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Tuesday, March 01, 2005

Ind. Decisions - Court of Appeals posts two today

James A. Altes v. State of Indiana (3/1/05 IndCtApp) [Criminal Law & Procedure]
Riley, Judge

* * * Altes raises four issues on appeal, which we consolidate and restate as the following two issues: Whether the State presented sufficient evidence to sustain Altes’ convictions for child molesting; and Whether the trial court properly sentenced Altes in light of Blakely v. Washington. * * *

Next, Altes 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, Altes 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. * * *

As its main argument, the State maintains that Blakely does not apply to Indiana’s sentencing scheme. In particular, the State alleges that Blakely does not require jury findings under Indiana’s 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 Blakely’s 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 new, established case law, we reject the State’s 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 based on a factor not admitted by the defendant, or submitted to the jury and proven beyond a reasonable doubt.

* * * Therefore, given the trial court’s assigned importance to the remaining aggravator and balanced against the two mitigators, 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 on Count I. Accordingly, we are not in a position to revise Altes’ sentence on appeal.

CONCLUSION. Based on the foregoing, we find that the State presented sufficient evidence to sustain Altes’ convictions for child molesting and that the trial court properly sentenced Altes. Affirmed.
CRONE, J., concurs.

ROBB, J., concurs in part and concurs in result in part with separate opinion. I concur in the majority’s resolution of the sufficiency issue, but respectfully concur only in result as to the sentencing issue.

The majority concludes that “Blakely prohibits our trial courts from imposing a sentence greater than the presumptive based on a factor not admitted by the defendant, or submitted to the jury and proven beyond a reasonable doubt.” SFor the reasons previously set forth in my concurring in result opinion in Abney v. State, No. 25A05-0407-CR-394 (Ind. Ct. App., Feb. 15, 2005), I disagree that Blakely so prohibits Indiana courts from exercising their sentencing discretion. I would not therefore find any of the aggravators improper because of Blakely and would affirm the sentence. If, however, the aggravators were found to be improper for reasons other than Blakely, I would agree with the majority’s conclusion that the multiple victim aggravator is alone sufficient to support Altes’ sentence. I therefore concur in the majority’s result affirming Altes’ sentence.

Donald Riehle v. State of Indiana (3/1/05 IndCtApp) [Criminal Law & Procedure]
Vaidik, Judge
Donald Riehle appeals his convictions for Child Molesting as a Class A felony, Child Molesting as a Class C felony, Conspiracy to Commit Child Molesting as a Class A felony, and Conspiracy to Commit Child Molesting as a Class C felony.

Because the evidence shows that Riehle performed deviate sexual conduct with the nine-year-old victim and that Riehle entered into an agreement with the child’s mother to do so, the evidence is sufficient to support his convictions for Child Molesting as a Class A felony and Conspiracy to Commit Child Molesting as a Class A felony.

Further, the trial court did not abuse its wide discretion in allowing the State to lead the victim during her direct examination given her young age and obvious reluctance to testify about the details of the crimes. In addition, the trial court did not commit fundamental error in admitting an entire tape recording of a conversation between Riehle and an informant into evidence given its relevance to the charged crimes.

Moreover, the continuing crime doctrine does not apply to the facts of this case, and therefore, the State properly charged and convicted Riehle.

Finally, we remand this case for resentencing in light of Blakely v. Washington. * * *

Riehle last contends that his sentence violates Blakely v. Washington, 124 S. Ct. 2531 (2004), reh’g denied. The State responds that Riehle has waived this issue for review by failing to object at the time of sentencing and that even if Riehle did not waive this issue, Blakely does not implicate Indiana’s sentencing scheme. We first observe that because Blakely was decided after Riehle was sentenced in this case, he has not waived this issue for review. See Williams v. State, 818 N.E.2d 970, 975 (Ind. Ct. App. 2004). In addition, we have previously determined that Blakely implicates our sentencing scheme. Strong v. State, 817 N.E.2d 256, 261 (Ind. Ct. App. 2004). * * *

Until our supreme court rules on the issue, however, the application of Apprendi, Blakely, and Booker to Indiana’s sentencing mechanism is still not entirely clear. Booker’s statement that “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 750 (emphasis added), could be read to exempt Indiana from the reach of these cases because Indiana’s law does give judges discretion to select a sentence within a range. Unlike the Federal Sentencing Guidelines invalidated by Booker, Indiana does not have mandatory guidelines.

But more relevant to Indiana, Booker makes clear that when an increase in a defendant’s punishment is contingent on the finding of a fact other than a prior conviction that is not reflected in the jury’s verdict or admitted by the defendant, that fact must be found by a jury beyond a reasonable doubt. Id. at 748-49. Under Indiana law, a sentence may not be enhanced beyond the presumptive unless the trial court finds as a fact the presence of a statutory aggravator. Ind. Code § 35-50-2-3 (murder sentence cannot be enhanced beyond presumptive without finding aggravator); § 35-50-2-4 (same for Class A felony); § 35-50-2-5 (same for Class B felony); § 35-50-2-6 (same for Class C felony); § 35-50-2-7 (same for class D felony). Indiana’s sentencing scheme therefore is not discretionary as Booker uses the term. 125 S. Ct. at 750. Because a trial court cannot impose a sentence longer than the presumptive without finding a fact in the form of an aggravator, Booker requires that the aggravator be found by a jury unless it is reflected in the jury’s verdict or admitted by the defendant. * * *

The trial court then ordered three of these sentences to run consecutively,[See footnote] for an aggregate sentence of 108 years. In doing so, the trial court identified five aggravators * * *.

We note that in light of Riehle’s absence of a criminal history, the aggravator that Riehle is in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility does appear to implicate Blakely. Cf. Teeters, 817 N.E.2d at 279 (opining that the “in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility” aggravator does not implicate Blakely when it can be said to be derivative of the defendant’s criminal history). Thus, whether this is a proper aggravator is a jury question. Likewise, pursuant to Blakely, the remaining four aggravators must have been submitted to a jury and proved beyond a reasonable doubt, which was not done here. This then leaves no aggravators and two mitigators. Accordingly, we must remand this case for resentencing.
Affirmed in part and reversed and remanded in part.
CRONE, J., concurs.

RILEY, J., concurs in part and dissents in part with separate opinion. I respectfully dissent from Part V, the majority’s conclusion to remand the case for resentencing in light of Blakely v. Washingon * * * Furthermore, we are convinced that the Supreme Court’s recent opinion in United States v. Booker * * * does not alter the Blakely rule as it now applies in Indiana. * * *

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. * * *

Unlike the majority, I find that based upon the evidence before this court, the jury properly found the existence of the aggravating factor that Riehle would commit another crime. * * * However, I concur with the majority that the remaining four aggravators are invalid in light of Blakely. 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. * * * 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. * * *

Here, I identified one valid aggravator: the risk of committing a future crime. * * * Therefore, I find that the trial court did not err by imposing an enhanced sentence. Accordingly, I disagree with the result reached by the majority.
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We would note for purposes of remand that Blakely is not implicated where a trial court orders consecutive sentences. Cowens v. State, 817 N.E.2d 255, 255 (Ind. Ct. App. 2004).

Posted by Marcia Oddi on March 1, 2005 02:19 PM
Posted to Indiana Decisions