Attorneys for Appellant                    Attorneys for Appellee
Steve Carter                             Monica Foster        
Attorney General of Indiana                    Foster & Long-Sharp

Stephen R. Creason                        Brent Westerfeld
Deputy Attorney General                        Indianapolis, Indiana
Indianapolis, Indiana
______________________________________________________________________________

    This is an interlocutory appeal of a trial court order dismissing the State's request for the death penalty and ordering a sentencing proceeding where a term of years is the only option. We reverse and remand for reinstatement of the death penalty request.

    The defendant, Charles E. Barker, was convicted of two counts of murder and one count each of kidnapping, confinement, burglary, and carrying a handgun without a license. The jury recommended and the trial court imposed the death penalty. Because the penalty phase jury was not instructed on the possibility of life without parole, as required by statute, we reversed and remanded for a new penalty phase proceeding. Barker v. State, 695 N.E.2d 925 (Ind. 1998). On remand, the defendant successfully moved to dismiss the death penalty request on grounds that Indiana's death penalty statute was facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We reversed and again remanded for the new penalty phase proceeding. State v. Barker, 768 N.E.2d 425 (Ind. 2002). The new proceedings would be governed by the 2002 amendment to the Indiana death penalty/life without parole statute, which applies to defendants sentenced after June 30, 2002. Ind. Code § 35-50-2-9(e).

The defendant again moved to dismiss the death penalty request upon grounds not previously asserted. The trial court granted the motion, concluding that Indiana's amended death penalty statute is unconstitutional, dismissing the death penalty request, and directing that this cause be scheduled for a sentencing proceeding where a term of years is the only available option. Upon the State's request, the trial court certified its order for interlocutory appeal. Because the Court of Appeals has jurisdiction over interlocutory appeals, Ind. App. R. 14(B)(1), we granted the State's petition to transfer before consideration by the Court of Appeals, App. R. 56(A), and we accepted appellate jurisdiction over the interlocutory appeal. App. R. 14(B)(1).

    In its interlocutory appeal of the trial court order, the State contends that the trial court erred in concluding that, because it does not require a penalty phase jury to find that mitigating circumstances outweigh aggravating circumstances beyond a reasonable doubt, the Indiana death penalty statute was unconstitutional. The State's appeal argues that weighing is not a "fact" that requires proof beyond reasonable doubt under Apprendi and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). It also urges that the Ring requirement for a jury to find beyond a reasonable doubt any fact that makes a murder defendant eligible for the death penalty applies only to aggravating circumstances under the Indiana scheme. The State argues that it is these circumstances, not the "outweighing" factor, that determine a murder defendant's eligibility to be considered for the death sentence.

    In response, the defendant argues that under the Ring/Apprendi rule, the focus must be on the effect of the factor on sentencing. Where any factor is required to support a sentence higher than that authorized by the guilty-phase jury's verdict, the defendant asserts, that factor is equivalent to an element that must be proven beyond a reasonable doubt. He urges that, because the imposition of a death sentence in Indiana requires the penalty phase jury to find that "any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances," Ind. Code § 35-50-2-9(l), the Ring/Apprendi rule mandates that such "weighing" factor be proven beyond a reasonable doubt.

    After briefing was completed in this case, this Court addressed the same question in Ritchie v. State, ___ N.E.2d ___ (Ind. 2004). There we held that "[n]either federal constitutional doctrine under Apprendi and Ring nor Indiana state jurisprudence leads to the requirement that weighing be done under a reasonable doubt standard." Id. at ___ (slip op. at 8). After a careful evaluation of substantially the same arguments and a review of decisions from other jurisdictions, we concluded that "the Indiana Death Penalty Statute does not violate the Sixth Amendment as interpreted by Apprendi and Ring. Once a statutory aggravator is found by a jury beyond a reasonable doubt, the Sixth Amendment as interpreted in Ring and Apprendi is satisfied." Id. at ___ (slip op. at 10).
    
    Because there is no constitutional requirement that the weighing factor be found beyond a reasonable doubt, the omission of such a requirement in the Indiana death penalty statute does not violate the constitution. The trial court erred in its conclusion to the contrary.

