Smylie v. State

Attorneys for Appellant Attorneys for Appellee

Robert W. Hammerle Steve Carter

Joseph M. Cleary Attorney General of Indiana

Indianapolis, Indiana

Grant H. Carlton

Attorneys for Amicus Curiae Ellen H. Meilaender

Ann M. Sutton Deputy Attorneys General

Kathleen M. Sweeney

Marion County Public Defender Agency Attorneys for Amicus Curiae

Kim Hall

Michael R. Limrick Stephen J. Johnson

Indianapolis, Indiana Indiana Prosecuting Attorneys Council

Joel M. Schumm

Indiana University School of Law - Indianapolis

In the

Indiana Supreme Court

_________________________________

No. 41S01-0409-CR-408

Adolphe E. Smylie,

Appellant (Defendant below),

v.

State of Indiana,

Appellee (Plaintiff below).

_________________________________

Appeal from the Johnson Superior Court, No. 41D01-0207-FC-15

The Honorable Kevin Barton, Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 41A01-0309-

CR-339

_________________________________

March 9, 2005

Shepard, Chief Justice.

Introduction

In this appeal and several similar cases, the defendants challenge the

constitutionality of their sentences under Blakely v. Washingtion, 124

S.Ct. 2531 (2004). The U.S. Supreme Court’s latest word on the

constitutionality of sentencing schemes is just eight weeks old. United

States v. Booker, 125 S.Ct. 738 (2005).

Attempting to take account of both Blakely and Booker, we hold today

that portions of Indiana’s sentencing scheme violate the Sixth Amendment’s

right to trial by jury, and that the new rule of Blakely should apply to

all cases pending on direct review at the time Blakely was announced in

which the appellant has adequately preserved appellate review of the

sentence.

Facts and Procedural History

On separate occasions from May 2001 through May 2002, Smylie molested

his step-daughter B.J., who was under the age of 14 at the time. The State

initially charged Smylie with two counts of child molesting, a class C

felony. Ind. Code Ann. § 35-42-4-3(b) (West 2004). It later amended the

charges to two counts of child solicitation, a class D felony. Smylie pled

guilty to the amended charges.

The Indiana Code provides that the penalty for a class D felony is a

“fixed term” of one and one-half years, with a maximum of one and one-half

years added for aggravating circumstances and up to a year subtracted for

mitigating circumstances. Ind. Code Ann. § 35-50-2-7 (West 2004). At the

sentencing hearing, the trial court judge found four aggravating

circumstances: 1) Smylie’s pattern of criminal activity, 2) his position of

trust with the victim, 3) the effect of the crime on the victim, and 4) the

imposition of a reduced or suspended sentence would depreciate the

seriousness of the crime. The court found two mitigating circumstances:

Smylie had no criminal history, and he was likely to respond to probation

or short-term imprisonment. It sentenced him to consecutive two-year terms

on each of the counts, with six months suspended, for a total of three and

one-half years.

I. Indiana’s Sentencing System Is Unconstitutional

A. Our “Fixed Terms” Are Much Like Washington’s Presumptive Ranges

On June 24, 2004, the U.S. Supreme Court issued its decision in

Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004). Writing for a 5-

4 majority, Justice Scalia declared that Blakely’s sentence, enhanced based

on various facts found by the sentencing judge, violated Blakely’s Sixth

Amendment right to a jury trial. Id. at __, 2538. This decision has cast

doubt over the constitutionality of sentencing schemes throughout the

country.

Blakely pled guilty to second-degree kidnapping involving domestic

violence and use of a firearm, a class B felony. Washington state law

capped punishment for a class B felony at 10 years. See Blakely, 542 U.S.

at __, 124 S.Ct. at 2535. According to Washington’s Sentencing Reform Act,

the standard sentencing range for Blakely’s crime was 49 to 53 months. Id.

The trial court judge imposed a sentence of 90 months -- 37 months over

the standard range -- pursuant to a Washington statute that allowed an

increased sentence if a judge found “substantial and compelling reasons

justifying an exceptional sentence.” Id. (quoting Wash. Rev. Code Ann. §

9.97A.120(2) (2000). The Washington trial judge had relied on “deliberate

cruelty”, an aggravating factor enumerated in the statutes. Id.

In analyzing the constitutionality of Washington’s sentencing scheme,

the Court began by reiterating the Sixth Amendment rule announced in

Apprendi v. New Jersey:[1] “[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.” Blakely, 542 U.S. at __, 124 S.Ct. at 2536. While many

who read Apprendi deduced that “statutory maximum” meant “statutory

maximum,” the Blakely majority chose to define it 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.” Id. at __, 2537. The statutory

maximum was thus not the 10-year cap on class B felonies, but rather the

standard sentencing range under the Washington Sentencing Reform Act. Id.

at __, 2538.

