptional
sentence. Id. (quoting Wash. Rev. Code Ann. § 9.97A.120(2) (2000).
The Washington trial judge had relied on deliberate cruelty, an aggravating factor enumerated
in the statutes. Id.
In analyzing the constitutionality of Washingtons sentencing scheme, the Court began by reiterating
the Sixth Amendment rule announced in Apprendi v. New Jersey:
See footnote [O]ther 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 doubt.
Blakely, 542 U.S. at __, 124
S.Ct. at 2536. While many who read Apprendi deduced that statutory maximum
meant statutory maximum, the Blakely majority chose to define it as the maximum
sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant. Id. at __,
2537. The statutory maximum was thus not the 10-year cap on class
B felonies, but rather the standard sentencing range under the Washington Sentencing Reform
Act. Id. at __, 2538.
Blakely admitted to the facts of a crime carrying a sentence of 49-53
months, and if there were any additional facts used to increase the sentence,
the Court said, Blakely was entitled to have them found by a jury
beyond a reasonable doubt. Id. at __, 2537-38. Washingtons sentencing procedure,
to the extent it allowed a judge to increase the sentence above the
statutory maximum based on the judges findings, violated the Sixth Amendment. Id.
at __, 2538.
Whether this represents sound jurisprudence or policy is of no moment for us
under the Supremacy Clause, and we cannot see any grounds for sustaining Indianas
sentencing scheme given the Blakely holding. Indianas sentencing scheme provides a fixed term
presumptive sentence for each class of felonies. See Ind. Code Ann. §§
35-50-2-3 to 7 (West 2004). These statutes also create upper and lower
boundaries for each felony sentence. Id. In deciding on whether to
depart from the presumptive sentence, the trial judge must consider seven enumerated factors
and may consider various other aggravating and mitigating factors. Ind. Code Ann.
§ 35-38-1-7.1 (West 2004).
From the time Indiana adopted its present sentencing arrangement in 1977, we have
understood it as a regime that requires a given presumptive term for each
class of crimes, except when the judge finds aggravating or mitigating circumstances deemed
adequate to justify adding or subtracting years. See, e.g., Henderson v. State,
769 N.E.2d 172, 179 (Ind. 2002); Page v. State, 424 N.E.2d 1021, 1022-24
(Ind. 1981); Gardner v. State, 270 Ind. 627, 631-36, 388 N.E.2d 513, 516-19
(1979). This flows from the words of the substantive sentencing provisions.
The provision applicable to Smylies crime mirrors those for other classes of felonies:
A person who commits a Class D felony shall be imprisoned for
a fixed term of one and one-half (l ½ ) years, with not
more than one and one-half (1 ½) years added for aggravating circumstances or
not more than one (1) year subtracted for mitigating circumstances. Ind. Code
Ann. § 35-50-2-7(a) (West 2004).
For Blakely purposes, Indianas fixed term is the functional equivalent of Washingtons standard sentencing range. Both establish a mandatory starting point for sentencing criminals based on the elements of proof necessary to prove a particular offense and the sentencing class into which the offense falls. The trial court judge then must engage in judicial fact-finding during sentencing if a sentence greater than the presumptive fixed term is to be imposed. See footnote It is this type of judicial fact-finding that concerned the Court in Blakely. When a judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment. Blakely, 542 U.S. at __, 124 S.Ct. at 2537 (quoting 1 J. Bishop, Criminal Procedure § 87 (2d ed. 1872)). While the Attorney General has ably defended the statutes on other grounds we discuss below, we see little daylight between the Blakely holding and the Indiana system.
B. Ours Is Not A Simple Range System
The Attorney General argues that Indianas sentencing statutes establish a system of ranges
for felony convictions, within which a judge can work in fashioning a sentence.
The State also asserts that the fixed term presumptive sentence is merely
a guidepost for judges operating within the ranges. (Appellees Resp. Pet. Transfer
at 6.) According to the State, Indianas sentencing statutes do not violate
Blakely because the statutory maximum is the upper limit of the range, rather
than the presumptive sentence. (Id. at 6-7.)
We find ourselves unable to embrace this plausible contention for two reasons.
First, the Blakely majority rejected a nearly identical argument, saying that the relevant
statutory maximum is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any additional findings.
Blakely, 542 U.S. at __, 124 S.Ct. at 2537. Indianas felony sentencing
statutes provide fixed terms and allow departures only if aggravating or mitigating factors
See footnote Ind. Code Ann. §§ 35-50-2-3 to 7 (West 2004).
