FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

KATHERINE A. CORNELIUS    STEVE CARTER
Marion County Public Defender Agency    Attorney General of Indiana
Indianapolis, Indiana
             CYNTHIA L. PLOUGHE
            Deputy Attorney General
Indianapolis, Indiana

SCOTTIE EDWARDS,        )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 49A05-0401-CR-61 
                             )
STATE OF INDIANA,            )
                             )
Appellee.                    )

Upon appeal, Edwards argues that imposition of an enhanced sentence runs afoul of the rule set forth in Blakely, supra. Before addressing the Blakely issue, we must first respond to two preliminary issues presented by the State. First, the State argues that Indiana’s sentencing scheme is not implicated by the Blakely analysis. We disagree. As held by this court in Berry v. State, 819 N.E.2d 443, 455-56 (Ind. Ct. App. 2004), we reject the State’s assertion that the presumptive sentence functions merely as a sentencing guidepost for Indiana trial courts. The rule as stated in Blakely prohibits our courts from imposing a sentence greater than the presumptive if based upon a factor not admitted by the defendant or submitted to a jury and proven beyond a reasonable doubt.
The State also argues that Edwards has waived his right to challenge his sentence under Blakely because he failed to preserve the error with the trial court. We again disagree. Here, Edwards was sentenced on January 9, 2004 and timely filed his notice of appeal on January 28, 2004. On June 24, 2004, the Blakely opinion was handed down and shortly thereafter, on July 14, 2004, Edwards filed his Appellant’s Brief presenting his Blakely argument. It is clear that newly announced constitutional rules must be applied to all cases still pending on direct review when the rule was announced. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Given that Blakely was decided after sentencing and after this appeal was initiated, this is Edwards’s first opportunity to make a Blakely argument. See footnote We will therefore address the merits of Edwards’s Blakely claim.
On January 12, 2005, the United States Supreme Court decided United States v. Booker, 125 S.Ct. 738 (2005). In a two-part split opinion, one five to four majority reaffirmed the Court’s holding in Blakely. In the second part of the decision, a different five to four majority struck down as unconstitutional certain mandatory provisions of the Federal Sentencing Guidelines. We believe that the key to an understanding of the Booker two-part opinion lies first with the fact that in Part I written by Justice Stevens, the Court clearly and unmistakably reaffirms the holdings of Apprendi and Blakely. Yet in Judge Barnes’s dissent here an interpretation is placed upon Booker which virtually emasculates both Apprendi and Blakely and their clarion call to the sanctity of the right to a trial by jury as to “any fact that increases the penalty for a crime beyond the prescribed statutory maximum . . . .” Blakely, 124 S.Ct. at 2536.
Secondly, Booker must be understood with reference to what the Justices believed to be unconstitutionally “mandatory.” One might say that because both the Federal Sentencing Guidelines and the Indiana statutory language require the sentencing court to consider certain factors, they are both “mandatory” in that sense. However, what was fatal to the provisions of the Guidelines stricken down in Booker was that the Guidelines mandated a sentence as set forth in the Guidelines themselves. As Judge Barnes’s dissent here notes, under the Indiana sentencing scheme the trial court has discretion and is not required to impose a sentence exceeding the presumptive sentence whether or not aggravating circumstances are found. It is in this respect that we conclude that Booker does not impact Indiana’s sentencing scheme.
In Blakely, the United States Supreme Court applied the rule set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), wherein the court stated, “‘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.’” The Blakely Court, relying upon the Apprendi rule, held that the sentencing scheme at issue violated the petitioner’s Sixth Amendment right to a trial by jury. 124 S.Ct. at 2543. The Court noted that precedent made clear that the “‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.” Id. at 2537 (emphasis in original). The Court further clarified, stating that the relevant statutory maximum for Apprendi purposes “is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id.
Edwards asserts that in convicting him of attempted murder, the jury was required to find only that he attacked his victim with the specific intent to kill. Edwards thus argues that the “degree of planning and preparation” was a fact not found by the jury and therefore, could not have been considered by the court as justification for imposing an enhanced sentence. We agree.
Here, although evidence tending to show planning and preparation was presented to the jury, the facts of planning and preparation need not have been found by the jury in order for the jury to have found Edwards guilty of attempted murder. Indeed, the evidence presented at trial showed that Edwards approached his victim and stabbed him approximately twelve times. His victim was treated for stab wounds to the back, arm, side, and back of the head and was also treated for a pierced lung. This evidence was sufficient from which the jury could have found that Edwards attacked his victim with intent to kill. Thus, the facts of planning and preparation are not necessarily “reflected in the jury verdict.” See footnote Under Blakely, the trial court could not itself make the finding of “planning and preparation” and then rely upon such in sentencing Edwards to an enhanced term of imprisonment. Such is a violation of Edwards’s Sixth Amendment right to trial by jury. See Aguilar v. State, 820 N.E.2d 762 (Ind. Ct. App. 2005).
While it was error for the court to consider additional facts not inherent within the jury’s verdict in sentencing Edwards, a sentence may still be upheld if there are other valid aggravating factors from which we can discern that the trial court would have imposed the same sentence. See Holden v. State, 815 N.E.2d 1049, 1060 (Ind. Ct. App. 2004), trans. denied; Powell v. State, 751 N.E.2d 311, 317 (Ind. Ct. App. 2001).
Here, we cannot say that reconsideration by the trial court without regard to the circumstances of the crime as an aggravating factor would result in the same outcome. In its sentencing statement, the trial court made clear that “[p]robably the most significant aggravating factor” was the circumstances of the offense—specifically referring to Edwards’s planning and preparation. Further, as to the remaining aggravators, we note that Edwards’s criminal history consists of only one unrelated misdemeanor battery conviction in 1996 and thus of minimal significance. See footnote With regard to the court’s finding that Edwards was in need of correctional rehabilitation which can only be provided by a penal facility or the Department of Correction, we observe that such was merely a rote recitation of the statutory aggravating factor.See footnote The trial court did not explain why the circumstance was aggravating and did not seem to afford it much weight. Given the foregoing, we must reverse Edwards’s forty-year sentence and remand to the trial court with instructions to either convene a jury for sentencing purposes or impose the presumptive sentence of thirty years for Edwards’s attempted murder conviction.See footnote
    The judgment of the trial court is reversed and the cause is remanded with instructions.
NAJAM, J., concurs.
BARNES, J., dissents with opinion.