Blakely admitted to the facts of a crime carrying a sentence of 49-53

months, and if there were any additional facts used to increase the

sentence, the Court said, Blakely was entitled to have them found by a jury

beyond a reasonable doubt. Id. at __, 2537-38. Washington’s sentencing

procedure, to the extent it allowed a judge to increase the sentence above

the “statutory maximum” based on the judge’s findings, violated the Sixth

Amendment. Id. at __, 2538.

Whether this represents sound jurisprudence or policy is of no moment

for us under the Supremacy Clause, and we cannot see any grounds for

sustaining Indiana’s sentencing scheme given the Blakely holding. Indiana’s

sentencing scheme provides a “fixed term” presumptive sentence for each

class of felonies. See Ind. Code Ann. §§ 35-50-2-3 to 7 (West 2004).

These statutes also create upper and lower boundaries for each felony

sentence. Id. In deciding on whether to depart from the presumptive

sentence, the trial judge must consider seven enumerated factors and may

consider various other aggravating and mitigating factors. Ind. Code Ann.

§ 35-38-1-7.1 (West 2004).

From the time Indiana adopted its present sentencing arrangement in

1977, we have understood it as a regime that requires a given presumptive

term for each class of crimes, except when the judge finds aggravating or

mitigating circumstances deemed adequate to justify adding or subtracting

years. See, e.g., Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002);

Page v. State, 424 N.E.2d 1021, 1022-24 (Ind. 1981); Gardner v. State, 270

Ind. 627, 631-36, 388 N.E.2d 513, 516-19 (1979). This flows from the words

of the substantive sentencing provisions. The provision applicable to

Smylie’s crime mirrors those for other classes of felonies: “A person who

commits a Class D felony shall be imprisoned for a fixed term of one and

one-half (l ½ ) years, with not more than one and one-half (1 ½) years

added for aggravating circumstances or not more than one (1) year

subtracted for mitigating circumstances.” Ind. Code Ann. § 35-50-2-7(a)

(West 2004).

For Blakely purposes, Indiana’s “fixed term” is the functional

equivalent of Washington’s “standard sentencing range.” Both establish a

mandatory starting point for sentencing criminals based on the elements of

proof necessary to prove a particular offense and the sentencing class into

which the offense falls. The trial court judge then must engage in

judicial fact-finding during sentencing if a sentence greater than the

presumptive fixed term is to be imposed.[2] It is this type of judicial

fact-finding that concerned the Court in Blakely. “When a judge inflicts

punishment that the jury’s verdict alone does not allow, the jury has not

found all the facts ‘which the law makes essential to the punishment.’”

Blakely, 542 U.S. at __, 124 S.Ct. at 2537 (quoting 1 J. Bishop, Criminal

Procedure § 87 (2d ed. 1872)). While the Attorney General has ably

defended the statutes on other grounds we discuss below, we see little

daylight between the Blakely holding and the Indiana system.

B. Ours Is Not A Simple “Range” System

The Attorney General argues that Indiana’s sentencing statutes

establish a system of ranges for felony convictions, within which a judge

can work in fashioning a sentence. The State also asserts that the “fixed

term” presumptive sentence is merely a guidepost for judges operating

within the ranges. (Appellee’s Resp. Pet. Transfer at 6.) According to

the State, Indiana’s sentencing statutes do not violate Blakely because the

“statutory maximum” is the upper limit of the range, rather than the

presumptive sentence. (Id. at 6-7.)

We find ourselves unable to embrace this plausible contention for two

reasons. First, the Blakely majority rejected a nearly identical argument,

saying that “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.” Blakely, 542 U.S. at __, 124

S.Ct. at 2537. Indiana’s felony sentencing statutes provide “fixed terms”

and allow departures only if aggravating or mitigating factors are

found.[3] Ind. Code Ann. §§ 35-50-2-3 to 7 (West 2004). These factors are

assessed by the judge alone. Ind. Code Ann. § 35-38-1-7.1 (West 2004). If

the trial court adds or subtracts from the standard fixed term, the judge

must: 1) identify all significant aggravating and mitigating factors; 2)

specify the findings of fact and reasons which lead the court to find such

factors; and 3) articulate that the aggravating and mitigating factors were

evaluated and balanced in determination of the sentence. Trowbridge v.

State, 717 N.E.2d 138, 149 (Ind. 1999).

Second, the State’s argument runs contrary to the interpretation of

the Indiana statutory scheme as articulated and implemented by our trial

and appellate courts over parts of four decades. Because the judge has to

find additional facts to impose a sentence higher than the presumptive

sentence, the presumptive sentence is the “relevant statutory maximum.”

See Blakely, 542 U.S. at __, 124 S.Ct. at 2537.

