Howell v. State, 82A01-0606-CR-241.

• Decision Date: 27 December 2006
• Docket Number: No. 82A01-0606-CR-241.,82A01-0606-CR-241.
• Citation: 859 N.E.2d 677
• Parties: Misty Marie HOWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

859 N.E.2d 677

Misty Marie HOWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-0606-CR-241.

Court of Appeals of Indiana.

December 27, 2006.

COPYRIGHT MATERIAL OMITTED

Matthew Jon McGovern, Evansville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Misty Marie Howell appeals her sentence for reckless homicide as a class C felony.¹ Howell raises two issues, which we restate as:

I. Whether Howell's sentence violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004);

II. Whether the trial court abused its discretion in sentencing Howell; and

III. Whether Howell's sentence is inappropriate in light of the nature of the offense and the character of the offender.

We reverse and remand.

The relevant facts follow. On February 20, 2004, K.H. died, and Howell was indicted for neglect of a dependent as a class A felony and reckless homicide as a class C felony.² Howell pleaded guilty to reckless homicide as a class C felony, and the State dismissed the remaining charge. Howell admitted that "on or about February 20, 2004, [she] did recklessly kill [K.H.] . . . ." Appellant's Appendix at 13; Transcript at 5-6.

At Howell's sentencing hearing on April 11, 2006, her counsel argued that Howell had sought, received, and successfully completed drug treatment to overcome her methamphetamine addiction. Her counsel also stated:

As all cases like this are, it's a tragedy. The child was sleeping with her when he died. The police found [K.H.] with his face into the cushions. The initial opinion of the doctor was that this was death by affixation [sic]. It did do blood tests and he had a toxic, not a lethal but a toxic level of pseudoephedrine in this [sic] system. The therapeutic level, I think tops out, and this is in one of the reports, tops out about 900 or so nanograms per milliliter. He had a level of 3000 and something nanograms per milliliter according to the materials that we've included in the proffer to the Court. The lethal level, not the toxic level where you start having problems, but the lethal level is 19,000 nanograms per milliliter and I think a fair appraisal of the evidence would indicate that was probably a combination of sleeping with the child on a couch and constricting the child's airways and the overmedicating the child with pseudoephedrine which caused the death.

Transcript at 22. The sentencing hearing was continued by agreement of the parties so that the trial court judge could talk to the trial court judge presiding over the CHINS case concerning Howell's children.

At the final sentencing hearing on May 12, 2006, the State presented additional testimony from Officer Mark Decamps of the Evansville Police Department. Officer Decamps testified that on April 19, 2006, after the sentencing hearing had been continued, he had initiated a traffic stop on Howell due to speeding. Howell did not have a valid driver's license and "seemed to be really nervous." Id. at 31. Officer Decamps arrested Howell for driving while suspended and performed an inventory of her vehicle. In Howell's purse and vehicle, Officer Decamps discovered several boxes of pseudoephedrine-based cold tablets. Howell informed Officer Decamps that she had bought the pills to sell to a methamphetamine producer for $20 per box.

The trial court stated that the evidence concerning the April 19, 2006, incident would not be considered as an aggravator. Specifically, the trial court stated:

However the issue that the Court had taken this additional time to consider, specifically as I recall at the Defendant's request, was whether or not there was a genuine effort on behalf of the Defendant to rehabilitate herself and whether her drug participation and the drug counseling that had been available through CHINS Court and under Judge Niemeier's supervision had in fact effectuated a genuine rehabilitation on her part. I think the evidence that the State presented today goes not to establish aggravating circumstance but to prove or disprove the existence of a mitigating circumstance and so it will be considered for that.

Id. at 39. The trial court then found three aggravating factors: (1) Howell's criminal history; (2) the victim, K.H., was less than twelve years of age; and (3) Howell was in a position of trust with K.H. because Howell was K.H.'s mother. The trial court found no mitigating circumstances. The trial court sentenced Howell to the maximum sentence of eight years in the Indiana Department of Correction.