BARNES, Judge, dissenting

I respectfully dissent. The majority here concludes that Blakely v. Washington impacts Indiana’s sentencing scheme and, therefore, a jury rather than a judge must find any “fact” other than criminal history that warrants an increase in a defendant’s sentence above the statutory presumptive. Indeed, in the months following the Blakely decision, every judge of this court who considered the issue, myself included, readily concluded that Blakely did impact Indiana’s sentencing scheme. The broad language used in the Blakely majority opinion seemed to leave little choice. The opinion followed Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), which 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 held “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.” -- U.S. --, 124 S. Ct. 2531, 2537 (2004). Because Indiana trial judges are only permitted to impose a presumptive sentence following a judgment of conviction unless they specifically “find” aggravating circumstances, it was widely believed 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 Patrick v. State, 819 N.E.2d 840 (Ind. Ct. App. 2004); Berry v. State, 819 N.E.2d 443 (Ind. Ct. App. 2004); Ryle v. State, 819 N.E.2d 119 (Ind. Ct. App. 2004); Milligan v. State, 819 N.E.2d 115 (Ind. Ct. App. 2004); Williams v. State, 818 N.E.2d 970 (Ind. Ct. App. 2004); Tursley v. State, 818 N.E.2d 110 (Ind. Ct. App. 2004); Traylor v. State, 817 N.E.2d 611 (Ind. Ct. App. 2004); Teeters v. State, 817 N.E.2d 275 (Ind. Ct. App. 2004); Strong v. State, 817 N.E.2d 256 (Ind. Ct. App. 2004); Wickliff v. State, 816 N.E.2d 1165 (Ind. Ct. App. 2004); Krebs v. State, 816 N.E.2d 469 (Ind. Ct. App. 2004); Holden v. State, 815 N.E.2d 1049 (Ind. Ct. App. 2004).
Now, the Supreme Court has decided United States v. Booker. -- U.S. --, 125 S. Ct. 738 (2005). In my view, Booker requires a significant reconsideration of our earlier holdings regarding Blakely’s impact in Indiana. See footnote It contains an important clarification and limitation on Blakely’s holding, agreed upon by all nine justices, that was not apparent in Blakely itself. Specifically, to quote Justice Stevens’ majority opinion holding that the Federal Sentencing Guidelines were unconstitutional as written:
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. . . . 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.