The State also points to the Blakely Court’s disapproval of a

sentencing system that allows a judge to rely on a probation officer’s

report to increase a defendant’s maximum potential sentence dramatically

without warning the defendant either at the time of the indictment or the

plea. Blakely, 542 U.S. at __, 124 S.Ct. at 2542. (Appellee’s Br. Resp.

Br. of Amicus Curiae Marion County Public Defender Agency at 9-10.) It

contends that Indiana’s regime does not allow what Justice Scalia called an

“unexpected increase”[4] inasmuch as defendants are aware of the maximum

sentence that can be imposed for any given felony, namely, the range listed

in the sentencing statutes.

Fatal to this assertion is the fact that Washington’s system gave

similar notification. Washington’s statutes theoretically informed

defendants that a sentence may be increased to a statutory upper limit if

“substantial and compelling reasons justify an exceptional sentence.”

Wash. Rev. Code Ann. § 9.94A.120(2) (2000).[5] This upper limit in

Washington, ten years for a class B felony, still allowed a sentence to

“balloon” from the statutory maximum based on judicial fact-finding.[6]

The increase was “unexpected” in one important sense, namely that the

aggravators used to support a departure from the presumptive are not

charged in the indictment. See McCormick v. State, 233 Ind. 281, 119

N.E.2d 5 (1954) (charging information need only contain essential elements

of crime to notify defendant of what crime is charged). The Court was

apparently unconvinced that this notification problem is remedied by any

awareness by the defendant of the upper limit. See Blakely, 542 U.S. at

__, 124 S.Ct. at 2538-42.

C. What Is the Effect of this Blakely Violation?

The foregoing conclusion about the unconstitutionality of Indiana’s

present sentencing system hardly nullifies the entire arrangement. We have

historically rescued constitutional portions of statutes, if possible, when

other portions are held unconstitutional. See, e.g., State v. Barker, 809

N.E.2d 312 (Ind. 2004); State v. Kuebel, 241 Ind. 268, 172 N.E.2d 45

(1961). We have adopted the severability test enunciated in Dorchy v.

Kansas:

A statute bad in part is not necessarily void in its entirety.

Provisions within the legislative power may stand if separable

from the bad. But a provision, inherently unobjectionable,

cannot be deemed separable unless it appears both that, standing

alone, legal effect can be given to it and that the legislature

intended the provision to stand, in case others included in the

act and held bad should fall.[7]

It is apparent that Indiana’s sentencing system runs afoul of the

Sixth Amendment not because it mandates a “fixed term” sentence for each

felony, but because it mandates both a fixed term and permits judicial

discretion in finding aggravating or mitigating circumstances to deviate

from the fixed term. A constitutional scheme akin to ours could take one

of two forms: (1) our present arrangement of fixed presumptive terms,

modified to require jury findings on facts in aggravation, or (2) a system

in which there is no stated “fixed term” (or at least none that has legally

binding effect) in which judges would impose sentences without a jury.

The U.S. Supreme Court, in its most recent installment in this Sixth

Amendment saga, applied Blakely to the Federal Sentencing Guidelines.

United States v. Booker, 543 U.S. __, 125 S.Ct. 738, 746 (2005). The

Court’s solution was to sever and excise a portion of the sentencing

statute that made the sentence indicated by the Guidelines range mandatory

unless the trial court found aggravating or mitigating circumstances not

adequately considered by the U.S. Sentencing Commission. This excising

produced an arrangement like the second option described above. Blakely

had explicitly sanctioned such regimes. Blakely, 542 U.S. at __, 124 S.Ct.

at 2540 (indeterminate sentencing by judges and parole boards not a

violation of Sixth Amendment).

Our conclusion about severability leads to an outcome more like the

first choice mentioned above. In excising only the minimal portions of the

existing statute necessary to comply with Blakely, we are much influenced

by the fact that the overarching theme of Indiana’s 1977 sentencing reform

was a legislative decision to abandon indeterminate sentencing in favor of

fixed and predictable penalties. The 1977 act assigned to judges the task

of imposing penalties stated as a fixed term of years and created a

structure for setting those penalties that is far more definitive than the

scheme it replaced.

We conclude that the first option listed above is probably more

faithful to the large objectives of the General Assembly’s 1977 decisions.

We thus hold that the sort of facts envisioned by Blakely as necessitating

a jury finding must be found by a jury under Indiana’s existing sentencing

laws.

D. Blakely Does Not Invalidate Indiana’s Arrangement for Consecutive Terms

Having concluded that Indiana’s system for enhanced sentences

contravenes Blakely, we turn to a closely related issue posed by Smylie.

When sentencing a defendant on multiple counts, an Indiana trial

judge may impose a consecutive sentence if he or she finds at least one

aggravator.[8] Ortiz v. State, 766 N.E.2d 370 (Ind. 2002); Morgan v.