    Barker's procedural history does not include a hung jury. As explained supra, the defendant's penalty phase jury unanimously recommended a sentence of death, but due to instruction error, we reversed and remanded for a new penalty phase procedure. The issue now presented is the validity not of his previous penalty phase jury determination but of the procedure that would govern his retrial.

The State's written argument to the trial court includes the following: "The State concedes that the procedure set forth in IC 35-50-2-9(f), if it were followed by a trial court in sentencing a defendant to death (or to life without parole), would be in violation of Ring." Appellant's Appendix at 142. We decline to accept the concession. As noted in Ritchie, the federal constitution requires aggravating circumstances to be determined by a jury beyond a reasonable doubt, but "it does not require the weighing, whether by judge or jury, to be under a reasonable doubt standard." ___ N.E.2d at ___ (Slip op. at 8). The statute now requires the trial court to "provide a special verdict form for each aggravating circumstance alleged." Ind. Code § 35-50-2-9(d). It is thus conceivable that a penalty phase jury could return a verdict finding one or more aggravators proven beyond a reasonable doubt, but be unable to reach unanimous agreement on whether any mitigating circumstances are outweighed by the aggravating circumstances. See footnote Where a jury is thus unanimous in finding one or more aggravating circumstances proven beyond a reasonable doubt but unable to agree on a sentence recommend ation, Subsection 9(f) applies to instruct that the court shall "discharge the jury and proceed as if the hearing had been to the court alone." In this event the trial court shall, based upon the evidence presented to the penalty phase jury, impose a sentence of death or life without parole upon a full and proper analysis and sentencing statement, see Harrison v. State, 644 N.E.2d 1243, 1261-1262 (Ind. 1995), or it may impose a term of years.

In the event a penalty phase jury is unable to reach a unanimous decision as to the existence of aggravating circumstances, however, Ring and Apprendi would prohibit the trial judge from proceeding under Subsection 9(f) and a new penalty phase trial would be required. Bostick v. State, 773 N.E.2d 266, 273-74 (Ind. 2002). We are not persuaded that a penalty phase retrial under these circumstances should be treated any differently than a hung jury in an ordinary guilty phase trial: a mistrial should be declared and the case submitted to a new jury. See State v. McMillan, 409 N.E.2d 612 (Ind. 1980); Hinton v. State, 397 N.E.2d 282 (Ind. 1979); Harlan v. State, 190 Ind. 322, 130 N.E. 413 (1921).

We additionally observe, however, that even if Subsection 9(f) were unconstitutional as Barker alleges, it could be severed without impairing the validity of the remainder of the statute. The trial court correctly noted that the hung jury provision of the statute could be subtracted without invalidating the entire statute, citing Brady v. State, 575 N.E.2d 981, 988-89 (Ind. 1991). Appellant's Appendix at 216. See footnote We applied this procedure in Bostick, 773 N.E.2d at 273-74, where a jury was unable to reach a unanimous determination finding the qualifying aggravating circumstances beyond a reasonable doubt, and the trial judge then imposed a sentence under the hung jury provision of Subsection 9(f). See footnote Applying Apprendi and Ring, we vacated the trial court's sentence and remanded for a new sentencing proceeding.
    
    As noted in Brownsburg Area Patrons v. Baldwin, 714 N.E.2d 135, 141 (Ind. 1999), this Court has an overriding obligation to construe our statutes in such a way as to render them constitutional if reasonably possible. "If a statute can be construed to support its constitutionality, such construction must be adopted." Burris v. State, 642 N.E.2d 961, 968 (Ind. 1994). As noted in State v. Monfort, 723 N.E.2d 407, 415 (Ind. 2000) and In re Public Law No. 154-1990, 561 N.E.2d 791, 793 (Ind. 1990), this Court has adopted the test for severability used in Dorchy v. Kansas, 264 U.S. 286, 289-90, 44 S.Ct. 323, 324, 68 L.Ed. 686, 689-90 (1924) (internal citations omitted):
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.
The key question is whether the legislature "would have passed the statute had it been presented without the invalid features." State v. Kuebel, 241 Ind. 268, 278, 172 N.E.2d 45, 50 (1961).
    