These factors are assessed by the judge alone. Ind. Code Ann. §
35-38-1-7.1 (West 2004). If the trial court adds or subtracts from the
standard fixed term, the judge must: 1) identify all significant aggravating and
mitigating factors; 2) specify the findings of fact and reasons which lead the
court to find such factors; and 3) articulate that the aggravating and mitigating
factors were evaluated and balanced in determination of the sentence.
State, 717 N.E.2d 138, 149 (Ind. 1999).
Second, the States argument runs contrary to the interpretation of the Indiana statutory
scheme as articulated and implemented by our trial and appellate courts over parts
of four decades. Because the judge has to find additional facts to
impose a sentence higher than the presumptive sentence, the presumptive sentence is the
relevant statutory maximum. See Blakely, 542 U.S. at __, 124 S.Ct. at
The State also points to the Blakely Courts disapproval of a sentencing system
that allows a judge to rely on a probation officers report to increase
a defendants maximum potential sentence dramatically without warning the defendant either at the
time of the indictment or the plea. Blakely, 542 U.S. at __,
124 S.Ct. at 2542. (Appellees Br. Resp. Br. of Amicus Curiae Marion
County Public Defender Agency at 9-10.) It contends that Indianas regime does
not allow what Justice Scalia called an unexpected increase
See footnote inasmuch as defendants are
aware of the maximum sentence that can be imposed for any given felony,
namely, the range listed in the sentencing statutes.
Fatal to this assertion is the fact that Washingtons system gave similar notification.
Washingtons statutes theoretically informed defendants that a sentence may be increased to a
statutory upper limit if substantial and compelling reasons justify an exceptional sentence.
Wash. Rev. Code Ann. § 9.94A.120(2) (2000).See footnote This upper limit in Washington,
ten years for a class B felony, still allowed a sentence to balloon
from the statutory maximum based on judicial fact-finding.See footnote The increase was unexpected
in one important sense, namely that the aggravators used to support a departure
from the presumptive are not charged in the indictment.
See McCormick v.
State, 233 Ind. 281, 119 N.E.2d 5 (1954) (charging information need only contain
essential elements of crime to notify defendant of what crime is charged).
The Court was apparently unconvinced that this notification problem is remedied by any
awareness by the defendant of the upper limit. See Blakely, 542 U.S.
at __, 124 S.Ct. at 2538-42.
C. What Is the Effect of this Blakely Violation?
The foregoing conclusion about the unconstitutionality of Indianas present sentencing system hardly nullifies the entire arrangement. We have historically rescued constitutional portions of statutes, if possible, when other portions are held unconstitutional. See, e.g., State v. Barker, 809 N.E.2d 312 (Ind. 2004); State v. Kuebel, 241 Ind. 268, 172 N.E.2d 45 (1961). We have adopted the severability test enunciated in Dorchy v. Kansas:
A statute bad in part is not necessarily void in its entirety. Provisions within the legislative power may stand if separable from the bad. But a provision, inherently unobjectionable, cannot be deemed separable unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the act and held bad should fall. See footnote
It is apparent that Indianas sentencing system runs afoul of the Sixth Amendment
not because it mandates a fixed term sentence for each felony, but because
both a fixed term and permits judicial discretion in finding aggravating
or mitigating circumstances to deviate from the fixed term. A constitutional scheme
akin to ours could take one of two forms: (1) our present
arrangement of fixed presumptive terms, modified to require jury findings on facts in
aggravation, or (2) a system in which there is no stated fixed term
(or at least none that has legally binding effect) in which judges would
impose sentences without a jury.
The U.S. Supreme Court, in its most recent installment in this Sixth Amendment
saga, applied Blakely to the Federal Sentencing Guidelines. United States v. Booker,
543 U.S. __, 125 S.Ct. 738, 746 (2005). The Courts solution was
to sever and excise a portion of the sentencing statute that made the
sentence indicated by the Guidelines range mandatory unless the trial court found aggravating
or mitigating circumstances not adequately considered by the U.S. Sentencing Commission. This
excising produced an arrangement like the second option described above. Blakely had
explicitly sanctioned such regimes. Blakely, 542 U.S. at __, 124 S.Ct. at
2540 (indeterminate sentencing by judges and parole boards not a violation of Sixth
Our conclusion about severability leads to an outcome more like the first choice
mentioned above. In excising only the minimal portions of the existing statute
necessary to comply with Blakely, we are much influenced by the fact that
the overarching theme of Indianas 1977 sentencing reform was a legislative decision to
abandon indeterminate sentencing in favor of fixed and predictable penalties. The 1977
act assigned to judges the task of imposing penalties stated as a fixed
term of years and created a structure for setting those penalties that is
far more definitive than the scheme it replaced.
