Edwards v. State

• Decision Date: 28 February 2005
• Docket Number: No. 49A05-0401-CR-61.,49A05-0401-CR-61.
• Parties: Scottie EDWARDS, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

822 N.E.2d 1106

Scottie EDWARDS, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A05-0401-CR-61.

Court of Appeals of Indiana.

February 28, 2005.

Katherine A. Cornelius, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, Scottie Edwards, challenges the forty-year sentence imposed upon his conviction for Attempted Murder, a Class A felony.¹ Specifically, Edwards argues: (1) that in sentencing him to an enhanced sentence, the trial court relied upon facts not found by a jury in violation of his Sixth Amendment right under Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and (2) that his sentence is inappropriate.

We reverse and remand.

On February 14, 2001, the State charged Edwards with attempted murder. After his first jury trial, Edwards was found guilty of attempted murder. Upon direct appeal, this court reversed Edwards's conviction and remanded for a new trial. See Edwards v. State, 773 N.E.2d 360 (Ind.Ct.App.2002),

trans. denied. Following a second jury trial conducted December 15 through December 17, 2003, Edwards was again found guilty of attempted murder, a Class A felony. The trial court held a sentencing hearing on January 9, 2004. In its sentencing statement, the court identified three aggravating circumstances and no mitigating circumstances and then sentenced Edwards to an enhanced term of forty years imprisonment.² Specifically, the court found as follows:

"In determining what sentence to impose the Court will consider the evidence presented during trial in this matter that this Judge heard, the evidence presented during the sentencing hearing today, the contents of the pre-sentence report that was done in relation to the first trial of this matter, and the addendum that was prepared for this Court. This Court also considers the risk the Defendant will commit another crime, the nature and circumstances of this crime, the defendant's prior criminal record, character and condition, the defendant's statement and the input of the victim through his brother, or the victim's family. The court finds three aggravating factors; one, the defendant has a prior history of criminal conduct. The court considers the matter contained in the pre-sentence report, it was reduced to a conviction. Also, the defendant is in need of correctional rehabilitation that can only be provided by a penal facility or the Department of Corrections. [sic] Probably the most significant aggravating factor are the facts of this case and the degree of planning and preparation that the Defendant used to stalk the victim's residence on a number of occasions including surveillance with binoculars and such that were found in his vehicle. So the degree of preparation and planning for the attempt on Mr. Ford's life that eventually culminated on the date that this incident occurred. No mitigating factors are found. In weighing the aggravating factors versus the mitigating factors the Defendant is sentenced to forty years at the Indiana Department of Corrections [sic]." Transcript at 560-61 (emphasis supplied).

Upon appeal, Edwards argues that imposition of an enhanced sentence runs afoul of the rule set forth in Blakely, supra.

Before addressing the Blakely issue, we must first respond to two preliminary issues presented by the State. First, the State argues that Indiana's sentencing scheme is not implicated by the Blakely analysis. We disagree. As held by this court in Berry v. State, 819 N.E.2d 443, 455-56 (Ind.Ct.App.2004), we reject the State's assertion that the presumptive sentence functions merely as a sentencing guidepost for Indiana trial courts. The rule as stated in Blakely prohibits our courts from imposing a sentence greater than the presumptive if based upon a factor not admitted by the defendant or submitted to a jury and proven beyond a reasonable doubt.

The State also argues that Edwards has waived his right to challenge his sentence under Blakely because he failed to preserve the error with the trial court. We again disagree. Here, Edwards was sentenced on January 9, 2004 and timely filed his notice of appeal on January 28, 2004. On June 24, 2004, the Blakely opinion was handed down and shortly thereafter, on July 14, 2004, Edwards filed his Appellant's Brief presenting his Blakely argument. It is clear that newly announced constitutional rules must be applied to all cases still pending on direct review when the rule was announced. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Given that Blakely was decided after sentencing and after this appeal was initiated, this is Edwards's first opportunity to make a Blakely argument.³ We will therefore address the merits of Edwards's Blakely claim.

