ATTORNEY FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
T. ANDREW PERKINS STEVE CARTER
Peterson & Waggoner, LLP Attorney General of Indiana
KELLY A. MIKLOS
Deputy Attorney General
COURT OF APPEALS OF INDIANA
KRISTOPHER ABNEY, )
vs. ) No. 25A05-0407-CR-394
STATE OF INDIANA, )
APPEAL FROM THE FULTON SUPERIOR COURT
The Honorable Wayne E. Steele, Judge
Cause No. 25D01-0307-FC-103
February 15, 2005
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Appellant-Defendant, Kristopher Abney (Abney), appeals his conviction for Count I, possessing material capable
of causing bodily injury by inmate, a Class C felony, Ind. Code §
Abney raises four issues on appeal, which we consolidate and restate as the
following two issues:
Whether the State presented sufficient evidence to sustain Abneys conviction for possessing material
capable of causing bodily injury by inmate; and
Whether the trial court properly sentenced Abney in light of Blakely v. Washington.
FACTS AND PROCEDURAL HISTORY
At approximately 2:30 a.m. on June 22, 2003, Jail Commander Jeff Berlasty (Commander
Berlasty) of the Fulton County Jail, received a report that the inmates of
cellblock #3 refused to retire to their cells for the nightly lock-down.
Cellblock #3 consists of a common area, surrounded by four cells, with two
cells upstairs and two cells downstairs. Although each cell only contains one
bunk bed, on June 22, 2003, cellblock #3 held seven inmates. Three
inmates were required to sleep on a mattress on the floor of their
respective cells. Abney was assigned to the lower right-hand cell of cellblock
Upon his arrival at cellblock #3, Commander Berlasty performed a search of the
cells. During this search, the inmates were removed and held in a
separate area. While searching Abneys cell, Commander Berlasty recovered, besides Abneys personal
effects, an item described as an altered binderclip. In addition, he found
a small item partially inserted into a vent in the wall of Abneys
cell. Commander Berlasty characterised this item as a shank, and described it
as a hardened steel object with one end wrapped in a face cloth
secured by a string and the other end sharpened to a point.
The steel portion of this item originated from the altered binderclip found among
Abneys personal effects. Following the search, Commander Berlasty confronted Abney with the
discovery of the altered binderclip and shank. Although Abney admitted that he
knew the shank was in the vent, he denied possession of it, and
instead claimed that another inmate had left it there.
On July 9, 2003 the State filed an information against Abney, charging him
with Count I, possessing material capable of causing bodily injury by inmate, a
Class C felony. On April 9, 2004, the State filed an amended
information. On April 21 through April 22, 2004, a jury trial was
held. At the close of the evidence, the jury returned a guilty
verdict on Count I. On July 7, 2004, after a sentencing hearing,
the trial court sentenced Abney to an executed sentence of seven years, to
be served at the Department of Correction.
Abney now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
First, Abney contends that the State did not present sufficient evidence to sustain
his conviction for possessing material capable of causing bodily injury by inmate.
Specifically, Abney claims that the State failed to prove beyond a reasonable doubt
that he constructively possessed the device since he did not have exclusive use
of his cell.
Our standard of review with regard to sufficiency claims is well-settled. In
reviewing sufficiency of the evidence claims, this court does not reweigh the evidence
or judge the credibility of the witnesses. Williams v. State, 714 N.E.2d
671, 672-73 (Ind. Ct. App. 1999). We only consider the evidence most
favorable to the judgment and the reasonable inferences therefrom and will affirm if
there is substantial evidence of probative value to support the conclusion of the
trier-of-fact. Id. at 673. This court has held that a conviction
for the crime charged may be based on circumstantial evidence. Marrow v.
State, 699 N.E.2d 675, 677 (Ind. Ct. App. 1998); Duren v State, 720
N.E.2d 1198, 1201 (Ind. Ct. App. 1999), trans. denied. Reversal is only
appropriate when reasonable persons would be unable to form inferences as to each
material element of the offense. Mabbitt v. State, 703 N.E.2d 698, 700
(Ind. Ct. App. 1998).