We conclude that the first option listed above is probably more faithful to
the large objectives of the General Assemblys 1977 decisions. We thus hold
that the sort of facts envisioned by Blakely as necessitating a jury finding
must be found by a jury under Indianas existing sentencing laws.
D. Blakely Does Not Invalidate Indianas Arrangement for Consecutive Terms
Having concluded that Indianas system for enhanced sentences contravenes Blakely, we turn to
a closely related issue posed by Smylie.
When sentencing a defendant on multiple counts, an Indiana trial judge may impose
a consecutive sentence if he or she finds at least one aggravator.
Ortiz v. State, 766 N.E.2d 370 (Ind. 2002); Morgan v. State, 675 N.E.2d
1067 (Ind. 1996). A defendant does have the right to the exercise
of a trial courts discretion.
See footnote Certainly, where a judge finds that aggravating and
mitigating circumstances are in equipoise, we have required concurrent sentences,
Marcum v. State,
725 N.E.2d 852, 863-64 (Ind. 2000), just as we have where the court
has not found any aggravating circumstances at all. Hansford v. State, 490
N.E.2d 1083, 1094 (Ind. 1986). But our statutes do not erect any
target or presumption concerning concurrent or consecutive sentences. Where the criminal law leaves
sentencing to the unguided discretion of the judge there is no judicial impingement
upon the traditional role of the jury. Blakely, 542 U.S. at __,
124 S.Ct. at 2540.
We find no language in Blakely or in Indianas sentencing statutes that requires
or even favors concurrent sentencing. See generally, Blakely, 542 U.S. __, 124
S.Ct. 2531 (2004); Ind. Code Ann. § 35-50-1-2 (West 2004). The trial
courts sentencing of Smylie to consecutive terms after finding an aggravating circumstance did
not increase the sentence above the statutory maximum for each offense. See
State v. Abdullah, 858 A.2d 19, 39 (N.J. Sup. Ct. App. Div. 2004)
certification granted (Although the imposition of consecutive terms . . . increase[s a]
defendants punishment, [it does] not increase the penalty above what the law provides
for the offense charged.).
See footnote There is no constitutional problem with consecutive
sentencing so long as the trial court does not exceed the combined statutory
E. Smylies Sentence
The trial court sentenced Smylie to two years for each count of class
D felony child solicitation, six months above the standard fixed term. The
aggravating factors used to enhance the sentence were not submitted to the jury
or admitted by Smylie. The enhancement cannot be imposed without jury findings.
We reverse and remand for a new sentencing on these counts, should
the State elect, with the intervention of a jury. The trial courts
order of consecutive sentences is not defective, and we affirm it.
A. Blakely Establishes a New Rule
It is firmly established that, a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a clear break with the past. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). A rule is new for the purposes of retroactivity if the result was not dictated by precedent existing at the time the defendants conviction became final. Teague v. Lane, 489 U.S. 288, 301 (1989). Blakely was decided while Smylies case was still pending on direct appeal, and thus, the initial question is whether the result in Blakely was dictated by existing precedent.
The State apparently concedes that Blakely constitutes a new rule for the purposes of retroactivity. See footnote Correctly so. While Blakely certainly states that it is merely an application of the rule we expressed in Apprendi v. New Jersey, 124 S.Ct. at 2536, it is clear that Blakely went beyond Apprendi by defining the term statutory maximum. As the Seventh Circuit recently said, it alters courts understanding of statutory maximum and therefore runs contrary to the decisions of every federal court of appeals [that had previously] held that Apprendi did not apply to guideline calculations made within the statutory maximum. Simspon v. United States, 376 F.3d 679, 681 (7th Cir. 2004)(collecting cases). Because Blakely radically reshaped our understanding of a critical element of criminal procedure, and ran contrary to established precedent, we conclude that it represents a new rule of criminal procedure. See footnote
B. Blakely Applies Retroactively to Cases on Direct Review
Of course, as the State points out, the application of Blakely to any case pending on direct review remains subject to the standard rules governing appellant procedure such as waiver and forfeiture. See footnote
To receive the benefit of a new rule of law, a claimant must preserve the issue for appeal. In Pirnat v. State, 607 N.E.2d 973 (Ind. 1993), for example, we considered the retroactive applicability of our decision about the admissibility of depraved sexual instinct evidence to cases pending on appeal at the time Lannan v. State, 600 N.E.2d 1334 (Ind. 1992) was decided. We declared that Pirnat and others whose cases properly preserved the issue and whose cases were pending on direct appeal at the time Lannan was decided receive the benefit of review under the new rule. Pirnat, 607 N.E.2d at 974 (emphasis added). See footnote Pirnat had previously challenged the admission of the depraved sexual instinct evidence at trial and on appeal. Pirnat v. State, 596 N.E.2d 259 (Ind. Ct. App. 1992).
