holding that the position of trust aggravator applies when the defendant “has a more than casual relationship with the victim and has abused the trust resulting from that relationship” and that “generally, Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018 Page 11 of 15 cohabitation arrangements of nearly any character between adults do in fact, and should, establish a position of trust between adults and minors living or staying together”
How later courts described this case
- holding that the position of trust aggravator applies when the defendant “has a more than casual relationship with the victim and has abused the trust resulting from that relationship” and that “generally, Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1280 | January 23, 2018 Page 11 of 15 cohabitation arrangements of nearly any character between adults do in fact, and should, establish a position of trust between adults and minors living or staying together”
- holding that the defendant was in a position of trust with child-victim where defendant co-habited with victim’s mother and victim spent significant amount of time visiting defendant’s home
- stating that it is an aggravator for sentencing purposes when an adult abuses his position of trust over a 6 minor
- Defendant’s aggregate eight-year sentence was not inappropriate in light of the nature of the offense and the character of the offender; defendant touched nine-year- old child’s genitals on several occasions over the course of a few months, and in doing so, he violated the position of trust he held with child, who stayed with her mother at 9 defendant’s home when mother had visitation
Written by the judges who cited it.
The opinion
MAY, Judge,
dissenting.
“[T]hat which cannot be used to enhance a sentence cannot be used to ‘balance’ circumstances that may properly serve to reduce the sentence as mitigators.” Laughner v. State, 769 N.E.2d 1147, 1162 (Ind.Ct.App.2002), reh’g denied, trans. denied 788 N.E.2d 701 (Ind.2002), cert. denied 538 U.S. 1013 , 123 S.Ct. 1929 , 155 L.Ed.2d 849 (2003), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind.2007). The trial court imposed the presumptive sentence but it did so only after finding and using the “position of trust” aggravator to balance the mitigating circumstances it found. I therefore cannot agree with the majority that Blakely can be disregarded and must respectfully dissent.
In Blakely, the Supreme Court held the Sixth Amendment requires a jury to determine beyond a reasonable doubt the existence of aggravating factors used to increase a sentence above the presumptive sentence assigned by the legislature. 542 U.S. at 301, 124 S.Ct. 2531 . In Smylie, our Indiana Supreme Court held Blakely applies to Indiana’s sentencing scheme, and thus requires “the sort of facts envisioned by Blakely as necessitating a jury finding must be found by a jury under Indiana’s existing sentencing laws.” 823 N.E.2d at 686. In 2005, the legislature amended Indiana’s sentencing statutes in light of Blakely and Smylie.
Rodriguez committed his offenses in December 2003 and January 2004. Therefore, we must consider his sentence under the prior sentencing scheme. See Weaver v. State, 845 N.E.2d 1066, 1072 (Ind.Ct. App.2006) (amendments to sentencing scheme may not be applied retroactively), trans. denied 855 N.E.2d 1011 (Ind.2006). An aggravating circumstance is proper under Blakely when it is: 1) a fact of prior conviction; 2) found by a jury beyond a reasonable doubt; 3) admitted or stipulated by a defendant; or 4) found by a judge after the defendant consents to judicial fact-finding. Trusley v. State, 829 N.E.2d 923, 925 (Ind.2005).
In sentencing Rodriguez, the trial court found C.S. was “very clearly in a position of trust and the defendant’s violation of that trust was an aggravating factor, no question that that’s an aggravating factor.” (Tr. at 149.) The trial court also found three mitigators: his lack of criminal history, his honorable discharge from the armed services, and his stable employment history. The court determined the aggra-vator and mitigators balanced, and sentenced Rodriguez to presumptive four-year terms on each count.
Because Rodriguez did not consent to judicial fact-finding for sentencing purposes, 2 the position of trust aggravator *557 needed to be supported by his admissions. It was not.
Rodriguez testified C.S.’s mother lived with his family for about three months. C.S. stayed with her mother in Rodriguez’s house when she visited. Some of the visits were overnight. Until C.S.’s mother bought her own ear, Rodriguez drove C.S.’s mother to and from C.S.’s father’s house to pick up C.S. and her sister for the visits. Rodriguez stated he played with C.S. while other people were present. Based solely on these admissions, I am unable to say Rodriguez was in a position of trust. This aggravator was improper under Blakely, and I would remand for resentencing.
. The record indicates Rodriguez waived his right to a jury trial on September 22, 2005; the record does not indicate he specifically consented to judicial fact-finding for sentenc *557 ing purposes as well. See Averitte v. State, 824 N.E.2d 1283, 1287-88 (Ind.Ct.App.2005) (waiver of jury trial did not include waiver of Blakely sentencing rights absent specific advisement of those rights).