The offense of possessing material capable of causing bodily injury by inmate as
a Class C felony is defined by I.C. § 35-44-3-9.5, in pertinent part,
as: [a] person who knowingly or intentionally while incarcerated in a penal
facility possesses a device, . . . that: (1) is used; or
(2) intended to be used; in a manner that is readily capable of
causing bodily injury commits a Class C felony. Thus, in order to convict
Abney, the State was required to prove that: (1) he knowingly possessed
a device while incarcerated, and (2) that the device is intended to be
used in a manner that is readily capable of causing bodily injury.
Here, the State prosecuted Abney under the theory of constructive possession after conceding
that Abneys cell was not under his exclusive possession. It is well-established
that constructive possession occurs when a defendant has both (i) the intent to
maintain dominion and control over the device and (ii) the capability to maintain
dominion and control over the item in question. Gee v. State, 810
N.E. 2d 338, 340 (Ind. 2004). The proof of a possessory interest
in the premises on which the device is found is adequate to show
the capability to maintain dominion and control. See id. at 341.
In essence the law infers that the party in possession of the premises
is capable of exercising dominion and control over all items on the premises.
See id.; Martin v. State, 372 N.E.2d 1194, 1197 (1978) (a house
or apartment used as a residence is controlled by the person who lives
in it and that person may be found in control of any drugs
discovered therein, whether he is the owner, tenant, or merely an invitee.).
This applies regardless whether the possession of the premises is exclusive. Gee,
810 N.E.2d at 341.
In the instant case, Commander Berlasty testified that although cellblock #3 was overcrowded
on June 22, 2003, Abney was the sole occupier of the lower right-hand
cell. Even though the record supports that inmates were free to move
between cells during the day, Abneys cell contained only his mattress and his
personal possessions. Therefore, we conclude that Abney was in possession of his
cell and thus capable of exercising dominion and control over all items discovered
on these premises. See id.
However, the law takes a different view with regard to the intent prong
of constructive possession. When a defendants possession of the premises on which
the device is found is not exclusive, then the inference of intent to
maintain dominion and control over the device must be supported by additional circumstances
pointing to the defendants knowledge of the nature of the device and its
presence. See id. These additional circumstances can be found through a
variety of means: (1) incriminating statements made by the defendant; (2) attempted
flight or furtive gestures; (3) location of substances like drugs in settings that
suggest manufacturing; (4) proximity of the contraband to the defendant; (5) location of
the contraband within the defendants plain view; and (6) the mingling of the
contraband with other items owned by the defendant. Id.
In the case at bar, Commander Berlasty testified that the device was partially
inserted into a vent in Abneys cell with the part secured by a
cloth sticking out into the cell. He stated that even though the
sharpened end of the device was inserted into the vent, the other end
was visible from the cell and did not take long to be discovered
during the search. Commander Berlasty elaborated that the sharpened end of the
device was constructed of hardened steel, originating from an altered binderclip. The
record shows that this altered binderclip was found on the desk of Abneys
cell, amongst his other personal possessions. Furthermore, in his statement to Sergeant
Edward Beaird of the Fulton County Sheriffs Department, Abney admitted to knowing that
the device was in his cell. As a result we conclude that
Abney intended to maintain dominion and control over the device.
Next, Abney asserts that the State failed to prove beyond a reasonable doubt
that the device was used or intended to be used in a manner
readily capable of causing bodily injury. See I.C. § 35-44-3-9.5. We
agree with Abney that the phrase intended to be used is part of
the relative clause, modifying the antecedents in a manner that is readily capable
of causing bodily injury and is not indicative of his level of culpability.
See Hevenor v. State, 784 N.E.2d 937, 941 (Ind. Ct. App. 2003).
Rather, the culpability level for I.C. § 35-44-3-9.5 is clearly defined in
the opening sentence as a person who knowingly or intentionally . . .
During trial, Commander Berlasty described the device as a hardened piece of steel,
sharpened to a point. He elaborated its usage as a defensive weapon,
easily capable of causing bodily injury to guards, other inmates, and the public
in general. Based on Commander Berlastys testimony, we conclude that the jury
could reasonably infer that the device was intended to be used in a
manner readily capable of causing bodily injury. See I.C. § 35-44-3-9.5; see
Williams, 714 N.E.2d at 672-73.
