Pinkston v. State

• Decision Date: 31 October 2005
• Docket Number: No. 49A02-0412-CR-1003.,49A02-0412-CR-1003.
• Citation: 836 N.E.2d 453
• Parties: Deangelo PINKSTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

836 N.E.2d 453

Deangelo PINKSTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0412-CR-1003.

Court of Appeals of Indiana.

October 31, 2005.

COPYRIGHT MATERIAL OMITTED

Marshelle Dawkins Broadwell, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Following a jury trial, Deangelo Pinkston was found guilty of theft and auto theft, both Class D felonies. The trial court sentenced Pinkston to a four-year term of imprisonment. Pinkston now appeals his sentence. We affirm in part, reverse in part, and remand.

Issues

Pinkston raises one issue for our review, which we expand and restate as follows:

1. Whether the aggravator phase of Pinkston's bifurcated trial, in which the jury found the existence of two aggravating circumstances later used by the trial court in sentencing Pinkston, violated the Distribution of Powers Clause of the Indiana Constitution; and

2. Whether the trial court properly enhanced Pinkston's sentence.

Facts and Procedural History

On July 24, 2003, Pinkston was charged with kidnapping, a Class A felony, carjacking and robbery, both Class B felonies, and theft and auto theft, Class D felonies. On September 28, 2004, the State filed a notice of aggravating factors. This notice informed Pinkston that the State intended to prove that (1) Pinkston was in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility, and (2) imposition of a reduced sentence or suspension of the sentence and imposition of probation would depreciate the seriousness of the crime. On October 5, 2004, a jury found Pinkston guilty of theft and auto theft, but not guilty of kidnapping, carjacking, and robbery.

After the jury returned its verdict, instead of dismissing the jury, the trial court began the aggravator phase of the trial. Pinkston never raised an objection to the trial court's conducting an aggravator phase of the trial. The trial court proceeded to instruct the jury as follows:

Ladies and gentlemen of the jury and alternate jurors, normally after reaching a verdict your duty as jurors would be over. However, in this case the State has filed an additional notice of aggravating circumstances, which are additional facts that must be proven to you beyond a reasonable doubt. These aggravating circumstances relate to the sentencing phase of the trial. Under Indiana law you could not be told about the additional aggravating circumstances until now. In this part of the trial the attorneys will again have an opportunity to make opening statements. Then witnesses may be called to testify and or evidence submitted. When the evidence is completed the attorneys may make final statements. Then I will read final instructions. You may consider all of the evidence presented in the first part of the trial. . . . A notice of aggravating circumstances alleges that certain aggravating circumstances exist. . . . The State may seek to prove aggravating circumstances for the Court to consider at sentencing. In this case the State has alleged the following aggravating circumstance. Number one, the Defendant [Pinkston] is in need of correctional or rehabilitative treatment that can best be provided by commitment of the person to a penal facility. If the State fails to prove this fact beyond a reasonable doubt you must find that this aggravating circumstance does not exist. If the State does prove this fact beyond a reasonable doubt you should find that the aggravating circumstance does exist. . . . [T]he State has [also] alleged the following aggravating circumstance. Number two, imposition of a reduced sentence or suspension of the sentence or imposition of probation would depreciate the seriousness of the crime. If the State fails to prove this fact beyond a reasonable doubt you must find that this aggravating circumstance does not exist. If the State does prove this fact beyond a reasonable doubt you should find that the aggravating circumstance does exist.

Transcript at 235-37.

The State was then given the opportunity to introduce evidence. The State first called Santiago Lucas to the stand. Lucas testified that while he and Pinkston were inmates at the Marion County Jail, Pinkston kicked him in the face and punched him causing him serious injuries. The State next moved to incorporate the evidence and the verdict from the earlier phase of the trial, and the trial court granted this motion. The State last called the victim, George Burns, to testify. Burns related how Pinkston's actions had affected him and his life. The State then rested. Pinkston's counsel cross-examined Lucas, but otherwise presented no further evidence. After deliberating, the jury found that the State proved both of the charged aggravators beyond a reasonable doubt.

The trial court held a sentencing hearing on November 3, 2004. The trial court found that several aggravating factors were present. The trial court first noted that Pinkston had a criminal history. Pinkston's criminal history consisted of several juvenile adjudications including: a 1995 true finding for battery; true findings in 1998 for theft, resisting law enforcement, and disorderly conduct; true findings in 1999 for criminal mischief and theft; and a 2000 true finding for fleeing law enforcement. Pinkston's criminal history did not include any adult criminal convictions. The trial court also noted that the jury found (1) that Pinkston was in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility, and (2) that imposition of a reduced or suspended sentence would depreciate the seriousness of the offense. The trial court did not find any mitigating factors and, therefore, concluded that the aggravating factors outweighed the mitigating factors. The trial court enhanced Pinkston's conviction for theft by six months and did the same for Pinkston's auto theft conviction. With the six-month enhancement, the sentence for each of Pinkston's convictions was two years. The trial court determined that Pinkston's sentences should run consecutively for a total term of imprisonment of four years. Pinkston now appeals.

Discussion and Decision

I. Constitutionality of Aggravator Phase of Trial

Pinkston first contends that the aggravator phase of his trial violated Article 3, Section 1 of the Indiana Constitution, the Distribution of Powers Clause. The State argues that Pinkston has waived this argument by failing to object to the trial court conducting an aggravator phase of the trial. The failure to object to an error at trial results in waiver of that issue on appeal. Bruno v. State, 774 N.E.2d 880, 883 (Ind.2002). A claim of error involving a constitutional violation can be waived if the error is not properly objected to at trial. See Butler v. State, 724 N.E.2d 600, 604 (Ind.2000) (concluding that defendant waived claim under Indiana Constitution because he failed to raise an objection to the habitual offender instructions given at his trial). Here, Pinkston never objected to the trial court conducting an aggravator phase of the trial. Therefore, Pinkston has waived this issue.

Waiver notwithstanding, we conclude that the aggravator phase of Pinkston's trial did not violate the Distribution of Powers Clause of the Indiana Constitution. Article 3, Section 1 of the Indiana Constitution provides:

The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.

Pinkston argues that it is the Indiana General Assembly's responsibility to establish the procedure to be followed in order to enhance a sentence beyond the presumptive sentence. He contends that by conducting an aggravator phase of the trial, the trial court essentially re-wrote the procedures established by the General Assembly, and thereby usurped a duty assigned to the legislative branch of our state government.

The reason the trial court here added an aggravator phase to Pinkston's trial stems directly from the United States Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the United States Supreme Court reaffirmed its holding in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000), 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." The Blakely 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. In other words, 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." 124 S.Ct. at 2537 (emphasis in original).

In Smylie v. State, 823 N.E.2d 679, 681-82 (Ind.2005), cert. denied, No. 04-10472, 2005 WL 1387567, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___ (U.S. June 2, 2005), our supreme court concluded that, pursuant to Blakely, portions of Indiana's sentencing scheme violate the Sixth Amendment's right to trial by jury. The court specifically stated that "[i]t is apparent that Indiana's sentencing system runs afoul of the Sixth Amendment not because it mandates a `fixed term' sentence for each felony, but because it mandates both a fixed term and permits judicial discretion in finding aggravating or mitigating circumstances to deviate from the...