Smylie v. State

• Citation: 823 N.E.2d 679,126 S. Ct. 545
• Decision Date: 09 March 2005
• Docket Number: No. 41S01-0409-CR-408.,41S01-0409-CR-408.
• Parties: Adolphe E. SMYLIE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

823 N.E.2d 679

126 S. Ct. 545

Adolphe E. SMYLIE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 41S01-0409-CR-408.

Supreme Court of Indiana.

March 9, 2005.

Robert W. Hammerle, Joseph M. Cleary, Indianapolis, IN, Attorneys for Appellant.

Ann M. Sutton, Kathleen M. Sweeney, Marion County Public Defender Agency, Michael R. Limrick, Indianapolis, IN, Joel M. Schumm, Indiana University School of Law-Indianapolis, Attorneys for Amicus Curiae.

Steve Carter, Attorney General of Indiana, Grant H. Carlton, Ellen H. Meilaender, Deputy Attorneys General, Attorneys for Appellee.

Kim Hall, Stephen J. Johnson, Indiana Prosecuting Attorneys Council, Attorneys for Amicus Curiae.

ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 41A01-0309-CR-339.

SHEPARD, Chief Justice.

Introduction

In this appeal and several similar cases, the defendants challenge the constitutionality of their sentences under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The U.S. Supreme Court's latest word on the constitutionality of sentencing schemes is just eight weeks old. United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Attempting to take account of both Blakely and Booker, we hold today that portions of Indiana's sentencing scheme violate the Sixth Amendment's 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.

Facts and Procedural History

On separate occasions from May 2001 through May 2002, Smylie molested his step-daughter B.J., who was under the age of 14 at the time. The State initially charged Smylie with two counts of child molesting, a class C felony. Ind.Code Ann. § 35-42-4-3(b) (West 2004). It later amended the charges to two counts of child solicitation, a class D felony. Smylie pled guilty to the amended charges.

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) Smylie's 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.

I. Indiana's Sentencing System Is Unconstitutional

A. Our "Fixed Terms" Are Much Like Washington's Presumptive Ranges

On June 24, 2004, the U.S. Supreme Court issued its decision in Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Writing for a 5-4 majority, Justice Scalia declared that Blakely's sentence, enhanced based on various facts found by the sentencing judge, violated Blakely's Sixth Amendment right to a jury trial. Id. at ___, 124 S.Ct. 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 Washington's Sentencing Reform Act, the standard sentencing range for Blakely's 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. § 9.94A.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 Washington's sentencing scheme, the Court began by reiterating the Sixth Amendment rule announced in Apprendi v. New Jersey:¹ "[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 ___, 124 S.Ct. 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 ___, 124 S.Ct. 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 ___, 124 S.Ct. at 2537-38. Washington's sentencing procedure, to the extent it allowed a judge to increase the sentence above the "statutory maximum" based on the judge's findings, violated the Sixth Amendment. Id. at ___, 124 S.Ct. 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 Indiana's sentencing scheme given the Blakely holding. Indiana's 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 Smylie's 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 (1½) years, with not more than one and one-half (1½) 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, Indiana's "fixed term" is the functional equivalent of Washington's "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.² It is this type of judicial fact-finding that concerned the Court in Blakely. "When a judge inflicts punishment that the jury's 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 Indiana's 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. (Appellee's Resp. Pet. Transfer at 6.) According to the State, Indiana's 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. Indiana's felony sentencing statutes provide "fixed terms" and allow departures only if aggravating or mitigating factors are found.³ 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. Trowbridge v. State, 717 N.E.2d 138, 149 (Ind.1999).

Second, the State's argument runs contrary to the interpretation of the Indiana statutory scheme...