FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

RODOLFO S. MONTERROSA, JR.     STEVE CARTER
South Bend, Indiana     Attorney General of Indiana

JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana

JAMIE A. FREEZE,        )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 20A03-0412-CR-562
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

Id. at 280, 113 S. Ct. at 2082.
    The Supreme Court apparently discarded this “structural” error approach to the deprivation of the right to a jury trial in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999). There, a five-justice majority held that where a jury was not instructed on an element of an offense, and thus there was no jury finding on that element, it was proper for an appellate court to find the error harmless and affirm a conviction despite deprivation of the Sixth Amendment right to a jury trial, if it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty” despite the lack of an actual jury finding on that element. Id. at 18, 119 S. Ct. at 1838. It is conceivable that the existence or non-existence of an aggravating circumstance for sentencing purposes could be analogized to the existence or non-existence of an element of an offense that was necessary for a finding of guilt in the first place.
We believe the validity of Neder might be short-lived, in light of the seismic shift in the Supreme Court’s Sixth Amendment jurisprudence since 1999. Specifically, Justice Scalia wrote a vigorous dissent in Neder, joined in part by Justice Stevens and fully by Justices Ginsburg and Souter – in other words, four of the five members of the Blakely majority. Justice Thomas, the fifth Blakely justice, was in the Neder majority. After Neder, and beginning at least with Apprendi, he has repudiated a narrow interpretation of the Sixth Amendment jury trial right and has joined Justice Scalia’s broad view of it. See also Shepard v. United States, -- U.S. --, 125 S. Ct. 1254, 1264 (Thomas, J., concurring) (disavowing his concurring vote in Almanderez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), a five-four Sixth Amendment decision upon which criminal history “exception” to Apprendi-Blakely rule is based). Additionally, Neder itself cautions that “safeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error . . . it should not find the error harmless.” Neder, 527 U.S. at 19, 119 S. Ct. at 1838.
    Even acknowledging Neder’s continued viability unless and until the Supreme Court expressly overrules it, we would decline to find Neder-type harmless error in this case. The issues of the amount of methamphetamine Freeze possessed and whether he also possessed marijuana and a firearm at the time of his arrest were not litigated, unlike the missing element in Neder and the aggravating circumstances in Averitte, evidence of which apparently had been presented during trial. Averitte, 2005 WL 793750 at ** 4-5. We presume this information was reflected in the police reports or probable cause affidavit, which are not in the record before us, but Freeze did not admit these facts during his guilty plea hearing or sentencing hearing, nor was any additional evidence presented to support such facts. We decline, on such a record, to reach a conclusion that the jury surely would have found the existence of these aggravators beyond a reasonable doubt.
    We now address the Chapman harmless error question – i.e., whether the remaining valid aggravators support Freeze’s enhanced sentence. We cannot conclude beyond a reasonable doubt that the trial court would have imposed an identical fifteen-year sentence if it had not considered the amount of methamphetamine Freeze allegedly possessed and the allegations that he also possessed a firearm and marijuana at the time of his arrest. Granted, the three remaining valid aggravators – Freeze’s criminal history, one prior probation violation, and the fact that he was on bond when he committed this offense – by themselves likely could justify a five-year enhancement of Freeze’s sentence. Here, however, the trial court found several mitigating circumstances, including Freeze’s expression of remorse, his taking of responsibility for his actions, his assertion that he has worked to improve himself while incarcerated awaiting sentencing for this offense, and his considerable support from family and friends. See footnote Under the circumstances, and giving Freeze the benefit of the (reasonable) doubt, we conclude it is appropriate to remand for resentencing. At that time, the State may elect to prove the three invalidated aggravating circumstances to a jury or to have the trial court resentence Freeze in reliance only on the three valid aggravating circumstances. Cf. Smylie, 823 N.E.2d at 691.