845 N.E.2d 1087 (Ind.App. 2006), 43A05-0510-CR-590, Anglemyer v. State

Docket Nº43A05-0510-CR-590.
Citation845 N.E.2d 1087
Party NameAlexander J. ANGLEMYER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Case DateApril 20, 2006
CourtCourt of Appeals of Indiana

Page 1087

845 N.E.2d 1087 (Ind.App. 2006)

Alexander J. ANGLEMYER, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 43A05-0510-CR-590.

Court of Appeals of Indiana

April 20, 2006

Transfer Granted June 22, 2006.

Page 1088

Michael W. Reed, Reed & Earhart Attorneys at Law, P.C, Warsaw, for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

BARNES, Judge.

Case Summary

Alexander Anglemyer appeals his sixteen-year sentence imposed pursuant to a guilty plea. We affirm.

Issues 1

Anglemyer raises one issue, which we restate as:

I. whether the trial court properly considered the aggravating and mitigating circumstances; and

II. whether his sentence is appropriate.

Facts

On May 14, 2005, Anglemyer ordered a pizza and instructed the delivery person to bring change for a $100 bill. When the delivery person arrived with the pizza, Anglemyer "beat and robbed him." App. p. 15.

On May 16, 2005, the State charged Anglemyer with Class B felony robbery and Class C felony battery. On August 16, 2005, Anglemyer pled guilty to both counts and the State agreed to dismiss pending unrelated charges of Class A misdemeanor resisting law enforcement, Class A misdemeanor possession of marijuana, Class B misdemeanor false informing and Class C misdemeanor minor possession of alcohol. The State also agreed to dismiss a pending probation violation. The plea agreement called for an "open" sentence with the sentences on each count to run consecutively, "capped" at sixteen years executed.

The trial court sentenced Anglemyer to ten years on the robbery conviction and six years on the battery conviction and ordered the sentences to be served consecutively. The trial court considered Anglemyer's criminal history and the seriousness of the offense as aggravating circumstances

Page 1089

and his age as a mitigating circumstance. Anglemyer now appeals.

Analysis 2

I. Propriety of Anglemyer's Sentence

Anglemyer argues that the trial court improperly considered the seriousness of the offense as an aggravating circumstance and that the trial court should have considered the unlikelihood that the crime would reoccur, his remorse, his mental illness, and his guilty plea as mitigating circumstances. Because of these errors, Anglemyer contends that his sentence is improper and should be revised.

Before we address Anglemyer's claim, we observe that Anglemyer committed this offense on May 14, 2005, and was charged, convicted, and sentenced after the new sentencing system was enacted on April 25, 2005. In 1977, the General Assembly created a sentencing system calling for a fixed presumptive sentence that could be modified within a statutory range for each class of felony. If trial courts deviated from the fixed presumptive term, they were required to "(1) identify all significant mitigating and aggravating circumstances; (2) state the specific reason why each circumstance has been determined to be mitigating or aggravating; and (3) articulate the court's evaluation and balancing of circumstances." Neale v. State, 826 N.E.2d 635, 636 (Ind.2005). These changes were implemented in an effort to produce more uniform sentences. See Rodriguez v. State, 785 N.E.2d 1169, 1175 (Ind.Ct.App.2003), trans. denied.

However, in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) the Supreme Court reiterated that " '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 doubt.' " Id. at 301, 124 S.Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000)). Blakely defined "statutory maximum" as "not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Id. at 303-04, 124 S.Ct. at 2537.

Whether Blakely implicated Indiana's presumptive sentencing system became the subject of much debate. See Moon v. State, 823 N.E.2d 710, 716 (Ind.Ct.App.2005) (" Blakely implicates Indiana's sentencing scheme."), trans. denied; Edwards v. State, 822 N.E.2d 1106, 1112 (Ind.Ct.App.2005) (Barnes, J., dissenting) (concluding that pursuant to the clarifications in U.S. v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 757, 160 L.Ed.2d 621 (2005), in which the Supreme Court essentially made the federal sentencing guidelines advisory by severing and excising the illegal provisions, Blakely did not impact Indiana's sentencing system). This question was definitively resolved in Smylie v. State, 823 N.E.2d 679 (Ind.2005), cert. denied,--U.S.--, --- U.S. ----, 126 S.Ct. 545, 163 L.Ed.2d 459.

In Smylie, our supreme court observed that Indiana's then-existing sentencing

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system was the functional equivalent of the unconstitutional sentencing system in Blakely because it established a mandatory starting point--the fixed presumptive term--based on the elements necessary to prove a particular offense and trial courts were required to engage in "judicial fact-finding" before imposing a sentence greater than the fixed presumptive term. Id. at 683. The Smylie court suggested:

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.

Id. at 685. To remedy the constitutional infirmity, our supreme court held that the facts used to enhance a fixed presumptive term and envisioned by Blakely as necessitating a jury finding must indeed be found by a jury. 3 Id. at 686.

Soon thereafter, the General Assembly adopted the second option proposed in Smylie and amended our sentencing system by removing the fixed presumptive terms and replacing them with "advisory sentences." The General Assembly left the lower and upper limits for each class of offense intact and effectively created statutory sentencing ranges. See I.C. §§ 35-50-2-3 to 7. In addition to establishing advisory sentences, the General Assembly no longer required trial courts to consider certain mandatory circumstances when determining what sentence to impose. See I.C. § 35-38-1-7.1. Instead, Indiana Code Section 35-38-1-7.1 now only includes non-exhaustive lists of aggravating and mitigating circumstances that trial courts "may" consider. Further, under the revised statute, trial courts may impose any sentence that is statutorily and constitutionally permissible "regardless of the presence or absence of aggravating circumstances or mitigating circumstances." I.C. § 35-38-1-7.1(d).

Interestingly, although such sweeping revisions were made, the General Assembly retained the section requiring "a statement of the court's reasons for selecting the sentence that it imposes" if a trial court...

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