I.

The first issue is whether Howell's sentence violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).³ On June 24, 2004, the United States Supreme Court decided Blakely, which held that, other than the fact of a prior conviction, facts supporting an enhanced sentence must be admitted by the defendant or found by a jury. Blakely, 542 U.S. at 303-304, 124 S.Ct. at 2537; Cotto v. State, 829 N.E.2d 520, 527 n. 2 (Ind.2005). In Smylie v. State, the Indiana Supreme Court held that Blakely was applicable to Indiana's sentencing scheme and required that "the sort of facts envisioned by Blakely as necessitating a jury finding must be found by a jury under Indiana's existing sentencing laws." 823 N.E.2d 679, 686 (Ind.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 545, 163 L.Ed.2d 459 (2005). The Indiana Supreme Court later noted that "Blakely and the later case United States v. Booker[, 543 U.S. 220, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005),] indicate that there are at least four ways that meet the procedural requirements of the Sixth Amendment in which such facts can be found and used by a court in enhancing a sentence." Mask v. State, 829 N.E.2d 932, 936 (Ind.2005).

[A]n aggravating circumstance is proper for Blakely purposes when it is: 1) a fact of prior conviction; 2) found by a jury beyond a reasonable doubt; 3) admitted to by a defendant; or 4) stipulated to by the defendant, or found by a judge after the defendant consents to judicial fact-finding, during the course of a guilty plea in which the defendant has waived his Apprendi rights.

Id. at 936-937 (citing Trusley v. State, 829 N.E.2d 923, 925 (Ind.2005)). According to Howell, each of the three aggravators used to enhance her sentence violates Blakely.

A. Prior Criminal History.

Howell concedes that "[t]he Blakely opinion clearly states that prior criminal convictions need not be submitted to a jury for proof beyond a reasonable doubt." Appellant's Brief at 7. However, according to Howell, the subsequent decision of Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), "signaled the end to this exception." Id.

In Almendarez-Torres v. United States, the Supreme Court upheld a federal law allowing a judge to impose an enhanced sentence based on prior convictions not alleged in the indictment. 523 U.S. 224, 242-247, 118 S.Ct. 1219, 1230-1233, 140 L.Ed.2d 350 (1998). The Supreme Court reaffirmed this holding in its subsequent decisions of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Apprendi, the Court held that "[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." Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. In Blakely, the Court clarified "that the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303, 124 S.Ct. at 2537. Blakely did not disturb Apprendi's exception for prior convictions.

Then, in Shepard, the Supreme Court considered what sources a trial court may properly consult in determining whether a prior conviction contained the necessary elements to serve as a predicate violent felony under the Armed Career Criminal Act ("ACCA"). Shepard, 544 U.S. at 15-17, 125 S.Ct. at 1257; see Trusley, 829 N.E.2d at 926. A plurality of the Court explained that, while a dispute over whether a burglary was a violent felony for purpose of the ACCA could be "described as a fact about a prior conviction, it [was] too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311, (1999)] and Apprendi to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute." Id. at 25, 125 S.Ct. at 1262.

In a concurring opinion, Justice Thomas noted:

[T]he plurality today refines the rule of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and further instructs district courts on the evidence they may consider in determining whether prior state convictions are § 924(e) predicate offenses. Taylor and today's decision thus explain to lower courts how to conduct factfinding that is, according to the logic of this Court's intervening precedents, unconstitutional in this very case. The need for further refinement of Taylor endures because this Court has not yet reconsidered Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which draws an exception to the Apprendi line of cases for judicial factfinding that concerns a defendant's prior convictions. See Apprendi, supra, at 487-490, 120 S.Ct. 2348, 147 L.Ed.2d 435.

Almendarez-Torres, like Taylor, has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. See 523 U.S., at 248-249, 118 S.Ct. 1219 (Scalia,...