On January 12, 2005, the United States Supreme Court decided United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005). In a two-part split opinion, one five to four majority reaffirmed the Court's holding in Blakely. In the second part of the decision, a different five to four majority struck down as unconstitutional certain mandatory provisions of the Federal Sentencing Guidelines. We believe that the key to an understanding of the Booker two-part opinion lies first with the fact that in Part I written by Justice Stevens, the Court clearly and unmistakably reaffirms the holdings of Apprendi and Blakely. Yet in Judge Barnes's dissent here an interpretation is placed upon Booker which virtually emasculates both Apprendi and Blakely and their clarion call to the sanctity of the right to a trial by jury as to "any fact that increases the penalty for a crime beyond the prescribed statutory maximum...." Blakely, ___ U.S. at ___, 124 S.Ct. at 2536.

Secondly, Booker must be understood with reference to what the Justices believed to be unconstitutionally "mandatory." One might say that because both the Federal Sentencing Guidelines and the Indiana statutory language require the sentencing court to consider certain factors, they are both "mandatory" in that sense. However, what was fatal to the provisions of the Guidelines stricken down in Booker was that the Guidelines mandated a sentence as set forth in the Guidelines themselves. As Judge Barnes's dissent here notes, under the Indiana sentencing scheme the trial court has discretion and is not required to impose a sentence exceeding the presumptive sentence whether or not aggravating circumstances are found. It is in this respect that we conclude that Booker does not impact Indiana's sentencing scheme.

In Blakely, the United States Supreme Court applied the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), wherein the court stated, "`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.'" The Blakely Court, relying upon the Apprendi rule, held that the sentencing scheme at issue violated the petitioner's Sixth Amendment right to a trial by jury. ___ U.S. at ___, 124 S.Ct. at 2543. The Court noted that precedent made clear that the "`statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant." Id. at 2537 (emphasis in original). The Court further clarified, stating that the relevant statutory maximum for Apprendi purposes "is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Id.

Edwards asserts that in convicting him of attempted murder, the jury was required to find only that he attacked his victim with the specific intent to kill. Edwards thus argues that the "degree of planning and preparation" was a fact not found by the jury and therefore, could not have been considered by the court as justification for imposing an enhanced sentence. We agree.

Here, although evidence tending to show planning and preparation was presented to the jury, the facts of planning and preparation need not have been found by the jury in order for the jury to have found Edwards guilty of attempted murder. Indeed, the evidence presented at trial showed that Edwards approached his victim and stabbed him approximately twelve times. His victim was treated for stab wounds to the back, arm, side, and back of the head and was also treated for a pierced lung. This evidence was sufficient from which the jury could have found that Edwards attacked his victim with intent to kill. Thus, the facts of planning and preparation are not necessarily "reflected in the jury verdict."⁴ Under Blakely, the trial court could not itself make the finding of "planning and preparation" and then rely upon such in sentencing Edwards to an enhanced term of imprisonment. Such is a violation of Edwards's Sixth Amendment right to trial by jury. See Aguilar v. State, 820 N.E.2d 762 (Ind.Ct.App.2005)

.

While it was error for the court to consider additional facts not inherent within the jury's verdict in sentencing Edwards, a sentence may still be upheld if there are other valid aggravating factors from which we can discern that the trial court would have imposed the same sentence. See Holden v. State, 815 N.E.2d 1049, 1060 (Ind.Ct.App.2004),

trans. denied; Powell v. State, 751 N.E.2d 311, 317 (Ind.Ct.App.2001).

Here, we cannot say that reconsideration by the trial court without regard to the circumstances of the crime as an aggravating factor would result in the same outcome. In its sentencing statement, the trial court made clear that "[p]robably the most significant aggravating factor" was the circumstances of the offense — specifically referring to Edwards's planning and...