We reached the same conclusion in Coleman v. State, 558 N.E.2d 1059 (Ind.
1990), when we considered the retroactive applicability of the constitutional rule announced in
Booth v. Maryland, 482 U.S. 496 (1987) and South Carolina v. Gathers, 490
U.S. 805 (1989) to cases pending on direct appeal at the time those
rules were announced.
See footnote Although we concluded that
Booth and Gathers applied retroactively
to cases pending on direct appeal, we made clear that we considered the
rule to apply to the direct appeal of a trial occurring before those
cases were decided so long as the appellant has preserved [the issue for
appeal] by objecting at trial. Coleman, 558 N.E.2d at 1061 (emphasis added).
We have utilized this same approach in other cases. See, e.g.,
Ried v. State, 615 N.E.2d 893 (Ind. 1993); Daniels v. State, 561 N.E.2d
487 (Ind. 1990).
On this principle of appellate law, Indiana jurisprudence is rather ordinary. In United States v. Cotton, 535 U.S. 625 (2002), for example, the Supreme Court applied the plain error test to a case pending on appeal when the new rule in Apprendi was announced. In so doing, the Court noted that Cottons claim was forfeited because of his failure to object to alleged error at trial. Id. at 629, 631. Similarly, in Johnson v. United States, 520 U.S. 461 (1997), the Court considered the retroactive application of the rule announced in United States v. Gaudin, 515 U.S. 506 (1995), to a case pending on appeal at the time of that decision. In considering Johnsons claim, the Court noted that [b]ecause petitioner is still on direct review, Griffith requires that we apply Gaudin retroactively. Johnson, 520 U.S. at 467. The Court, however, still applied plain error review because of Johnsons failure to object at trial and preserve the error for appeal. Id. Unsurprisingly, a number of federal circuit cases reflect the same practice. See footnote
Given this backdrop of precedent we believe that our approach regulating the retroactive application of a new rule to cases pending on direct appeal through the application of the rules governing appellate procedure is entirely consistent with the dictates of Griffith. As such, we agree with the State that it is entirely possible for defendants to have waived or forfeited their ability to appeal their sentence on Blakely grounds.
C. What is Enough to Preserve a Blakely Challenge?
The State urges us to declare Smylies claim forfeited because he failed to lodge an objection at his sentencing hearing that his right to trial by jury was denied when the trial court found aggravating circumstances and imposed an enhanced sentence either generally or specifically based on Apprendi. (Resp. Pet. Transfer at 4.) The State further stresses that Blakely based his exceptional sentence claim on Apprendi just as Smylie should have if he found his sentence objectionable. (Resp. Pet. Transfer at 4-5.)
The State rightly points out that a claim is generally considered forfeited if
it is not objected to at trial, see Bruno v. State, 774 N.E.2d
880 (Ind. 2002), and it is certainly correct that Smylie could have objected
on Apprendi or Sixth Amendment grounds at the time the trial court convened
for the sentencing hearing. Because Blakely represents a new rule that was
sufficiently novel that it would not have been generally predicted, much less envisioned
to invalidate part of Indianas sentencing structure, requiring a defendant or counsel to
have prognosticated the outcome of Blakely or of todays decision would be unjust.
This is the same approach taken by the Seventh Circuit in several recent decisions. In United States v. Pree, 384 F.3d 378 (7th Cir. 2004), the court noted that Pree did not address to this court, nor can we find evidence in the record to indicate, that she addressed before the district court the constitutionality of her sentencing enhancement. Id. at 396. Despite this failure to raise an objection to her sentence at either the trial court or before the court of appeals, the Seventh Circuit nevertheless stated that [g]iven the precedent in this circuit prior to Blakely, we think it would be unfair to characterize Ms. Pree as having waived a challenge to the validity of her sentencing enhancement. Id.
Likewise, the panel in United States v. Henningsen, 387 F.3d 585 (7th Cir.