State, 675 N.E.2d 1067 (Ind. 1996). A defendant does have the right to the

exercise of a trial court’s discretion.[9] Certainly, where a judge finds

that aggravating and mitigating circumstances are in equipoise, we have

required concurrent sentences, Marcum v. State, 725 N.E.2d 852, 863-64

(Ind. 2000), just as we have where the court has not found any aggravating

circumstances at all. Hansford v. State, 490 N.E.2d 1083, 1094 (Ind.

1986). But our statutes do not erect any target or presumption concerning

concurrent or consecutive sentences. Where the criminal law leaves

sentencing to the unguided discretion of the judge there is no “judicial

impingement upon the traditional role of the jury.” Blakely, 542 U.S. at

__, 124 S.Ct. at 2540.

We find no language in Blakely or in Indiana’s sentencing statutes

that requires or even favors concurrent sentencing. See generally,

Blakely, 542 U.S. __, 124 S.Ct. 2531 (2004); Ind. Code Ann. § 35-50-1-2

(West 2004). The trial court’s sentencing of Smylie to consecutive terms

after finding an aggravating circumstance did not increase the sentence

above the statutory maximum for each offense. See State v. Abdullah, 858

A.2d 19, 39 (N.J. Sup. Ct. App. Div. 2004) certification granted (“Although

the imposition of consecutive terms . . . increase[s a] defendant’s

punishment, [it does] not increase the penalty above what the law provides

for the offense charged.”). [10] There is no constitutional problem with

consecutive sentencing so long as the trial court does not exceed the

combined statutory maximums.

E. Smylie’s Sentence

The trial court sentenced Smylie to two years for each count of class

D felony child solicitation, six months above the standard fixed term. The

aggravating factors used to enhance the sentence were not submitted to the

jury or admitted by Smylie. The enhancement cannot be imposed without jury

findings. We reverse and remand for a new sentencing on these counts,

should the State elect, with the intervention of a jury. The trial court’s

order of consecutive sentences is not defective, and we affirm it.

II. Why is Smylie Entitled to Raise Blakely Issues on Appeal?

The State claims that Smylie has forfeited his right to pursue this

issue. Smylie did not request that the trial court submit aggravating

circumstances to a jury, nor did he raise a Blakely claim in his appellate

brief, filed in January 2004. Under regular appellate practice, this would

forfeit the claim.

A. Blakely Establishes a “New Rule”

It is firmly established that, “a new rule for the conduct of

criminal prosecutions is to be applied retroactively to all cases, state or

federal, pending on direct review or not yet final, with no exception for

cases in which the new rule constitutes a ‘clear break’ with the past.”

Griffith v. Kentucky, 479 U.S. 314, 328 (1987). A rule is new for the

purposes of retroactivity “if the result was not dictated by precedent

existing at the time the defendant’s conviction became final.” Teague v.

Lane, 489 U.S. 288, 301 (1989). Blakely was decided while Smylie’s case

was still pending on direct appeal, and thus, the initial question is

whether the result in Blakely was dictated by existing precedent.

The State apparently concedes that Blakely constitutes a new rule for

the purposes of retroactivity.[11] Correctly so. While Blakely certainly

states that it is merely an application of “the rule we expressed in

Apprendi v. New Jersey,” 124 S.Ct. at 2536, it is clear that Blakely went

beyond Apprendi by defining the term “statutory maximum.” As the Seventh

Circuit recently said, it “alters courts’ understanding of ‘statutory

maximum’” and therefore runs contrary to the decisions of “every federal

court of appeals [that had previously] held that Apprendi did not apply to

guideline calculations made within the statutory maximum.” Simspon v.

United States, 376 F.3d 679, 681 (7th Cir. 2004)(collecting cases).

Because Blakely radically reshaped our understanding of a critical element

of criminal procedure, and ran contrary to established precedent, we

conclude that it represents a new rule of criminal procedure.[12]

B. Blakely Applies Retroactively to Cases on Direct Review

Of course, as the State points out, the application of Blakely to any

case pending on direct review remains subject to the standard rules

governing appellant procedure such as waiver and forfeiture.[13]

To receive the benefit of a new rule of law, a claimant must preserve

the issue for appeal. In Pirnat v. State, 607 N.E.2d 973 (Ind. 1993), for

example, we considered the retroactive applicability of our decision about

the admissibility of “depraved sexual instinct” evidence to cases pending

on appeal at the time Lannan v. State, 600 N.E.2d 1334 (Ind. 1992) was

decided. We declared that “Pirnat and others whose cases properly

preserved the issue and whose cases were pending on direct appeal at the

time Lannan was decided receive the benefit of review under the new rule.”

