Young v. State
| Decision Date | 02 May 2005 |
| Docket Number | No. 49A04-0403-CR-143.,49A04-0403-CR-143. |
| Citation | 826 N.E.2d 665 |
| Parties | Randal YOUNG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Dana Childress-Jones, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Matthew D. Fisher, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Randal Young appeals the sentence imposed by the trial court following his plea of guilty to six counts of Class B felony robbery and one count of Class C felony robbery. We affirm.
The issues before us are:
During August 2003, Young robbed at least seven businesses in Indianapolis. Young or an accomplice was armed with a handgun in each of the robberies. On August 27, 2003, Young was arrested and found to be in possession of an unlicensed handgun.
The State charged Young with seven counts of Class B felony robbery, one count of Class C felony robbery, two counts of Class B felony criminal confinement, one count of Class D felony pointing a firearm, and seven counts of Class A misdemeanor carrying a handgun without a license. Young pled guilty to six counts of Class B felony robbery and one count of Class C felony robbery. The plea agreement allowed for a maximum executed sentence of fifty years with open argument as to sentencing. At the sentencing hearing, the trial court stated that it was going "to impose an aggravated sentence in light of the number of crimes within the short period of time." Tr. p. 39. It then imposed sentences of twelve years on each of the Class B felony counts with four years suspended, five years on the Class C felony count with three years suspended, and ordered the sentences to be served concurrently with the exception of three of the Class B felony sentences. Thus, the total aggregate sentence was thirty-six years with twelve suspended for an executed sentence of twenty-four years. Young now appeals.
Young contends that the trial court's sentencing procedure violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Blakely holds that every defendant has the right under the Sixth Amendment "to insist that the prosecutor prove to a jury all facts legally essential to the punishment." Id. at ____, 124 S.Ct. at 2543. Thus, Young argues that he was entitled to have a jury determine beyond a reasonable doubt whether aggravating circumstances existed before the trial court could enhance the sentences above the presumptive for each of the convictions and order some of the sentences to be served consecutively.
Blakely followed and expanded upon Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), which had held: "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." Blakely stated "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."542 U.S. 296, ____, 124 S.Ct. 2531, 2537,159 L.Ed.2d 403 (2004). Because Indiana trial judges are permitted to impose only a presumptive sentence following a jury verdict unless they specifically "find" aggravating circumstances, it has been widely accepted by members of this court that Blakely invalidated sentences where a judge enhanced a sentence based on aggravating circumstances, other than criminal history, that relied upon judicial "fact-finding." See, e.g., Berry v. State, 819 N.E.2d 443 (Ind.Ct.App.2004),trans. denied.
In January, the Supreme Court issued its follow-up to Blakely, United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in which it invalidated the Federal Sentencing Guidelines as written. Some members of this court suggested that certain language in Booker with respect to the permissibility of discretionary sentencing schemes was sufficient to save Indiana's present scheme from unconstitutionality. See Abney v. State, 822 N.E.2d 260, 269-74 (Ind.Ct.App.2005) (Robb, J., concurring in result), trans. denied; Edwards v. State, 822 N.E.2d 1106, 1110-15 (Ind.Ct.App.2005) (Barnes, J., dissenting).
Now, however, our supreme court has issued its definitive holding that Blakely does indeed impact Indiana's sentencing scheme. It has held that it "cannot see any grounds for sustaining Indiana's sentencing scheme given the Blakely holding." Smylie v. State, 823 N.E.2d 679, 683 (Ind. 2005). It also held that the remedy for this situation was to adopt a system whereby Indiana's presumptive sentencing scheme remained in place, but "modified to require jury findings on facts in aggravation...." Id. at 685.1 The court further clarified that Blakely should apply "retroactively to all cases on direct review at the time Blakely was announced" and that "a defendant need not have objected at trial in order to raise a Blakely claim on appeal...." Id. at 690-91.
Thus, there is no longer any question that Blakely applies in Indiana. It also is immaterial that Young did not raise a Sixth Amendment challenge to his sentencing procedure before the trial court. We will address Young's Blakely argument squarely on the merits. We focus in this particular case on another vexing question Blakely did not directly answer: what is a "fact" for sentencing purposes that must be found by a jury? See, e.g., Jon Wool, Vera Institute of Justice — State Sentencing and Corrections, Policy and Practice Review, Aggravated Sentencing: Blakely v. Washington — Legal Considerations for State Sentencing Systems, pp. 4-5 (Sept. 2004) ().
The central holding of Blakely is Blakely, ___ U.S. at ___, 124 S.Ct. at 2537 (emphases in original). We observe that Blakely does not require that a jury decide whether a certain fact or combination of facts constitutes an aggravating circumstance as a matter of law; the jury decides only whether facts exist that would support the judicial use of an aggravating circumstance to enhance a sentence.
In Blakely, following the defendant's plea of guilty to kidnapping, the trial court conducted a three-day evidentiary hearing during which it received the testimony of several witnesses. On the basis of this evidence and its conclusion that it indicated "deliberate cruelty" by the defendant, the trial court enhanced the sentence for kidnapping from the standard maximum presumptive of 53 months to an exceptional 90 months. The Supreme Court held that it was improper to order the enhancement because "[t]he facts supporting that finding [of "deliberate cruelty"] were neither admitted by petitioner nor found by a jury." Id. at ____, 124 S.Ct. at 2537. Thus, it appears the Supreme Court was not concerned so much with the ultimate finding of "deliberate cruelty" as it was with the trial court basing that conclusion on numerous subordinate facts that were neither found by a jury nor admitted by the defendant.
Blakely does not require that juries ultimately determine the appropriate sentence for a defendant. Blakely does not appear to impact the general notion that the delineation of what may be an aggravating circumstance and what is an appropriate sentence for an offense is left to the legislative and/or judicial branches of government. As our supreme court observed, albeit before Blakely but in applying Apprendi to our death penalty statute, "[w]e believe the pivotal inquiry ... is whether exposure to punishment is increased, not whether the punishment should or should not be imposed in a given case." Ritchie v. State, 809 N.E.2d 258, 265 (Ind.2004). What Blakely and its predecessors clearly do require is that juries must decide whether there is sufficient evidence to support the use of an aggravator and that the State cannot evade this requirement by labeling something a "sentencing factor" rather than an element of the offense. See id. (quoting Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 2439, 153 L.Ed.2d 556 (2002)).
We also note that the aggravating circumstances enumerated by the legislature in Indiana's general sentencing statute, Indiana Code Section 35-38-1-7.1(b), are expressly a non-exhaustive list; the statute allows the judiciary to independently develop and rely on aggravating circumstances not named in the statute when determining an appropriate sentence. Ind.Code § 35-38-1-7.1(d); Johnson v. State, 734 N.E.2d 242, 246 (Ind.2000). For example, it has been held in Indiana that the fact of a crime victim's pregnancy may be considered an aggravating circumstance by a trial court, although such fact is not expressly listed as an aggravating circumstance. See McCann v. State, 749 N.E.2d 1116, 1120 (Ind.2001). It is clear now that under Blakely, a jury, and not a judge, must make the initial factual determination as to whether the victim was pregnant; alternatively, the defendant may stipulate or admit to such fact or waive his or her right to a jury trial on aggravating circumstances. If the jury so finds or there is an admission or waiver, then the trial judge may consider and weigh such circumstance, or not consider it, as he or she thinks...
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