2004), concluded that the failure to object to a sentence on constitutional grounds
did not constitute forfeiture of the Blakely issue for appeal.
See footnote The court
noted that Henningsens challenge during sentencing and in his brief on appeal did
not extend to the constitutionality of the enhancements.
Id. at 591. However,
while such failure to object would ordinarily constitute forfeiture, the court took note
of the fact that Henningsen:
made notice of the Blakely . . . [decision] in a subsequent
filing and raised the issue during argument. In light of the uncertainity surrounding
this issue and the questionable constitutionality of Henningsens sentencing enhancement, we do not
find that Hennignsen has waived his right to challenge the validity of the
district courts sentencing enhancement.
We conclude that it is appropriate to be rather liberal in approaching whether
an appellant and her lawyer have adequately preserved and raised a
A very tough Blakely preservation rule would prompt practitioners to fill trial
time and appellate briefs with all imaginable contentions, contrary to the general advice
that it is good practice to focus on the most viable issues.
It would also drastically alter the burden imposed on counsel as to what
constitutes effective assistance to their clients. As we said in Fulmer v.
State, 523 N.E.2d 754 (Ind. 1988), An attorney is not required to anticipate
changes in the law and object accordingly in order to be considered effective.
Id. at 757-58. As we suggested above, a trial lawyer or
an appellate lawyer would not be ineffective for proceeding without adding a Blakely
claim before Blakely was decided. Consequently, we do not deem the failure
to raise a Sixth Amendment objection to the trial court as it proceeded
through sentencing to constitute forfeiture of a Blakely issue for purposes of appellate
Nevertheless, it does not ask too much that a criminal defendant have contested his or her sentence on appeal, even if the Blakely element of that contest is added later, as it has been by Smylie. Thus, we regard defendants such as Smylie who sought sentence relief from the Court of Appeals based on arbitrariness or unreasonableness (Appellants Br. at 3), and who added a Blakely claim by amendment or on petition to transfer as having adequately presented the issue of the constitutionality of their sentence under Blakely.
Defendants who have appealed without raising any complaint at all about the propriety of their sentence have arguably made the sort of knowing and intelligent decision regarding their appeal that is required for waiver to exist. Thus, those defendants who have not raised objections to their sentences should be deemed to have at least forfeited, and likely waived, the issue for review.
First, as a new rule of constitutional procedure, we will apply Blakely retroactively to all cases on direct review at the time Blakely was announced. Second, a defendant need not have objected at trial in order to raise a Blakely claim on appeal inasmuch as not raising a Blakely claim before its issuance would fall within the range of effective lawyering. Third, those defendants who did not appeal their sentence at all will have forfeited any Blakely claim.
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissents with separate opinion.
Because of recent decisions of the United States Supreme Court, the majority chooses
to preserve the constitutionality of Indiana's criminal sentencing system by judicially severing statutory
provisions that direct trial judges to consider aggravating and mitigating circumstances to determine
sentences, and by engrafting a new procedure requiring that aggravating circumstances be submitted
for jury determination. I prefer a less onerous construction that leaves intact
the language of the statute and modifies only judicial precedent interpreting the statute.
Statutes must be accorded every reasonable presumption to support their validity, and if
possible, we must adopt a reasonable construction that support their constitutionality. Burris
v. State, 642 N.E.2d 961, 968 (Ind. 1994); Brady v. State, 575 N.E.2d
981, 985 (Ind. 1991); Miller v. State, 517 N.E.2d 64, 71 (1987).
In assessing the constitutionality of a statute, "we might well modify our view
of the statute's demands if doing so would preserve its constitutionality." A
Woman's Choice-East Side v. Newman, 671 N.E.2d 104, 110 (Ind. 1996).
The majority correctly acknowledges that one possible option for Indiana's sentencing system to
satisfy the United States Supreme Court requirements would be "a system in which
there is no stated 'fixed term' (or at least none that has legally
binding effect) in which judges would impose sentences without a jury." Slip
opin. at 8. In fact, this is the approach recently implemented by
the Supreme Court in applying its requirements to federal criminal sentencing. United
States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
This system is not inconsistent with the express language of Indiana Code §
35-38-1-7.1, which states in relevant part that "[i]n determining what sentence to impose
for a crime, the court shall consider," id. (emphasis added), and then lists
various possible aggravating and mitigating factors, in addition to which the statute declares
that such factors "do not limit the matters that the court may consider
in determining the sentence." Ind. Code § 35-38-1-7.1(d) (emphasis added). If
the court finds aggravating or mitigating circumstances, it must at sentencing make a
record of its "reasons for selecting the sentence that it imposes." Ind.