However, Abney now urges us to discard Commander Berlastys testimony regarding the characterization
of the device because of his limited time of employment in his current
position. Nevertheless, Abneys assertion amounts to nothing more than an invitation to
reweigh Commander Berlastys testimony. We decline this invitation.
In light of the evidence before us, we conclude that the jury could
reasonably find that Abney was an inmate, possessing material capable of causing bodily
injury. The record clearly indicates that Abney had both the intent and
capability to maintain dominion and control over the device and that the device
was intended to be used in a manner capable of causing bodily injury.
See I.C. § 35-44-3-9.5. Accordingly, we find that there is substantial
evidence of probative value to support the conclusion of the jury. See
Williams, 714 N.E.2d at 672. Consequently, we hold that the State presented
sufficient evidence to support Abneys conviction.
Next, Abney asserts that the trial courts imposition of an enhanced sentence violates
Blakely v. Washington, -- U.S. ---, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),
rehg denied. Specifically, Abney contends that the trial court erred by enhancing
his sentence based on aggravators which were not supported by jury findings.
Conversely, the State maintains that Indianas sentencing scheme differs from the one struck
down in Blakely and that it therefore does not run afoul of the
Sixth Amendment. Alternatively, the State claims that, even if Blakely should apply,
any error in this case is harmless beyond a reasonable doubt.
Blakely v. Washington
The determination of the appropriate sentence rests within the discretion of the trial
court and we will not reverse the trial courts determination absent a showing
of manifest abuse. Powell v. State, 751 N.E.2d 311, 314 (Ind. Ct.
App. 2001). In Blakely, however, the United States Supreme Court held that
the Sixth Amendment requires a jury to determine beyond a reasonable doubt the
existence of aggravating factors used to increase the sentence for a crime above
the presumptive sentence assigned by the legislature. Blakely, 124 S.Ct. at 2536.
Specifically, the Supreme Court held that [o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
statutory maximum must be submitted to a jury and proved beyond a reasonable
doubt. Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The Supreme Court defined this statutory
maximum as 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 2537. (emphasis in original). 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.
Id. (emphasis in original). Furthermore, we are convinced that the
Supreme Courts recent opinion in United States v. Booker, 543 U.S. ---, ----
(2005) (Stevens, J., writing for the Court) does not alter the Blakely rule
as it applies in Indiana. As Justice Stevens espoused, Any fact (other
than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved by a jury
beyond a reasonable doubt. Id, slip op. at 20. This statement
is reinforced by Justice Breyer writing that, the Court holds that .
. . the Sixth Amendment requires juries, not judges to find facts relevant
to sentencing. Id., slip op. at 2.
Accordingly, we concluded in Krebs v. State, 816 N.E.2d 469, 475 (Ind. Ct.
App. 2004), that it appeared that our trial courts no longer have discretion
to sentence a criminal defendant to more than the presumptive sentence unless the
defendant waives his right to a jury at sentencing, a jury first determines
the existence of aggravating factors, or the defendant has a criminal history.
Indianas Sentencing Scheme
As its main argument, the State maintains that Blakely does not apply to
Indianas sentencing scheme. In particular, the State alleges that Blakely does not
require jury findings under Indianas sentencing scheme because a presumptive sentence is merely
a guidepost which enables the trial court to impose an appropriate sentence.
We are not convinced.
We recently held that because in Indiana the presence of a single aggravating
circumstance may lead to an enhanced sentence, i.e., one greater than the presumptive
sentence, the presumptive sentence equates to Blakelys statutory maximum. See Strong v.
State, 817 N.E.2d 256, 261 (Ind. Ct. App. 2004); Holden v. State, 815
N.E.2d 1049, 1059 n.6 (Ind. Ct. App. 2004); Berry v. State, 819 N.E.2d
443, 456 (Ind. Ct. App. 2004). Based on this newly, established caselaw,
we reject the States assertion that the presumptive sentence functions as a sentencing
guidepost. Consistent with our prior decisions, we hold that Blakely prohibits our
trial courts from imposing a sentence greater than the presumptive one based on
a factor not admitted by the defendant or submitted to the jury and
proven beyond a reasonable doubt.