Pirnat, 607 N.E.2d at 974 (emphasis added).[14] Pirnat had previously

challenged the admission of the “depraved sexual instinct” evidence at

trial and on appeal. Pirnat v. State, 596 N.E.2d 259 (Ind. Ct. App. 1992).

We reached the same conclusion in Coleman v. State, 558 N.E.2d 1059

(Ind. 1990), when we considered the retroactive applicability of the

constitutional rule announced in Booth v. Maryland, 482 U.S. 496 (1987) and

South Carolina v. Gathers, 490 U.S. 805 (1989) to cases pending on direct

appeal at the time those rules were announced.[15] Although we concluded

that Booth and Gathers applied retroactively to cases pending on direct

appeal, we made clear that we considered the rule to “apply to the direct

appeal of a trial occurring before those cases were decided so long as the

appellant has preserved [the issue for appeal] by objecting at trial.”

Coleman, 558 N.E.2d at 1061 (emphasis added). We have utilized this same

approach in other cases. See, e.g., Ried v. State, 615 N.E.2d 893 (Ind.

1993); Daniels v. State, 561 N.E.2d 487 (Ind. 1990).

On this principle of appellate law, Indiana jurisprudence is rather

ordinary. In United States v. Cotton, 535 U.S. 625 (2002), for example,

the Supreme Court applied the plain error test to a case pending on appeal

when the new rule in Apprendi was announced. In so doing, the Court noted

that Cotton’s claim was “forfeited” because of his failure to object to

alleged error at trial. Id. at 629, 631. Similarly, in Johnson v. United

States, 520 U.S. 461 (1997), the Court considered the retroactive

application of the rule announced in United States v. Gaudin, 515 U.S. 506

(1995), to a case pending on appeal at the time of that decision. In

considering Johnson’s claim, the Court noted that “[b]ecause petitioner is

still on direct review, Griffith requires that we apply Gaudin

retroactively.” Johnson, 520 U.S. at 467. The Court, however, still

applied plain error review because of Johnson’s failure to object at trial

and preserve the error for appeal. Id. Unsurprisingly, a number of

federal circuit cases reflect the same practice.[16]

Given this backdrop of precedent we believe that our approach

regulating the retroactive application of a new rule to cases pending on

direct appeal through the application of the rules governing appellate

procedure is entirely consistent with the dictates of Griffith. As such,

we agree with the State that it is entirely possible for defendants to have

waived or forfeited their ability to appeal their sentence on Blakely

grounds.

C. What is Enough to Preserve a Blakely Challenge?

The State urges us to declare Smylie’s claim forfeited because he

failed to “lodge an objection at his sentencing hearing that his right to

trial by jury was denied when the trial court found aggravating

circumstances and imposed an enhanced sentence either generally or

specifically based on Apprendi.” (Resp. Pet. Transfer at 4.) The State

further stresses that Blakely based his “‘exceptional’ sentence” claim on

Apprendi “just as Smylie should have if he found his sentence

objectionable.” (Resp. Pet. Transfer at 4-5.)

The State rightly points out that a claim is generally considered

forfeited if it is not objected to at trial, see Bruno v. State, 774 N.E.2d

880 (Ind. 2002), and it is certainly correct that Smylie could have

objected on Apprendi or Sixth Amendment grounds at the time the trial court

convened for the sentencing hearing. Because Blakely represents a new rule

that was sufficiently novel that it would not have been generally

predicted, much less envisioned to invalidate part of Indiana’s sentencing

structure, requiring a defendant or counsel to have prognosticated the

outcome of Blakely or of today’s decision would be unjust.

This is the same approach taken by the Seventh Circuit in several

recent decisions. In United States v. Pree, 384 F.3d 378 (7th Cir. 2004),

the court noted that Pree did not “address to this court, nor can we find

evidence in the record to indicate, that she addressed before the district

court the constitutionality of her sentencing enhancement.” Id. at 396.

Despite this failure to raise an objection to her sentence at either the

trial court or before the court of appeals, the Seventh Circuit

nevertheless stated that “[g]iven the precedent in this circuit prior to

Blakely, we think it would be unfair to characterize Ms. Pree as having

waived a challenge to the validity of her sentencing enhancement.” Id.