Code § 35-38-1-3.
The rule that has developed in Indiana criminal sentencing is that enhanced sentences may only be imposed upon the judge's express determination of one or more aggravating factors. But this rule is not required by statutory language, which compels only general consideration of aggravating and mitigating circumstances, and does not compel trial courts to find any particular aggravator as a prerequisite to imposing an enhanced sentence. Our current rule reflects an obligation that was gradually superimposed upon the statute by a series of judicial decisions. See, e.g., Taylor v. State, 181 Ind.App. 227, 230, 391 N.E.2d 662, 664 (1979) (affirming sentence because trial court did not treat sentencing guidelines as binding but rather as only a tool); Gardner v. State, 279 Ind. 627, 633, 388 N.E.2d 513, 517 (1979) (when increased sentences are imposed, trial court should disclose the factors considered, to facilitate appellate review for sentence reasonableness); Abercrombie v. State, 275 Ind. 407, 412, 417 N.E.2d 316, 319 (1981) (court's record of sentencing reasons serves two purposes: to confine the judge to proper grounds and to permit appellate court to determine reasonableness of sentence); Dumbsky v. State, 508 N.E.2d 1274, 1278 (Ind. 1987) (requiring sentencing court to specifically identify aggravating circumstances serves dual purposes of providing an adequate basis for appellate review and guarding against arbitrary and capricious sentencing); Bustamante v. State, 557 N.E.2d 1313, 1321 (Ind. 1990) (when judges impose enhanced sentences, they must make specific findings of aggravating circumstances); Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002) (where trial court enhances presumptive sentence, it must identify and explain aggravating circumstance). To be sure, our current judicial construction mandating an affirmative finding of one or more aggravating factors as a prerequisite to imposing an enhanced sentence is now long-settled and serves well the sound policy of favoring fair, consistent, and predictable penalties. As this Court holds today, however, this system runs afoul of the federal constitutional prohibition against sentences that require a judge to find some additional fact not found by a jury. Booker, 543 U.S. at ___, 125 S.Ct. at 749, 160 L.Ed.2d at 643; Blakely v. Washington, 542 U.S. ___, ___, 124 S.Ct. 2531, 2538, 159 L.Ed.2d 403, 415 (2004).
To comply with this requirement, we should judicially modify not the statutory language
but our own precedents. The result would be that Indiana trial judges
would continue to dete
rmine sentences in accordance with statute, with discretion to the
fix the sentence within specific ranges already designated by the legislature for various
categories of criminal offenses. As required by the statute, they must consider
aggravating and mitigating circumstances, but their authority to impose a particular enhanced sentence
would not be limited so as to require them to expressly find any
particular aggravating circumstances.
Our Criminal Code provides that for each class of felony or misdemeanor, a
person convicted "shall be imprisoned for a fixed term of" and specifies a
specific number followed by a limited range of years that may be added
or subtracted for aggravating or mitigating circumstances. See Ind. Code §§ 35-50-2-4
through -7, 35-50-3-2 through -4. We refer to this fixed number as
the "presumptive" sentence for each class of offense. The presumptive sentences identified
by statute would serve as non-binding recommendations, with our trial courts nevertheless empowered
to exercise their sound discretion to fix the sentence at any point within
the designated range, upon consideration of the aggravating and mitigating factors as found
by the judge.
Not only would this method of compliance with federal constitutional requirements avoid the necessity of judicially altering statutory language, it would also avoid adding a new layer of jury sentencing hearings in criminal cases and the attendant additional expense and delay. Adoption of such an approach would not be unusual. Notwithstanding today's decision of this Court, the legislature may still choose to modify Indiana's sentencing statues to implement this system.
Independent of the above discussion, it should be noted that, under the new methodology created by the Court's opinion today, defendants who challenge their prior judge-determined sentence claiming entitlement to a jury determination of aggravating circumstances may ultimately receive a greater sentence. The trial court here sentenced Smylie to three and one-half years, after suspending six months. This is less than the maximum possible aggregate sentence of six years that the defendant was facing. Today's decision operates to vacate this sentence and to remand the case for a new sentencing hearing. If a jury then determines aggravating factors significantly different from those previously found by the trial judge, there is no reason that the defendant could not end up receiving the maximum sentence, which would be two and one-half years more than that originally imposed by the trial judge.