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Tuesday, December 14, 2004

Indiana Decisions - 2 from Court of Appeals, 2 from Tax Court

Foster R. Milligan v. State of Indiana (12/14/04 IndCtApp) [Criminal Law & Procedure]
Crone, Judge

* * * Milligan presents one issue for our review, which we restate as whether his sentence violates the Sixth Amendment. * * *

Milligan contends that the sentence imposed by the trial court violates the Sixth Amendment, under the rule announced in Blakely v. Washington, to have the facts supporting the enhancement of a sentence “beyond the statutory maximum” tried to a jury or admitted by the defendant. In response, the State maintains that Milligan waived this argument because he failed to object at the sentencing hearing that he had a right to have a jury determine all facts legally essential to his sentence. * * *

A panel of this court recently addressed a similar waiver argument by the State and explained why the defendant has not waived his argument: * * * Strong v. State, (Ind. Ct. App. Nov. 5, 2004) [Access ILB entry here, 3rd case]. Accordingly, we find no waiver. * * *

[B]ecause Milligan’s sentence was enhanced based on aggravating factors that were not admitted by him or found by a jury, we are constrained by Blakely and must vacate his sentence and remand for further proceedings consistent with this opinion. Remanded.
RILEY, J., and VAIDIK, J., concur.

Kenna D. Ryle v. State of Indiana (12/14/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge
In March 2003, the State charged Kenna Ryle with Murder. A jury found him guilty of the lesser-included offense of Voluntary Manslaughter, a Class A felony. The trial court entered judgment of conviction and sentenced him to an enhanced term of forty-five years. Ryle now appeals and presents the following issue for review: whether the trial court improperly imposed an enhanced sentence under Blakely v. Washington. We affirm. * * *

As we have noted, the fact of a prior conviction is an exception to Blakely. And this court has held that where an enhanced sentence is based upon a defendant’s prior criminal history and aggravators derived from that history, the Blakely analysis is not implicated. See Bledsoe v. State, 815 N.E.2d 507, 508 (Ind. Ct. App. 2004); Carson v. State, 813 N.E.2d 1187, 1189 (Ind. Ct. App. 2004). But Ryle maintains that (1) the fact that he was on probation when he committed the instant offense is not derivative of his criminal history; and (2) his juvenile adjudications are not “prior convictions” under the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Accordingly, Ryle maintains that both his probation status and his juvenile adjudications are facts the jury had to find beyond a reasonable doubt under Blakely. We disagree. * * *

Ryle’s statements during the sentencing hearing, and his failure to object to the information contained in the presentence report, amount to an admission that he was on probation at the time he committed the instant offense. Thus, the trial court’s reliance on Ryle’s probationary status to enhance his sentence does not implicate Blakely.

Since Apprendi, courts have split regarding whether juvenile adjudications qualify as “prior convictions” for purposes of the Apprendi exception. Ryle directs us to the Ninth Circuit Court of Appeals’ decision in United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001), which held that juvenile adjudications that do not afford the right to a jury trial and require a beyond-a-reasonable doubt burden of proof do not fit within Apprendi’s exception for prior convictions. But at least three jurisdictions have disagreed with the holding in Tighe. * * *

We now join those courts which disagree with the holding of the Ninth Circuit in Tighe and conclude that juvenile adjudications are “prior convictions” under Apprendi. Thus, the trial court in this case did not violate Ryle’s constitutional rights when it identified Ryle’s criminal history as an aggravating factor and included in that criminal history Ryle’s four juvenile adjudications.

In sum, the two aggravators identified by the trial court, namely, Ryle’s criminal history, which includes juvenile adjudications, and the fact that he was on probation at the time he committed the instant offense are both proper under Blakely. We therefore hold that Ryle’s enhanced sentence of forty-five years does not violate his Sixth Amendment rights. Affirmed.
BARNES, J., concurs.
SULLIVAN, J., concurs with separate opinion.
I concur but write separately with respect to the matter of Ryle’s probation status vis-à-vis Blakely v. Washington.

I agree, as determined by the majority, that Ryle effectively admitted that he was on probation at the time he committed the voluntary manslaughter for which he was here convicted. Were it not for this admission, I could not agree that, upon the authority of Bledsoe v. State, 815 N.E.2d 507 (Ind. Ct. App. 2004), trans. pending, the fact of being on probation does not implicate Blakely. As suggested in Teeters v. State, 817 N.E.2d 275 (Ind. Ct. App. 2004), trans.pending, the fact of a defendant being on probation might well be a matter outside the confines of the documents setting forth the defendant’s prior criminal record. If so, and if the probation status has not been admitted by defendant, the fact of probation would seem to be a matter of fact necessary for the jury to determine.
____
We reject the State’s arguments that (1) Ryle has waived his Blakely challenge, and (2) Blakely does not implicate Indiana’s sentencing scheme, for the reasons set forth in Strong v. State, 2004 WL 2481190 (Ind. Ct. App. November 5, 2004).

Graham Creek Farms v. Indiana Department of State Revenue (12/13/04 IndTaxCt) [Sales and Use Tax]
Fisher, J.
Graham Creek Farms (Graham) challenges the final determination of the Indiana Department of State Revenue (Department) denying its claim for refund of sales and use tax paid for the 1993, 1994, and 1995 tax years (years at issue). The issue for the Court to decide is whether Graham is entitled to several sales and use tax exemptions for certain items purchased for use in its farming operation. * * * [Fact specific]

For the aforementioned reasons, the Court AFFIRMS in part, and REVERSES and REMANDS in part, the Department’s final determination. On remand, the Department is ordered to refund the amount of sales and use tax Graham paid for the years at issue, plus any penalties and interest related thereto, consistent with this opinion.

Morton Buildings, Inc. v. Indiana Department of State Revenue (12/13/04 IndTaxCt) [Use Tax]
Fisher, J.
Morton Buildings, Inc. (Morton) appeals the final determination of the Indiana Department of State Revenue (Department) denying its claim for refund of use taxes it paid from January 1, 1993 through September 30, 1998 (the period at issue). The issue for this Court to decide is whether the raw materials Morton purchased and used out of state to make building components, that were eventually assembled into prefabricated buildings in Indiana, are subject to Indiana use tax. * * *

Conclusion. The raw materials Morton purchased at retail were consumed in the out-of-state production process and, therefore, never used in Indiana. Furthermore, the materials that were used in Indiana—the building components—were not acquired at retail but were instead fabricated by Morton. Accordingly, Indiana Code § 6-2.5-3-2 does not apply and Morton is not subject to the use tax. The Department’s final determination is, therefore, REVERSED and the Department is ordered to refund Morton the use taxes paid during the period at issue.

Posted by Marcia Oddi on December 14, 2004 02:12 PM
Posted to Indiana Decisions