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Tuesday, February 15, 2005

Ind. Decisions - Court of Appeals posts four today, including one fascinating concurring opinion based on Blakely/Booker

Archie Parker v. State of Indiana (2/15/05 IndCtApp) [Criminal Law & Procedure]
Barnes, Judge

Parker raises one issue, which we restate as whether the trial court properly reinstated the balance of his sentence when it revoked his parole. * * *

Conclusion. Because Meeker is distinguishable, and Parker has not established that the parole board discharged or “turned over” his sentence, the trial court properly denied his motion. We affirm.
MAY, J., and DARDEN, J., concur.


Kristina Padilla v. State of Indiana (2/15/05 IndCtApp) [Criminal Law & Procedure]
Sullivan, Judge
Appellant, Kristina Padilla, pleaded guilty to Battery as a Class A felony. Following a sentencing hearing, the trial court identified aggravating and mitigating circumstances and sentenced Padilla to an enhanced term of thirty-five years, with five years suspended and to be served on probation. Upon appeal, Padilla presents one issue for our review, whether her sentence violates the Sixth Amendment under Blakely v. Washington, 124 S.Ct. 2531 (2004). We affirm. * * *

Indeed, we discern nothing in the record which would indicate that the trial court would have imposed a lesser sentence without consideration of such fact. The other factors considered by the court as part of the nature and circumstances of the crime—that Padilla was in a position of trust with the victim and that the victim was of a tender age—are sufficient in and of themselves to warrant the enhanced sentence imposed by the court. We further observe that the trial court enhanced Padilla’s sentence by only five years, far less than the twenty-year enhancement permitted by statute. We therefore cannot conclude that the trial court erred in imposing an enhanced sentence given the valid aggravating circumstances identified by the court which are not in violation of the Sixth Amendment under Blakely. The judgment of the trial court is affirmed.
NAJAM, J., and BARNES, J., concur.

Obed A. Kalwitz, Jr., et al. v. Estate of Helen Kalwitz (2/15/05 IndCtApp) [Trusts & Estates]
Crone, Judge
Obed Kalwitz, Jr. (“Obed, Jr.”), Rolene Kalwitz (“Rolene”), Obed Kalwitz, III (“Obed, III”), and Lorene Mohlke (“Mohlke”) (collectively, “the Appellants”) appeal a judgment imposing a constructive trust on real property in favor of the estate of Obed Kalwitz, Sr. (“Obed, Sr.”), and the estate of Helen Kalwitz (“Helen”) (collectively, “the Estates” or “the Appellees”). We affirm. * * *
RILEY, J., and ROBB, J., concur.
Kristopher Abney v. State of Indiana (2/15/05 IndCtApp) [Criminal Law & Procedure]
Riley, Judge
* * * [Issues] Whether the State presented sufficient evidence to sustain Abney’s 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. * * *

Abney asserts that the trial court’s imposition of an enhanced sentence violates Blakely v. Washington, -- U.S. ---, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh’g 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 Indiana’s 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. * * *

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. Affirmed.
CRONE, J., concurs.

ROBB, J., 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.” 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. * * *

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.

Posted by Marcia Oddi on February 15, 2005 01:58 PM
Posted to Ind. App.Ct. Decisions