Robertson v. State
| Decision Date | 08 August 2007 |
| Docket Number | No. 49S05-0704-CR-152.,49S05-0704-CR-152. |
| Citation | 871 N.E.2d 280 |
| Parties | Michael ROBERTSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Kurt A. Young, Nashville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0512-CR-731.
We hold that under the sentencing laws from April 25, 2005, a court imposing a sentence to run consecutively to another sentence is not limited to the advisory sentence. Rather, the court may impose any sentence within the applicable range.
On April 20, 2002, Clyde Baker reported to the police that someone had broken into his garage and his chainsaw was missing. Baker suspected a former employee of his, Michael Robertson. The police investigated, and on June 13, 2002, Robertson was charged with one count of theft, a class D felony. Due to a series of other entanglements with the law,1 Robertson was not tried until November 16, 2005, when a jury found him guilty of the 2002 theft.
At the time of Robertson's offense, the presumptive sentence for a class D felony was one and one-half years. No more than one and one-half years could be added for aggravating circumstances, and no more than one year subtracted for mitigating circumstances. Ind.Code § 35-50-2-7(a) (2000). The trial court found that the aggravating circumstance of Robertson's criminal history outweighed the mitigating circumstance of the low value of the item stolen and sentenced Robertson to two years. It ordered the sentence to be served consecutively to a sentence Robertson had received in Hendricks County for possession of methamphetamine, a class D felony, and to any sentences Robertson might receive in two other pending cases.
Robertson appealed, arguing that (1) there was insufficient evidence to convict him of theft; (2) because his sentence was consecutive to another sentence, Indiana Code section 35-50-2-1.3 required that the advisory sentence of eighteen months be imposed and prohibited an enhanced two-year term; and (3) his enhanced sentence violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Court of Appeals rejected his first argument but agreed that Robertson's enhanced sentence was not permissible under section 35-50-2-1.3. Robertson v. State, 860 N.E.2d 621 (Ind.Ct.App.2007). The court did not discuss the merits of Robertson's Blakely claim. Id. at 622 n. 2. We granted transfer. Robertson v. State, 869 N.E.2d 455 (Ind.2007).
On June 24, 2004, the Supreme Court of the United States handed down Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which explained how the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) applies to sentencing laws. Blakely held that the Sixth Amendment right to a jury trial required 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." Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). Blakely explained that the "statutory maximum" was "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 303, 124 S.Ct. 2531 (internal quotation and emphasis omitted). The Court held that to the extent Washington's sentencing procedure permitted a judge to increase a sentence above the "statutory maximum" in violation of these principles, it violated the defendant's Sixth Amendment rights. Id. at 305, 124 S.Ct. 2531.
At the time of Robertson's theft, Indiana's sentencing laws established a "presumptive" sentence and a "range" for each class of felony and misdemeanor. A sentence could be enhanced or reduced from the presumptive sentence based on aggravating or mitigating circumstances found by the trial judge. In Smylie v. State, 823 N.E.2d 679 (Ind.2005), we held that this Indiana sentencing scheme violated the Sixth Amendment as explained in Blakely because a sentence greater than the presumptive sentence required additional facts, but those facts were neither found by a jury nor admitted by the defendant. The legislature responded to Blakely by eliminating the requirement that the sentencing judge find aggravating circumstances before imposing a sentence greater than the presumptive. Effective April 25, 2005, the legislature amended the sentencing statutes to replace "presumptive" sentences with "advisory" sentences and to authorize the sentencing court in its discretion to impose any sentence within the statutory range. P.L. 71-2005, §§ 1, 3, 4, 6-10 (codified as Ind.Code §§ 35-35-3-1, -38-1-7.1, -50-1-2, 50-2-3 to -7 (Supp. 2005)). The length of each new advisory sentence was the same as its predecessor presumptive sentence.