Likewise, the panel in United States v. Henningsen, 387 F.3d 585 (7th

Cir. 2004), concluded that the failure to object to a sentence on

constitutional grounds did not constitute forfeiture of the Blakely issue

for appeal.[17] The court noted that “Henningsen’s challenge during

sentencing and in his brief on appeal did not extend to the

constitutionality of the enhancements.” Id. at 591. However, while such

failure to object would ordinarily constitute forfeiture, the court took

note of the fact that Henningsen:

made notice of the Blakely . . . [decision] in a subsequent

filing and raised the issue during argument. In light of the

uncertainity surrounding this issue and the questionable

constitutionality of Henningsen’s sentencing enhancement, we do

not find that Hennignsen has waived his right to challenge the

validity of the district court’s sentencing enhancement.[18]

We conclude that it is appropriate to be rather liberal in

approaching whether an appellant and her lawyer have adequately preserved

and raised a Blakely issue. A very tough Blakely preservation rule would

prompt practitioners to fill trial time and appellate briefs with all

imaginable contentions, contrary to the general advice that it is good

practice to focus on the most viable issues. It would also drastically

alter the burden imposed on counsel as to what constitutes effective

assistance to their clients. As we said in Fulmer v. State, 523 N.E.2d 754

(Ind. 1988), “An attorney is not required to anticipate changes in the law

and object accordingly” in order to be considered effective. Id. at 757-

58. As we suggested above, a trial lawyer or an appellate lawyer would not

be ineffective for proceeding without adding a Blakely claim before Blakely

was decided. Consequently, we do not deem the failure to raise a Sixth

Amendment objection to the trial court as it proceeded through sentencing

to constitute forfeiture of a Blakely issue for purposes of appellate

review.

Nevertheless, it does not ask too much that a criminal defendant have

contested his or her sentence on appeal, even if the Blakely element of

that contest is added later, as it has been by Smylie. Thus, we regard

defendants such as Smylie who sought sentence relief from the Court of

Appeals based on arbitrariness or unreasonableness (Appellant’s Br. at 3),

and who added a Blakely claim by amendment or on petition to transfer as

having adequately presented the issue of the constitutionality of their

sentence under Blakely.

Defendants who have appealed without raising any complaint at all

about the propriety of their sentence have arguably made the sort of

knowing and intelligent decision regarding their appeal that is required

for waiver to exist. Thus, those defendants who have not raised objections

to their sentences should be deemed to have at least forfeited, and likely

waived, the issue for review.

D. Summary

First, as a new rule of constitutional procedure, we will apply

Blakely retroactively to all cases on direct review at the time Blakely was

announced. Second, a defendant need not have objected at trial in order to

raise a Blakely claim on appeal inasmuch as not raising a Blakely claim

before its issuance would fall within the range of effective lawyering.

Third, those defendants who did not appeal their sentence at all will have

forfeited any Blakely claim.

III. Disposition

We reverse that part of Smylie’s sentence that enhances the standard

penalty and remand for a new sentencing hearing in which the State may

elect to prove adequate aggravating circumstances before a jury or accept

the statutory fixed term. We affirm the order for consecutive sentences.

Sullivan, Boehm, and Rucker, JJ., concur.

Dickson, J., dissents with separate opinion.

Dickson, Justice, dissenting.

Because of recent decisions of the United States Supreme Court, the

majority chooses to preserve the constitutionality of Indiana's criminal

sentencing system by judicially severing statutory provisions that direct

trial judges to consider aggravating and mitigating circumstances to

determine sentences, and by engrafting a new procedure requiring that

aggravating circumstances be submitted for jury determination. I prefer a

less onerous construction that leaves intact the language of the statute

and modifies only judicial precedent interpreting the statute.

Statutes must be accorded every reasonable presumption to support

their validity, and if possible, we must adopt a reasonable construction

that support their constitutionality. Burris v. State, 642 N.E.2d 961, 968

(Ind. 1994); Brady v. State, 575 N.E.2d 981, 985 (Ind. 1991); Miller v.

State, 517 N.E.2d 64, 71 (1987). In assessing the constitutionality of a

statute, "we might well modify our view of the statute's demands if doing

so would preserve its constitutionality." A Woman's Choice-East Side v.

Newman, 671 N.E.2d 104, 110 (Ind. 1996).

The majority correctly acknowledges that one possible option for

Indiana's sentencing system to satisfy the United States Supreme Court

requirements would be "a system in which there is no stated 'fixed term'

(or at least none that has legally binding effect) in which judges would

impose sentences without a jury." Slip opin. at 8. In fact, this is the

approach recently implemented by the Supreme Court in applying its

requirements to federal criminal sentencing. United States v. Booker, 543

U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

This system is not inconsistent with the express language of Indiana

Code § 35-38-1-7.1, which states in relevant part that "[i]n determining

what sentence to impose for a crime, the court shall consider," id.

(emphasis added), and then lists various possible aggravating and

mitigating factors, in addition to which the statute declares that such

factors "do not limit the matters that the court may consider in

determining the sentence." Ind. Code § 35-38-1-7.1(d) (emphasis added).

If the court finds aggravating or mitigating circumstances, it must at

sentencing make a record of its "reasons for selecting the sentence that it

imposes." Ind. Code § 35-38-1-3.