Use of Aggravating Circumstances
In the instant case, the trial court sentenced Abney to an enhanced sentence
of seven years for possessing material capable of causing bodily injury by inmate
as a Class C felony. Indiana Code section 35-50-2-6 provides that a
person who commits a Class C felony shall be imprisoned for a fixed
term of four years, with not more than four years added for aggravating
circumstances or not more than two years subtracted for mitigating circumstances. Our
review of the elaborate sentencing order reveals that the trial court enhanced Abneys
sentence based on the following aggravators: (1) Abneys prior juvenile and adult
criminal history that indicates a consistent inability to conform his conduct to the
law and rules of society; (2) Abneys prior criminal history indicates a high
risk of future criminal behavior; (3) the crime for which Abney was convicted
was committed while incarcerated for another alleged crime and while on probation for
a Class B felony burglary conviction; and (4) past probation and short jail
term have not deterred Abney from violating the law, demonstrating an inability to
abide by the law, to reform his behavior and a disdain for the
trial courts sentencing authority. In balancing these aggravators, the trial court specifically
addressed Abneys proffered mitigators but did not assign them any weight.
Abney now asserts error in the trial courts findings of the four aggravators.
In particular, Abney alleges that (1) juvenile adjudications do not constitute prior
convictions and thus must be supported by jury findings under Blakely; (2) several
adult charges listed in the trial courts sentencing order resulted in dismissals, rather
than convictions, and thus should be found by a jury; (3) the trial
courts aggravator that, based on his criminal history, Abney has a high risk
of committing future criminal behavior should be found by a jury; and (4)
the trial court impermissibly used a material element of the offense to enhance
Abneys sentence. We will discuss each of these arguments in turn.
In this courts recent opinion of Ryle v. State, --- N.E.2d --- (Ind.
Ct. App. Dec. 14, 2004), we specifically held that juvenile adjudications are considered
prior convictions under Apprendi, and thus can be properly identified by the trial
court without any prior finding by the jury. However, our review of
Abneys juvenile adjudications shows that only two charges of the total four charges
resulted in formal adjudications. As a result, we conclude that only these
two formal adjudications can be characterized as aggravators for the purpose of enhancing
With regard to Abneys adult criminal history, the record lists six separate offenses.
The record reflects that two of these six offenses were dismissed.
In light of Blakelys clear language that [o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
statutory maximum must be submitted to a jury and proved beyond a reasonable
doubt, the dismissed offenses cannot be used as aggravators without a specific
finding by a jury. See Blakely, 124 S.Ct. at 2536. No
such finding was made in the instant case; accordingly, we conclude that only
four offenses can be properly used as the basis of the aggravating circumstance.
Further, we find that the trial courts generalized aggravators relating to Abneys possible
future criminal conduct and inability to conform his behavior to the law and
rules of society fall outside the scope of Blakely. The trial court
clearly based its assessment of Abneys future behavior on Abneys current juvenile and
adult criminal history. Even though we found that several offenses listed in
his criminal history cannot be used as aggravators, nevertheless, his history remains impressive,
and properly supported the trial courts generalized aggravator. As we have held
before, where an enhanced sentence is based upon a defendants prior history and
aggravators derived of that history, the Blakely analysis is not implicated. See
Bledsoe v. State, 815 N.E.2d 507, 508 (Ind. Ct. App. 2004), opinion on
rehg; Carson v. State, 813 N.E.2d 1187, 1189 (Ind. Ct. App. 2004).
Lastly, Abney argues that the trial court used a material element of the
instant offense as an aggravator. In its sentencing order, the trial court
listed as aggravator the crime for which [Abney] was convicted was committed while
incarcerated for another alleged crime and while on probation for a Class B
felony burglary conviction. (Appellants App. p. 24). Yet, Indiana Code section
35-44-3-9.5 requires, as an element of the crime of possessing material capable of
causing bodily injury by inmate, that the person charged be incarcerated in a
penal facility. Thus, we agree that the trial courts finding of Abneys
incarceration is an improper aggravator since it is also a material element of
the crime. See Donnegan v. State, 809 N.E.2d 966, 978 (Ind. Ct.