-- U.S. --, 125 S. Ct. at 750 (emphasis added). Justice Stevens also observed that there was “no distinction of constitutional significance” between the Federal Sentencing Guidelines and the Washington state sentencing guidelines struck down in Blakely, because “the relevant sentencing rules are mandatory and impose binding requirements on all sentencing judges.” Id. at 749-50 (emphasis added).
Justice Breyer authored an opinion for a different majority, composed of the four Blakely dissenters and with the addition of Justice Ginsburg (who also joined Justice Stevens’ opinion), holding that it was possible to render the Guidelines constitutional by severing the provisions that made them mandatory and calling for de novo appellate review of sentencing decisions. Id. at 764-65. Instead, the Guidelines are to be read as advisory only, with appellate review of sentencing decisions to be for “reasonableness.” Id. Justice Breyer explicitly stated that 18 U.S.C. 3553(b), which made the Guidelines mandatory and binding on district court judges, “is a necessary condition of the constitutional violation. That is to say, without this provision . . . the statute falls outside the scope of Apprendi’s requirement.” Id. at 764 (emphases added).
    The particular facts of Booker were that the defendant was charged with possession with intent to distribute at least 50 grams of crack cocaine, which by itself carries a sentencing range of 10 years to life. The jury specifically found that the defendant possessed 92.5 grams of crack. Under the Federal Sentencing Guidelines, this jury finding of the amount of the drug, combined with the defendant’s criminal history, placed him in a mandatory sentencing range of 210 to 262 months. However, the district court found after a bench sentencing hearing that the defendant had possessed an additional 566 grams of crack, for a total of 658.5 grams. Under the Guidelines, this fact required the district court to impose a sentence of between 360 months and life imprisonment; the district court decided to impose the minimum possible 360-month sentence.
    The Stevens majority held that this violated the defendant’s Sixth Amendment right to a jury trial. Id. at 751. The “statutory maximum” sentence for Blakely purposes authorized by the jury’s verdict and the defendant’s criminal history was 262 months. Id. The Breyer majority concluded that the remedy for this constitutional violation was, generally, to make the Federal Sentencing Guidelines advisory only across the board and to subject district court sentencing decisions to appellate “reasonableness” review. Id. at 764-65. The Court held specifically that Booker was entitled to be resentenced, and have his sentence reviewed on appeal, in accordance with the Court’s opinions. Id. at 769. Presumably, on remand Booker could be sentenced to a precisely identical 360-month sentence, above the 262 month “presumptive” maximum under the Federal Sentencing Guidelines based solely on the jury’s verdict, so long as the district court was not required to impose that sentence and a reviewing appellate court found the sentence to be reasonable.
I conclude, pursuant to Booker’s clarifications, that Blakely does not impact Indiana’s sentencing scheme. Simply put, Indiana’s sentencing scheme now somewhat resembles the Federal Sentencing Guidelines as reshaped by the Supreme Court, albeit that the Federal rules are much more explicit and precise as to what sentence ought to be imposed in response to particular facts. Indiana Code Section 35-38-1-7.1(a) applies to all non-death penalty/life without parole sentences and lists a number of factors trial courts “shall consider” when determining an appropriate sentence; subsections (b) and (c) list a number of possible aggravating and mitigating factors trial courts “may consider”; subsection (d) allows courts to develop or recognize other aggravating or mitigating circumstances. Indiana Code Sections 35-50-2-3 through –7 provide sentencing ranges for murder and Class A, B, C, and D felonies, each with a presumptive starting point to which time may be added for aggravating circumstances or subtracted for mitigating circumstances. No part of these statutes prescribes that any particular aggravating circumstance must equal a certain increase in a defendant’s sentence. In Indiana, the jury’s verdict or a plea of guilty generally only authorizes the imposition of a presumptive sentence, which would be equivalent to the 210 to 262 months sentencing range in Booker authorized solely by the jury’s verdict in that case. However, Booker makes it clear that it is acceptable for a sentencing court to rely on judge-found facts to increase a sentence above a presumptive sentence or sentencing range, so long as the court is not required to increase the sentence.
In this particular case, a jury found Edwards to have committed attempted murder, a Class A felony carrying a sentencing range of twenty to fifty years and a presumptive of thirty years. Ind. Code § 35-50-2-4. The trial court’s selection of a sentence within that range was entirely a matter within its discretion, albeit we would have found a clear abuse of that discretion if it had imposed an enhanced sentence without finding or identifying any aggravating circumstances. On the other hand, if the jury had returned a verdict for attempted murder, but the State attempted to “prove” at a bench sentencing hearing that the victim actually died and Edwards intended that death, Blakely would apply if this were sufficient to expose Edwards to the increased penalty range for murder, which is forty-five to sixty-five years or, possibly, death or life imprisonment. I.C. § 35-50-2-3. Such a judicially-found fact would mandate an increase in Edwards’ sentencing exposure and would violate Blakely. See footnote The aggravating circumstances found by the trial judge in this case, however, did not require an automatic increase in Edwards’ potential penalty either within or above the Class A felony range authorized by the jury’s verdict.