The rule that has developed in Indiana criminal sentencing is that

enhanced sentences may only be imposed upon the judge's express

determination of one or more aggravating factors. But this rule is not

required by statutory language, which compels only general consideration of

aggravating and mitigating circumstances, and does not compel trial courts

to find any particular aggravator as a prerequisite to imposing an enhanced

sentence. Our current rule reflects an obligation that was gradually

superimposed upon the statute by a series of judicial decisions. See,

e.g., Taylor v. State, 181 Ind.App. 227, 230, 391 N.E.2d 662, 664 (1979)

(affirming sentence because trial court did not treat sentencing guidelines

as binding but rather as only a tool); Gardner v. State, 279 Ind. 627, 633,

388 N.E.2d 513, 517 (1979) (when increased sentences are imposed, trial

court should disclose the factors considered, to facilitate appellate

review for sentence reasonableness); Abercrombie v. State, 275 Ind. 407,

412, 417 N.E.2d 316, 319 (1981) (court's record of sentencing reasons

serves two purposes: to confine the judge to proper grounds and to permit

appellate court to determine reasonableness of sentence); Dumbsky v. State,

508 N.E.2d 1274, 1278 (Ind. 1987) (requiring sentencing court to

specifically identify aggravating circumstances serves dual purposes of

providing an adequate basis for appellate review and guarding against

arbitrary and capricious sentencing); Bustamante v. State, 557 N.E.2d 1313,

1321 (Ind. 1990) (when judges impose enhanced sentences, they must make

specific findings of aggravating circumstances); Henderson v. State, 769

N.E.2d 172, 179 (Ind. 2002) (where trial court enhances presumptive

sentence, it must identify and explain aggravating circumstance). To be

sure, our current judicial construction mandating an affirmative finding of

one or more aggravating factors as a prerequisite to imposing an enhanced

sentence is now long-settled and serves well the sound policy of favoring

fair, consistent, and predictable penalties. As this Court holds today,

however, this system runs afoul of the federal constitutional prohibition

against sentences that require a judge to find some additional fact not

found by a jury. Booker, 543 U.S. at ___, 125 S.Ct. at 749, 160 L.Ed.2d at

643; Blakely v. Washington, 542 U.S. ___, ___, 124 S.Ct. 2531, 2538, 159

L.Ed.2d 403, 415 (2004).

To comply with this requirement, we should judicially modify not the

statutory language but our own precedents. The result would be that

Indiana trial judges would continue to determine sentences in accordance

with statute, with discretion to the fix the sentence within specific

ranges already designated by the legislature for various categories of

criminal offenses. As required by the statute, they must consider

aggravating and mitigating circumstances, but their authority to impose a

particular enhanced sentence would not be limited so as to require them to

expressly find any particular aggravating circumstances.

Our Criminal Code provides that for each class of felony or

misdemeanor, a person convicted "shall be imprisoned for a fixed term of"

and specifies a specific number followed by a limited range of years that

may be added or subtracted for aggravating or mitigating circumstances.

See Ind. Code §§ 35-50-2-4 through -7, 35-50-3-2 through -4. We refer to

this fixed number as the "presumptive" sentence for each class of offense.

The presumptive sentences identified by statute would serve as non-binding

recommendations, with our trial courts nevertheless empowered to exercise

their sound discretion to fix the sentence at any point within the

designated range, upon consideration of the aggravating and mitigating

factors as found by the judge.

Not only would this method of compliance with federal constitutional

requirements avoid the necessity of judicially altering statutory language,

it would also avoid adding a new layer of jury sentencing hearings in

criminal cases and the attendant additional expense and delay. Adoption of

such an approach would not be unusual. Notwithstanding today's decision of

this Court, the legislature may still choose to modify Indiana's sentencing

statues to implement this system.

Independent of the above discussion, it should be noted that, under

the new methodology created by the Court's opinion today, defendants who

challenge their prior judge-determined sentence claiming entitlement to a

jury determination of aggravating circumstances may ultimately receive a

greater sentence. The trial court here sentenced Smylie to three and one-

half years, after suspending six months. This is less than the maximum

possible aggregate sentence of six years that the defendant was facing.

Today's decision operates to vacate this sentence and to remand the case

for a new sentencing hearing. If a jury then determines aggravating

factors significantly different from those previously found by the trial

judge, there is no reason that the defendant could not end up receiving the

maximum sentence, which would be two and one-half years more than that

originally imposed by the trial judge.

-----------------------

[1] 530 U.S. 466, 490 (2000).

[2] Although Indiana’s fixed term is a definitive amount of time and

Washington’s presumptive sentence is a range, this difference is merely in

form.

[3] Ind. Code Ann. §§ 35-50-2-3 to 7 (West 2004) provide that years can be

“added for aggravating circumstances,” which implies that aggravators are

the only relevant inquiry in increasing a sentence. In fact, the absence

of an aggravator requires a presumptive sentence. Henderson v. State, 769

N.E.2d 172, 180 (Ind. 2002).