App. 2004) (holding that a material element of an offense cannot be used
to enhance a sentence). However, we find that the trial courts finding
that Abney committed the instant offense while on probation for a burglary conviction
is a proper aggravator because it is derivative of Abneys criminal history, and
consequently, no Blakely analysis is triggered. See Bledsoe, 815 N.E.2d at 508.
Nonetheless, if one or more aggravating circumstances cited by the trial court are
found invalid on appeal, we must next decide whether the remaining circumstance or
circumstances are sufficient to support the sentence imposed. See Patrick v. State,
---N.E.2d --- (Ind. Ct. App. Dec. 23, 2004). As we explained in
Means v. State, 807 N.E.2d 776, 778 (Ind. Ct. App. 2004), trans. denied
Even one valid aggravating circumstance is sufficient to support an enhancement of a
sentence. When the sentencing court improperly applies an aggravating circumstance but other
valid aggravating circumstances exist, a sentence enhancement may still be upheld. This
occurs when the invalid aggravator played a relatively unimportant role in the trial
courts decision. When a reviewing court can identify sufficient aggravating circumstances to
persuade it that the trial court would have entered the same sentence even
absent the impermissible factor, it should affirm the trial courts decision. When
a reviewing court cannot say with confidence that the impermissible aggravators would have
led to the same result, it should remand for re-sentencing by the trial
court or correct the sentencing on appeal.
Here, the trial court identified four aggravators. While we invalidated some parts
of these four aggravating circumstances under Blakely, we did not outright reject a
single aggravating factor. As a result, Abneys enhanced sentence is based upon
the following valid aggravators: (1) Abneys criminal history consisting of two juvenile
adjudications and four adult convictions; (2) his high risk to exhibit future criminal
behavior; (3) the instant offense was committed while on probation for burglary; and
(4) Abneys inability to abide by the law. The trial court did
not attach any weight to Abneys proffered mitigators. Given the importance of
these four aggravating circumstances, combined with the non-existence of any mitigating factors, we
refuse to hold that the trial court would have imposed a different sentence.
See id. Therefore, we find that the trial court did not
err by imposing an enhanced sentence. Accordingly, we are not in a
position to revise Abneys sentence on appeal.CONCLUSION
Based on the foregoing, we find that the State presented sufficient evidence to
convict Abney of the offense of possessing material capable of causing bodily injury
by inmate, and the trial court did not err when it sentenced Abney
to seven years executed, three years beyond the presumptive sentence for that crime.
CRONE, J., concurs.
ROBB, J., concurs in result with opinion.
COURT OF APPEALS OF INDIANA
KRISTOPHER ABNEY, )
) No. 25A05-0407-CR-394
STATE OF INDIANA, )
ROBB, Judge, concurs in result with opinion.
I concur fully with respect to Part I of the majority opinion.
However, I respectfully concur in result only with respect to Part II.
The State contends that Abneys Sixth Amendment rights have not been violated because
Blakely does not implicate Indianas sentencing scheme. The majority concludes that Blakely
does implicate Indianas sentencing scheme and prohibits our trial courts from imposing a
sentence greater than the presumptive one based on a factor not admitted by
the defendant or submitted to the jury and proven beyond a reasonable doubt.
Slip op. at 10. I, too, previously have rejected the States
argument and held that Blakely does implicate Indianas sentencing scheme. See Williams
v. State, 818 N.E.2d 970, 975 (Ind. Ct. App. 2004); Traylor v. State,
817 N.E.2d 611, 622 (Ind. Ct. App. 2004). However, I believe a
recent United States Supreme Court opinion has shed further light on the Apprendi/Blakely
issue and now believe that the issue of the applicability of Blakely in
Indiana merits reconsideration.
