Morgan v. State
| Decision Date | 15 June 2005 |
| Docket Number | No. 20S04-0506-CR-00277.,20S04-0506-CR-00277. |
| Citation | 829 N.E.2d 12 |
| Parties | Lisa C. MORGAN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Kenneth R. Martin, Goshen, for Appellant.
Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, for Appellee.
Lisa Morgan has appealed her sentence for dealing methamphetamine on a variety of grounds, including an adequately preserved claim under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Her appeal produces three conclusions about post-Blakely sentencing under our then existing code: 1) aggravators that may be found by a judge alone must still be weighed to determine whether they warrant sentence enhancement; 2) sentence enhancements may rest upon facts acknowledged by the defendant; and 3) observations a court makes about such factors may reflect on the weight of acknowledged facts or prior convictions but are not themselves separate aggravators.
On September 23, 2003, Lisa Morgan was arrested while attempting to arrange the sale of methamphetamine to an undercover police officer. Following her apprehension, police searched Morgan and her vehicle and uncovered thirty-eight grams of methamphetamine, several items of drug paraphernalia, and a drug ledger.
The State charged Morgan for possession of methamphetamine in excess of three grams with intent to deliver, a class A felony. Ind.Code Ann. § 35-48-4-1 (West 2004). Morgan eventually pled guilty to the charge pursuant to a plea agreement that dismissed an unrelated charge of theft pending against her.
At a sentencing hearing on April 1, 2004, the court found four aggravating circumstances: 1) Morgan had a prior class B felony conviction for delivery of a controlled substance; 2) she committed the offense while she was on probation; 3) she intended to sell the methamphetamine for profit; and 4) that previous punishments had failed to rehabilitate Morgan. The trial court also found five mitigating factors: 1) Morgan's age; 2) her willingness to accept responsibility for her conduct; 3) Morgan's history of psychological issues; 4) her drug addiction; and 5) the existence of family support.
After concluding that the aggravating factors outweighed the mitigating factors, the court added five years to the standard fixed term of imprisonment, for a total penalty of thirty-five years.
Morgan appealed her sentence. In an amended brief, Morgan advanced two contentions. First, she claimed that the sentencing court considered improper aggravators and wrongly balanced the aggravating and mitigating factors. Second, she argued that U.S. Supreme Court's ruling in Blakely v. Washington required her sentence be set aside because the aggravators were not found by a jury. (Appellant's Am. Br. at 5.)
The Court of Appeals rejected both of Morgan's arguments. Morgan v. State, 820 N.E.2d 179, No. 20A04-0404-CR-00239, slip op. at 4-9 (Ind.Ct.App., Dec.7, 2004). We grant transfer.
Morgan properly preserved her Blakely claim by challenging her sentence in her initial brief, even though she did not specifically mention Blakely until the filing of an amended brief. See Smylie v. State, 823 N.E.2d 679, 689-91 (Ind.2005).
At the core of both of Morgan's arguments is a challenge to the propriety of the aggravators. The trial court found four: 1) Morgan's prior conviction; 2) that she committed the offense while she was on probation; 3) that she intended to sell the methamphetamine for profit; and 4) that previous punishments had failed to rehabilitate Morgan. Morgan argues that the last three of these aggravators were improperly considered either because they should have been submitted to a jury, or because the trial court improperly applied and weighed legitimate aggravators. (Pet. to Transfer at 4-5.)
We note that the State readily conceded that the third aggravator, that Morgan intended to sell the drugs for profit, was improper (Appellee's Am. Br. at 5.) and we agree that the trial court erred in considering this as an aggravating circumstance.
Morgan concedes that the trial court could find that her prior conviction for delivery of a controlled substance was an aggravating circumstance without submitting the question to a jury, consistent with the Sixth Amendment. Her concession is based on the fact that the general Sixth Amendment rule that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury" contains an exception for "the fact of a prior conviction." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See also Smith v. State, 825 N.E.2d 783 (Ind.2005). However, Morgan asserts that it is "questionable,..., as to whether [her] criminal record, standing alone, [is] a sufficient aggravator to support any enhancement above the presumptive term." (Appellant's Am. Br. at 17.)
While a sentence enhanced because it is based on the fact of a prior conviction does not violate the Sixth Amendment, the question of whether the sentence should be enhanced and to what extent turns on the weight of an individual's criminal history. This weight is measured by the number of prior convictions and their seriousness, by their proximity or distance from the present offense, and by any similarity or dissimilarity to the present offense that might reflect on a defendant's culpability.
We Indiana judges often recite that "a single aggravator is sufficient to support an enhanced sentence." While there are many instances in which a single aggravator is enough, this does not mean that sentencing judges or appellate judges need do no thinking about what weight to give a history of prior convictions. The significance of a criminal history "varies based on the gravity, nature and number of prior offenses as they relate to the current offense." Wooley v. State, 716 N.E.2d 919, 929 n. 4 (Ind.1999). We observed in Wooley that Id. A different example might help illustrate the same point. A conviction for theft six years in the past would probably not, standing by itself, warrant maxing out a defendant's sentence for class B burglary. But, a former conviction for burglary might make the maximum sentence for a later theft appropriate. See also Hollen v. State, 761 N.E.2d 398 (Ind.2002).
Certainly not all cases will produce as clear-cut a separation between significant and nonsignificant prior convictions as these examples. The need for clarity and careful weighing, made by reference to appropriate prior criminal convictions, is more pronounced than ever given the increased importance prior criminal convictions play in the sentencing process in a post-Blakely world.
Morgan's class B conviction for delivering a controlled substance was certainly worthy of some weight because of the similarity and proximity to the present offense. Given the number of mitigating factors found by the court, however, we think that her criminal record, standing on its own, would not support the imposition of the enhanced sentence.
Morgan contends that only a jury could find the second aggravator considered by the court — that she had committed the present crime while on probation for another offense.
Morgan's appeal does not actually present this question, because Morgan acknowledged during the sentencing hearing the fact that she was on probation. The exchange between the trial judge and Morgan on this point is as follows:
The Court: [Y]ou and your counsel convinced Judge Platt to send you to the Indiana Department of Corrections for ten years but suspend it and put you on probation..... Right?
Ms. Morgan: Yes.
The Court: And then you got arrested for theft while you were on probation from Judge Platt. Correct?
Ms. Morgan: Yes.
The Court: And five months later you got arrested for this charge. Correct?
Ms. Morgan: Yes....
The Court: There's no question you're guilty of this offense. Correct?
Ms. Morgan: Yes.
The Court: There's no question you had a prior felony, and you were out dealing while you were on probation for dealing. Correct?
Ms. Morgan: Yes.
>(Tr. at 13, 15.)
Because Morgan admitted to the fact that she was on probation at the time of her arrest it was permissible for the trial court to consider that fact as an aggravating circumstance without submitting it to a jury. As the Court in Blakely stated, Blakely, 542 U.S. at ___, 124 S.Ct. at 2541. See also United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005) ()...
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