[4] Blakely, 542 U.S. at __, 124 S.Ct. at 2535.

[5] Citations are to the Washington Code as it existed at the time of

Blakely’s sentencing.

[6] Wash. Rev. Code Ann. § 9A.20.021 (2000).

[7] 264 U.S. 286, 289-90 (1924)(internal citations omitted).

[8] Ind. Code Ann. § 35-50-1-2(c) (West 2004) provides that aggravating and

mitigating circumstances may be a consideration in imposing concurrent or

consecutive sentences. Indiana’s caselaw has developed to make an

aggravating circumstance a requirement before a consecutive sentence may be

imposed. See Shippen v. State, 477 N.E.2d 903, 905 (Ind. 1985); Mott v.

State, 273 Ind. 216, 220, 402 N.E.2d 986, 988 (1980).

[9] Ind. Code Ann. § 35-50-1-2(c) (West 2004).

[10] The Court of Appeals upheld only one of the four aggravators found by

the trial court, Smylie v. State, 807 N.E.2d 809, 41A01-0309-CR-339, slip

op. at 5 (Ind. Ct. App. April 13, 2004) (mem.) trans. granted, but just one

may be enough. Ortiz v. State, 766 N.E.2d 370, 377 (Ind. 2002); Morgan v.

State, 675 N.E.2d 1067, 1073 (Ind. 1996).

[11] “The State recognizes that Blakely can be read to establish a ‘new

rule’.” (Resp. Pet. Transfer at 5.)

[12] We also note that Blakely has created such controversy that the so-

called owner of the “Blakely Blog,” Professor Douglas A. Berman, of Moritz

College of Law at The Ohio State University, has stopped tracking state

cases related to Blakely because of the overwhelming number and diversity

of the holdings. Douglas A. Berman, In re State Blakely Interpretations,

(Dec. 9, 2004) at http://sentencing.typepad.com. That so many states are

wrestling with the meaning of Blakely is further evidence of its

unpredictability and a further indication that reasonable lawyers would not

have known of the outcome.

The brief of amicus curiae, the Indiana Prosecuting Attorneys Council,

prepared by Stephen J. Johnson, has been especially helpful in providing

meaningful electronic resources. Mr. Johnson should be commended for

utilizing a unique and useful legal resource in the service of his

organization.

[13] These terms are often used somewhat interchangeably, but they deal

with distinct categories of non-appealable issues. Waiver indicates an

“intentional relinquishment or abandonment of a known right.” United States

v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.

458, 464 (1938)). In contrast, forfeiture occurs when a party fails “to

make the timely assertion of a right.” Olano, 507 U.S. at 733. Furthermore,

while waiver generally precludes appellate review of an issue, in federal

practice forfeiture permits appellate review, but limits such review to

“plain error.” Id.; United States v. Levy, 391 F.3d 1327, 1341-43 (11th

Cir. 2004)(Tjoflat, J., dissenting).

[14] Cf. Pirnat v. State 600 N.E.2d 1342 (Ind. 1992).

[15] Although the rule announced in Booth and Gathers was eventually

overruled by Payne v. Tennessee, 501 U.S. 808 (1991), this does not impact

our retroactivity analysis.

[16] See,e.g., United States v. Rogers, 118 F.3d 466, 470-71 (6th Cir.

1997)(with respect to forfeited claim when intervening case establishes a

new rule, “[w]e must apply the plain error doctrine to analyze the failure

to submit the question of materiality to the jury.”); United States v.

Levy, 391 F.3d 1327, 1331 (11th Cir. 2004)(“Griffith cannot, and does not,

control a situation in which the defendant . . . never raised nor preserved

a constitutional challenge, but, instead, raises it for the first time in a

petition for rehearing.”). Like the federal “plain error” doctrine, our

“fundamental error” rule sometimes affords relief to claimants who did not

preserve an issue before the trial court and seek to raise it for the first

time on appeal. Under our holding today, Blakely claimants who have

appealed their sentences will be allowed to add a tardy Blakely claim and

thus have no need to claim, “fundamental error.” The fundamental error

doctrine will not, as caselaw holds, be available to attempt retroactive

application of Blakely through post-conviction relief. See Sanders v.

State, 765 N.E.2d 591, 592 (Ind. 2002); Canaan v. State, 683 N.E.2d 227,

235 n.6 (Ind. 1997).

[17] Although we are aware that the Seventh Circuit used the term “waiver”

in both Pree and Hennignsen, taken in context, and given the earlier

discussion distinguishing forfeiture and waiver, we understand the court of

appeals to have meant to include forfeiture in its use of the term waiver

except insofar as we distinguish Pree.

[18] Henningsen, 387 F.3d at 591.