In Apprendi, the Supreme 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. 530 U.S. at 490. In that case, the defendant
entered a plea of guilty to two counts of second-degree possession of a
firearm for an unlawful purpose and one count of third-degree unlawful possession of
an antipersonnel bomb. Under New Jersey state law, a second-degree offense carried
a penalty range of five to ten years and a third-degree offense carried
a penalty range of three to five years. As part of the
plea agreement, the State reserved the right to request the court impose a
higher enhanced sentence for one of the second-degree offenses on the ground that
the offense was committed with a biased purpose pursuant to the state hate
crime statute. The defendant reserved the right to challenge the enhancement.
At the plea hearing, a factual basis for the three charged counts was
established and the trial court confirmed that the defendant understood the possible maximum
sentences for each count. The trial court accepted the guilty plea and
the State then made a formal motion for an enhanced term. The
trial court held an evidentiary hearing on the enhancement and concluded the evidence
supported a finding by a preponderance of the evidence that the crime was
motivated by racial bias and undertaken with a purpose to intimidate. The
court accordingly found that the hate crime enhancement applied, and sentenced the defendant
to a twelve-year term of imprisonment for the count at issue. The
Supreme Court held that the sentence was impermissible because it was greater than
the ten-year maximum for the offense charged; despite the fact that New Jersey
labeled the hate crime statute a sentencing factor, a finding that the defendant
violated the statute exposed the defendant to a greater punishment than authorized by
the jurys verdict and must therefore be proven beyond a reasonable doubt.
Id. The Court also noted, however, that
nothing in this history [of due process and the right to trial by
jury] suggests that it is impermissible for judges to exercise discretion taking
into consideration various factors relating both to offense and offender in imposing
a judgment within the range prescribed by statute. . . . [O]ur
periodic recognition of judges broad discretion in sentencing . . . has been
regularly accompanied by the qualification that that discretion was bound by the range
of sentencing options prescribed by the legislature.
Id. at 481 (internal citations omitted).
Subsequently, in the first reported case in Indiana to consider application of the
See footnote this court held that the enhancement of a defendants sentence pursuant
to Indiana Code section 35-50-2-11 did not offend due process under the
Apprendi standard. Parker v. State, 754 N.E.2d 614, 618-19 (Ind. Ct. App.
2001). Section 35-50-2-11 provides, in relevant part:
(c) The state may seek, on a page separate from the rest of
a charging instrument, to have a person who allegedly committed an offense sentenced
to an additional fixed term of imprisonment if the state can show beyond
a reasonable doubt that the person knowingly or intentionally used a firearm in
the commission of the offense.
(d) If after a sentencing hearing a court finds that a person who
committed an offense used a firearm in the commission of the offense, the
court may sentence the person to an additional fixed term of imprisonment of
five (5) years.
The defendant in Parker was charged with robbery as a Class A felony
for an incident during which a man was shot twice. The charging
information alleged that the defendant committed the robbery while armed with a handgun.
The jury was given alternative theories upon which it could convict the
defendant of the Class A felony: serious bodily injury to the victim,
the use of or threat of use of force, or the use of
a handgun. The jury found him guilty as charged, although the verdict
did not reveal upon which theory it determined guilt. The trial court
sentenced the defendant to forty years for the robbery conviction, enhanced by an
additional five years pursuant to section 35-50-2-11. The defendant argued on appeal
that the enhancement was unconstitutional. We held otherwise, noting that regardless of
the theory upon which the jury found him guilty, the jury had to
have determined beyond a reasonable doubt that a gun was used. Id.
at 618. Moreover, in reference to the prescribed statutory maximum language from
Apprendi, we noted that a Class A felony has a sentencing range from
a presumptive thirty year sentence to a maximum sentence of fifty years and
defendant was sentenced to forty years plus a five-year enhancement; therefore, application of
the enhancement did not increase the maximum penalty for his offense. Id.
at 618 n.7. We have recently noted that this language from Parker
impliedly held that the prescribed statutory maximum under our sentencing statutes referred to
the maximum sentence in the statutory sentencing range that a defendant could receive
for his offense. Williams, 818 N.E.2d at 976.