The text of subsection 9(f) has long been a part of the Indiana statute governing sentences of death and life imprisonment without parole. Before the 2002 amendment, the statute provided that the jury would make a sentencing recommendation, but the trial court was assigned the responsibility for determining the sentence, and it was not bound by the jury's recommendation. Subsection 9(f) provided that, in the absence of a unanimous decision of the sentencing jury, the trial judge would proceed to determine the sentence without the jury's recommendation. The 2002 amendment shifted the final sentencing decision to the jury, stating: "If the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly." Ind. Code § 35-50-2-9(e). Even though the amendment assigned the jury the primary responsibility for the sentencing decision, it did not delete subsection 9(f) from the statute. If subsection 9(f) were to be judicially severed, we are convinced that the legislature fully intended the remainder of the Indiana death penalty/life without parole statute to stand because its absence would not impair the operation of the remainder of the statute. We maintain, however, that subsection 9(f) should not be stricken at all. As discussed above, we reject Barker's constitutional challenge to subsection 9(f).

We hold that Subsection 9(f) is not unconstitutional as written, but that it may not be constitutionally applied to permit a judge to impose a sentence where a jury has been unable to decide whether the aggravating circumstance or circumstances have been proven beyond a reasonable doubt. This does not impede the State's request for the death penalty in Barker's case.

Although the 2002 amendment did not alter the prior statute's use of the word "recommend," subsection 9(e) as amended now explicitly states: "If the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly." Ind. Code § 35-50-2-9(e). Under the statute, "there is only one sentencing determination, which is done by the jury." Stroud, ___ N.E.2d at ___ (slip op. at 15). "The judge must apply the jury's determination." Id. We assume that jury instructions will make this clear to the jury during the new penalty phase proceedings.

The defendant also expresses concern that the provision calling for the jury to receive a special verdict form, Ind. Code § 35-50-2-9(d), leads to the conclusion that "the court remains free to sentence to death where a jury finds statutory aggravation even if it unanimously recommends a sentence less than death." Br. of Appellee at 38. As discussed above in Part 2, a judge may determine the sentence under Subsection 9(f) if a penalty phase jury unanimously finds one or more aggravating circumstances proven beyond a reasonable doubt. Where a jury finds aggravating circumstances but decides against the death penalty (or against life imprisonment without parole), however, we conclude that with its 2002 amendment to Subsection 9(e) requiring the court to sentence a defendant "accordingly," the legislature did not intend to permit a trial court to order a penalty expressly rejected by the jury. The amendment did more than add the following language to Subsection 9(e): "If the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly." Acts 2002, Public Law 117, Section 2. It also deleted prior language providing that "[t]he court shall make the final determination of the sentence, after considering the jury's recommendation . . . . The court is not bound by the jury's recommendation." Id. We therefore hold that once a penalty phase jury reaches a recommendation against the death penalty (or life imprisonment without parole), a trial court may not thereafter enter judgment providing for a greater sentence. See footnote

    In recent cases, this Court has addressed this issue and determined that application of the Indiana death/life without parole statute as amended in 2002 to prior murders involving sentencing after June 30, 2002, does not violate constitutional provisions prohibiting ex post facto laws. Helsley v. State, ___ N.E.2d ___, ___ (Ind. 2004) (slip op. at 10); Stroud, ___ N.E.2d at ___ (slip op. at 17); Ritchie, ___ N.E.2d at ___ (slip opin at 6).

Shepard, C.J., concurs.
Sullivan, J., concurs with separate opinion.
Boehm, J., concurs, except as to the description of the effect of the 2002 amendments to the Death Penalty Statute, as to which his views are set forth in his separate opinion in Helsley v. State, __ N.E.2d __ (Ind. 2004) (slip op. at 15).

Rucker, J., concurs in result with separate opinion.

Having said that, I would nonetheless not declare the weighing portion of the death penalty statute unconstitutional. “[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is ‘fairly possible,’ we are obligated to construe the statute to avoid such problems.” Id. (quoting I.N.S. v. St. Cyr, 533 U.S. 289, 299-300 (2001)). Rather, I would simply construe I.C.§ 35-50-2-9(l) as implicitly requiring the jury to find beyond a reasonable doubt that any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances. Thus construed the statute would be consistent with the dictates of Apprendi and Ring.