In addition to abolishing the "presumptive sentence," the 2005 amendments added the provision at issue here. Indiana Code section 35-50-2-1.3, P.L. 71-2005, § 5, provided
Sec. 1.3. (a) For purposes of sections 3 through 7 of this chapter, "advisory sentence" means a guideline sentence that the court may voluntarily consider as the midpoint between the maximum sentence and the minimum sentence.
(b) Except as provided in subsection (c), a court is not required to use an advisory sentence.
(c) In imposing:
(1) consecutive sentences in accordance with IC 35-50-1-2;
(2) an additional fixed term to an habitual offender under section 8 of this chapter; or
(3) an additional fixed term to a repeat sexual offender under section 14 of this chapter;
a court is required to use the appropriate advisory sentence in imposing a consecutive sentence or an additional fixed term. However, the court is not required to use the advisory sentence in imposing the sentence for the underlying offense.
Indiana Code § 35-50-1-2, to which subsection 1.3(c)(1) refers, is sometimes called the "episode" statute. Subsection 2(a) of the episode statute sets out a list of "crimes of violence." Sub-section (b) defines "episode," and subsection (c) provides that, except for crimes of violence, the total of consecutive sentences for multiple felonies committed in the same episode may not exceed the advisory sentence for felonies one class higher than the most serious of the felonies for which the defendant has been convicted.
Robertson was given a sentence of two years, which is six months longer than the advisory sentence for a class D felony, and the sentence was ordered to be served consecutively to at least one other sentence. He argues that this enhanced and consecutive sentence violated section 1.3(c)(1). Specifically, Robertson contends that a trial court must impose the advisory sentence if it orders the sentence to be served consecutive to another sentence. Thus, according to Robertson, if the trial court wanted to impose a consecutive sentence, it was required to impose the advisory sentence of one and one-half years for Robertson's class D felony.
Robertson acknowledges that section 1.3 became effective more than three years after his offense and that courts sentence a defendant under the sentencing statutes in effect at the time the defendant committed the offense. See Jacobs v. State, 835 N.E.2d 485, 491 n. 7 (Ind.2005). He seeks to invoke a "rule of lenity." Because section 1.3 was effective before his sentencing and because it would reduce his consecutive sentence from two years to one and one-half years, he contends he gets the benefit of the reduction. He cites Richards v. State, which states "a defendant who is sentenced after the effective date of a statute providing for more lenient sentencing is entitled to be sentenced pursuant to that statute rather than the sentencing statute in effect at the time of the commission or conviction of the crime." 681 N.E.2d 208, 213 (Ind.1997).
The State argues that Robertson's contention proceeds from an erroneous premise because section 1.3 does not represent an ameliorative change in the sentencing statutes. The State contends that the language in subsection 1.3(c)(1) referring to the "use" of advisory sentences for consecutive sentences refers to the maximum penalty allowed if the episode statute applies. Subsection (c) of the episode statute limits the sentence for multiple nonviolent felonies in a single episode to "the advisory sentence for a felony which is one (1) class higher than the most serious of the felonies for which the person has been convicted." The State argues that the requirement in subsection 1.3(c)(1) that the advisory sentence be "used" merely retains the earlier provision in the episode statute that capped the total sentencing for an episode at the presumptive sentence for the next highest class. Similarly, the State contends that the references to the repeat offender provisions in subsections 1.3(c)(2) and (3) serve only to retain the pre-2005 maximum terms for habitual offenders and repeat sexual offenders. As construed by the State, section 1.3 effected no amelioration because the old presumptive and the new advisory sentences are the same number of years. Thus, Robertson's claim to relief under the rule of lenity requires that the statute operate to prohibit an enhanced consecutive sentence as Robertson contends.2
The Court of Appeals agreed with Robertson and held that the language of section 1.3 was "clear and unambiguous" and imposed "a separate and distinct limitation on a trial court's ability to deviate from the advisory sentence for any sentence running consecutively." Robertson, 860 N.E.2d at 625. The Court of Appeals noted that another panel of that court had reached a different conclusion in White v. State, 849...
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