FOR PUBLICATION

ATTORNEY FOR APPELLANT :    ATTORNEYS FOR APPELLEE:

T. ANDREW PERKINS    STEVE CARTER
Peterson & Waggoner, LLP    Attorney General of Indiana
Rochester, Indiana
             KELLY A. MIKLOS
            Deputy Attorney General
            Indianapolis, Indiana

KRISTOPHER ABNEY,       )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 25A05-0407-CR-394
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

    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, Abney’s enhanced sentence is based upon the following valid aggravators: (1) Abney’s 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) Abney’s inability to abide by the law. The trial court did not attach any weight to Abney’s 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 Abney’s sentence on appeal.

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 Abney’s Sixth Amendment rights have not been violated because Blakely does not implicate Indiana’s sentencing scheme. The majority concludes that Blakely does implicate Indiana’s 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 State’s argument and held that Blakely does implicate Indiana’s 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 jury’s 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 Apprendi holding, See footnote this court held that the enhancement of a defendant’s 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 Washington’s 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 defendant’s exceptional sentence were neither admitted by him nor found by a jury, the sentence violated the defendant’s 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 Indiana’s 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 defendant’s 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. See footnote
    Earlier this year, the United States Supreme Court handed down another in the line of 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 Booker’s 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. Fanfan’s sentencing hearing was held a few days after the Court’s 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 case.
The Court held that the Sixth Amendment is violated by imposition of an enhanced sentence under the Guidelines based upon the judge’s 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 court’s 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 defendant’s 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 Indiana’s sentencing scheme grants to trial court judges the discretion to impose a sentence within a prescribed statutory range, I now believe that Indiana’s sentencing scheme passes constitutional muster as written. In essence, what remains of the federal Guidelines following Booker is substantially similar to Indiana’s existing sentencing scheme. As the Court found the reshaped federal Guidelines to be constitutional, Indiana’s is as well.
I would therefore not apply Blakely to Abney’s sentence at all, but rather consider only the trial court’s 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 majority’s result affirming his sentence.