In other words, while Indiana’s sentencing scheme does not allow judges to increase a sentence above the presumptive unless they have found at least one aggravating circumstance, which seemed to run afoul of Blakely, neither does the scheme mandate judges to increase a sentence if they find aggravating circumstances, which makes the scheme constitutional under Booker. Under the Indiana sentencing scheme, judges have broad discretion to determine an appropriate sentence within a defined sentencing range, after considering the nature of the offense and character of the offender, with the caveat that they adequately explain an aggravated sentence above the statutory presumptive by identifying and weighing aggravating and mitigating (if any) circumstances. Leone v. State, 797 N.E.2d 743, 748 (Ind. 2003); Ind. Appellate Rule 7(B). See footnote Judges are not bound by statute to impose an enhanced sentence if aggravating circumstances exist. Any deviation by a judge above the statutory presumptive represents an exercise of his or her discretion. See, e.g., Buchanan v. State, 767 N.E.2d 967, 970 (Ind. 2002). Thus, an Indiana judge’s decision to enhance a defendant’s sentence above the presumptive based upon an aggravating circumstance neither found by the jury nor admitted by the defendant does not run afoul of the Sixth Amendment because the judge also enjoyed the discretion not to enhance the sentence. I believe, under Booker, that this is enough to make Indiana’s sentencing scheme fully constitutional.
As a practical matter, it is clear to me that the Supreme Court has, by the Breyer majority opinion, done its best to allow trial judges to use their collective discretion when sentencing criminal defendants. That discretion must be given, as much as it is constitutionally and statutorily possible, to Indiana trial judges. Because very few defendants come before the bar of justice with exactly the same background, criminal history or lack thereof, and various other attributes and flaws, and because no two crimes are precisely alike, I believe it is correct to read the Booker opinion to allow the present Indiana sentencing scheme to pass constitutional muster. See State v. Barker, 809 N.E.2d 312, 317 (Ind. 2004) (stating, in case concerning application of Apprendi to Indiana’s death penalty statute, that courts have “an overriding obligation to construe our statutes in such a way as to render them constitutional if reasonably possible.”).
It also appears that Edwards’ case is precisely the type of case Justice Breyer had in mind when he extolled the virtues of allowing trial judges discretion in determining an appropriate sentence as opposed to having juries determine any “facts” other than criminal history that may warrant an increased sentence. For example, Justice Breyer noted the vastly increased complexity that would result from regularly conducting jury sentencing “trials”:
How would courts and counsel work with an indictment and a jury trial that involved not just whether a defendant robbed a bank but also how? Would the indictment have to allege, in addition to the elements of robbery, whether the defendant possessed a firearm, whether he brandished or discharged it, whether he threatened death, whether he caused bodily injury, whether any such injury was ordinary, serious, permanent or life threatening, whether he abducted or physically restrained anyone, whether any victim was unusually vulnerable, how much money was taken, and whether he was an organizer, leader, manager, or supervisor in a robbery gang?

Booker, 125 S. Ct. at 761-62. Justice Breyer also notes that a successful sentencing system depends “upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction.” Id. at 759 (emphasis in original). He also astutely observes that an act that meets the statutory definition of a crime “can be committed in a host of different ways.” Id. at 760.
Most of what Justice Breyer is describing in these passages is what would fall under the “nature and circumstances” of the crime under Indiana sentencing law, and which the trial judge here relied upon in enhancing Edwards’ sentence. See footnote Like Justice Breyer, I am concerned about the workability of a system where a jury, not a judge, must evaluate and find (or not find) a potential multitude of other facts relating to how a crime was committed before an appropriate sentence may be determined. As Justice Breyer makes clear, such a system is not only impractical, but also is not required by the Sixth Amendment, so long as the finding of a particular aggravator does not mandate an enhanced sentence.
Because the majority has decided to remand for resentencing on Blakely grounds, it did not address whether Edwards’ sentence is inappropriate. I have no qualms with the appropriateness of the sentence, particularly in light of the evidence of extensive planning and stalking of the victim before the brutal knife attack. Such facts warrant an enhanced sentence in my opinion. In sum, I would affirm the sentencing decision of the trial court.