In 2004, the United States Supreme Court decided Blakely, and expanded upon Apprendi
by further defining the prescribed statutory maximum as
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) (internal citations omitted). In
Blakely, the defendant was initially charged with first-degree kidnapping in Washington. Pursuant
to a plea agreement, the defendant pled guilty to second-degree kidnapping involving domestic
violence and use of a firearm. Under Washingtons sentencing statutes, the offense
of second-degree kidnapping with a firearm carried a standard range of forty-nine to
fifty-three months. However, the trial court could enhance a sentence above the
standard range if it found certain aggravating factors, including that the defendant had
acted with deliberate cruelty. Finding that the defendant acted with deliberate cruelty,
the trial court in Blakely sentenced the defendant to ninety months. The
Supreme Court held that because the facts surrounding the defendants exceptional sentence were
neither admitted by him nor found by a jury, the sentence violated the
defendants Sixth Amendment right to trial by jury. Id. at 2538.
The Court specifically noted that the federal Sentencing Guidelines were not at issue
and expressed no opinion about the constitutionality of the federal Guidelines. Id.
at 2538 n.9.
Blakely caused great confusion among lower courts charged with imposing sentences in its
wake. In Indiana, appellants almost immediately began raising the issue to attack
their judicially-enhanced sentences and the State countered that Blakely was inapplicable in Indiana.
Backing off the earlier Parker formulation of the prescribed statutory maximum as
the maximum sentence in the statutory range, we determined that the maximum sentence
a judge may impose in Indiana without additional findings is the presumptive sentence
and therefore, Blakely does implicate our sentencing scheme. See Traylor, 817 N.E.2d
at 622 (Under Indiana law, after a jury returns a guilty verdict, the
trial court can only impose the presumptive sentence, as outlined in the statute,
without finding any additional facts. Therefore, the presumptive sentence for an offense
is the prescribed statutory maximum for Apprendi/Blakely purposes.); Strong, 817 N.E.2d 256, 262
(Ind. Ct. App. 2004) ([I]nasmuch as Indianas present sentencing procedure allows a trial
court, without the aid of a jury, to enhance a sentence where certain
factors are present, it violates a defendants Sixth Amendment right to have a
jury determine all facts legally essential to his or her sentence, pursuant to
Blakely.). No appellate decision directly addressing the issue has yet decided otherwise.
Earlier this year, the United States Supreme Court handed down another in the
Apprendi/Blakely cases and addressed the question specifically left unanswered in Blakely
regarding the constitutionality of the federal Guidelines. United States v. Booker, ---
U.S. ---, 2005 WL 50108 (2005). Booker was actually two consolidated cases.
In the first, Booker was charged with possession with intent to distribute
at least fifty grams of crack. The jury heard evidence that he
had 92.5 grams of crack in his duffel bag when arrested and found
him guilty of the charge. Based upon Bookers criminal history and the
quantity of drugs found by the jury, the federal Sentencing Guidelines required a
base sentence between 210 and 262 months. At a sentencing hearing, the
judge concluded by a preponderance of the evidence that Booker had possessed an
additional 566 grams of crack and that he was guilty of obstructing justice.
Based upon these findings, the Guidelines mandated a sentence between 360 months
and life imprisonment. The judge sentenced Booker to 360 months. In
the second case, Fanfan was charged with conspiracy to distribute and to possess
with intent to distribute at least 500 grams of cocaine. The jury
found that Fanfan had possessed 500 or more grams of cocaine with the
intent to distribute. Under the Guidelines, the maximum sentence authorized by the
jury finding was 78 months. Fanfans sentencing hearing was held a few
days after the Courts decision in Blakely. The trial court found additional
facts by a preponderance of the evidence that, under the Guidelines, would have
authorized a sentence of 188 to 235 months. However, based upon Blakely,
the trial court declined to enhance the sentence based upon its additional findings
and imposed a sentence that was based solely on the guilty verdict in
The Court held that the Sixth Amendment is violated by imposition of an
enhanced sentence under the Guidelines based upon the judges determination of a fact
that was not found by a jury or admitted by the defendant.
Id. at *15. The Court expressly reaffirmed its holding in Apprendi that
any fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved
to a jury beyond a reasonable doubt. Id. In so holding,
however, the Court also echoed language from Apprendi concerning the constitutional difference between
mandatory and discretionary sentencing schemes:
If the Guidelines as currently written could be read as merely advisory provisions
that recommended, rather than required, the selection of particular sentences in response to
differing sets of facts, their use would not implicate the Sixth Amendment.
We have never doubted the authority of a judge to exercise broad discretion
in imposing a sentence within a statutory range. See Apprendi, 530 U.S.
at 481 . . . . Indeed, everyone agrees that the constitutional
issues presented by these cases would have been avoided entirely if Congress had
omitted from the [Sentencing Reform Act] the provisions that make the Guidelines binding
on district judges . . . . For when a trial judge
exercises his discretion to select a specific sentence within a defined range, the
defendant has no right to a jury determination of the facts that the
judge deems relevant.
Id. at *8 (some internal citations omitted). The remedy the Court fixed
for the constitutional violation was to excise those provisions of the Guidelines which
made them mandatory and binding upon trial judges. It is the language
from Booker regarding trial court discretion in sentencing, coupled with the remedy the
Court chose to render the Guidelines constitutional, that I believe requires we reconsider
the effect of Blakely on our sentencing scheme. I believe it is
no longer possible to read Blakely in isolation.
Blakely held that under any sentencing scheme, a trial court can exceed the
prescribed statutory maximum and not implicate the Sixth Amendment if the defendant has
a criminal history or admits additional facts supporting enhancement. What Booker adds
to the discussion is that under a discretionary sentencing scheme, the Sixth Amendment
is not implicated at all. It is true, as our earlier cases
have stated, that in Indiana, the presumptive sentence is the only sentence the
trial court can impose without making any additional findings. See, e.g., Ind.
Code § 35-50-2-6 (A person who commits a Class C felony shall be
imprisoned for a fixed term of four (4) years, with not more than
four (4) years added for aggravating circumstances or not more than two (2)
years subtracted for mitigating circumstances.). However, the additional findings and the sentencing
impact thereof are entirely within the trial courts discretion.
Although Indiana Code section 35-38-1-7.1 contains a list of seven factors which the
trial court shall consider in determining what sentence to impose for a crime
in addition to a non-exhaustive list of aggravating and mitigating circumstances which
the trial court may consider no particular additional penalty is required to
be imposed upon a finding of any one or more of those factors.
In Indiana, any sentence above or below the presumptive is discretionary.
The fact that a trial court judge is required to consider certain factors
does not necessarily mean that a defendants sentence will be enhanced. In
fact, even a finding of criminal history or facts admitted by the defendant
would not necessarily require enhancement. The judge may find a certain aggravating
factor to exist, but assign minimal weight to the factor and decline to
enhance the sentence; the judge may determine that the aggravating factor is balanced
by mitigating factors and decline to enhance the sentence; the judge may determine
that the aggravating factor is outweighed by mitigating factors and reduce the sentence;
or the judge may simply decline to find the factor at all.
Booker specifically states that discretionary sentencing schemes do not implicate the Sixth Amendment:
when a trial judge exercises his discretion to select a specific sentence
within a defined range, the defendant has no right to a jury determination
of the facts that the judge deems relevant. 2005 WL 50108 at
*8 (emphasis added). Because Indianas sentencing scheme grants to trial court judges
the discretion to impose a sentence within a prescribed statutory range, I now
believe that Indianas sentencing scheme passes constitutional muster as written. In essence,
what remains of the federal Guidelines following Booker is substantially similar to Indianas
existing sentencing scheme. As the Court found the reshaped federal Guidelines to
be constitutional, Indianas is as well.
I would therefore not apply Blakely to Abneys sentence at all, but rather
consider only the trial courts discretion in finding the aggravating circumstances and enhancing
his sentence. Because I believe the trial court properly exercised its discretion
in sentencing Abney, I concur in the majoritys result affirming his sentence.
No case since
Parker and prior to Blakely has squarely addressed the
application of Apprendi in any context other than a death penalty case.
Our supreme court currently has several cases raising a