# Banks v. State

> Indiana Court of Appeals · February 6, 2006 · 841 N.E.2d 654

URL: https://www.frixlaw.com/law-library/cases/9723586

## Case

- **Full name:** Carl L. BANKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
- **Court:** Indiana Court of Appeals
- **Decided:** February 6, 2006
- **Citations:** 841 N.E.2d 654; 2006 Ind. App. LEXIS 160; 2006 WL 267170
- **Precedential status:** Published
- **Opinion:** Concurrence by May
- **Judges:** Crone, Friedlander
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9723586

## How later opinions describe it (automated extraction)

- finding the trial court’s failure to consider the defendant’s guilty plea as mitigating was harmless
- finding no abuse of discretion where trial court did not consider nonviolent crime as mitigator

## Opinion text

MAY, Judge,
concurring in result.
Banks was charged with a Class C felony on October 8, 2004, and pleaded guilty on February 23, 2005. On April 25, 2005, our legislature responded to Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004), reh'g denied 542 U.S. 961 , 125 S.Ct. 21 , 159 L.Ed.2d 851 (2004), by amending our sentencing statutes to replace presumptive sentences with "advisory" sentences. Banks was sentenced after the effective date of the amendment, on May 10, 2005. The majority assumes, as do Banks and the State, that the new version of Ind.Code § 35-50-2-6, providing for an advisory sentence, applies in this case. I do not believe this statute can be applied retroactively, but I believe Banks' sentence is proper under either sentencing scheme. I *661 accordingly concur in the result. Under our post-Blakely statutory scheme premised on "advisory" rather than "presumptive" sentences, a court may impose any sentence that is authorized by statute and permissible under the state Constitution "regardless of the presence or absence of aggravating ctreumstances or mitigating stances." Ind.Code § 85-88-1-7.1(d) (emphasis supplied). For purposes of felony sentencing, an "advisory sentence" is "a guideline sentence that the court may voluntarily consider as the midpoint between the maximum sentence and the minimum sentence." Ind.Code § 35-50-2-1.3. A court is required to use an advisory sentence in imposing consecutive sentences in accordance with Ind.Code § 35-50-1-2 (addressing crimes of violence) and in imposing an additional fixed term on an habitual offender or a repeat sexual offender. However, the court is not required to use the advisory sentence in imposing the sentence for the underlying offense. Id.
A substantive change in a penal statute is an ex post facto law if applied retroactively, but a procedural change is not. Dobbert v. Florida, 432 U.S. 282, 298 , 97 S.Ct. 2290 , 58 LEd.2d 344 (1977). In Samaniego-Hernandez vw. State, 889 N.E.2d 798 (2005), a panel of this court noted the amendments to the sentencing statute were made effective prior to the date of Samaniego-Hernandez's sentencing hearing. It then stated, without elaboration, "However, this change is procedural rather than substantive ... [tlherefore, we analyze this issue under the amended statute that provides for advisory rather than presumptive sentences." 889 N.E.2d at 805 . Having determined the amended statute could be applied to crimes committed before the effective date of the statute, the panel found no abuse of discretion in a thirty-five year sentence for a Class A felony.
The Samoniego-Hernandez panel relied on, but did not discuss or explain the application of, a statement from Ritchie v. State, 809 N.E.2d 258, 264 (Ind.2004) that an amendment is "procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date," if it "neither changes the elements of the erime nor enlarges its punishment." Ritchie killed a police officer on September 29, 2000. He was con-viected on August 10, 2002 and sentenced on October 15, 2002. An amendment to the death penalty statute became effective on July 1, 2002.
Under the prior death penalty statute, the jury's weighing of aggravating factors and mitigating factors and the ensuing recommendation was not binding on the trial judge. Under the revised statute, the judge, after receiving the jury's recommendation as to the death penalty, was to sentence "accordingly." 1 Ritchie argued *662 the 2002 amendment to the Death Penalty Statute was an ex post facto law because it effected a substantive change from the previous statute. Our Indiana Supreme Court disagreed, holding "the Indiana amendment neither changes the elements of the crime nor enlarges its punishment. It simply mandates that onee the jury makes a recommendation, pursuant to its findings, the judge is to sentence 'accordingly." 809 N.E.2d at 264 .
The statute in Dobbert similarly "altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime." Brice v. State, 815 A.2d 314, 321 (Del.2003). A statute that enlarged the class of people who were competent to testify in criminal cases was not an ex post facto law because it did not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt. Hopt v. Utah, 110 U.S. 574 , 4 S.Ct. 202 , 28 L.Ed. 262 (1884).
In Collins v. Youngblood, 497 U.S. 37 , 110 S.Ct. 2715 , 111 L.Ed.2d 30 (1990), a statute that allowed an appellate court to reform a verdict that assessed a punishment unauthorized by law was held not to be an ex post facto law because it did not "(1) punish as a crime an act previously committed which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; nor (3) deprive one charged with a crime of any defense available according to the law at the time the act was committed." The Ritchie court found "the amendments to the Indiana Death Penalty Statute did none of these and is not invalid ex post facto legislation." 809 N.E.2d at 264 .
The Arizona Supreme Court recently addressed the retroactive effect of a statutory change similar to the amendment to the Indiana sentencing statutes, and determined the change was not "simply procedural." State v. Fell, 210 Ariz. 554 , 115 P.3d 594, 600 (2005). It noted initially that a statute may be applied retroactively even absent express language to that effect, if the enactment is "procedural only" and does not alter or affect earlier established substantive rights. This is because "litigants have no vested right in a given mode of procedure." Id.
Under the law in effect when Edward Sanders 2 committed his crime, a trial court could consider only ten aggravators specified by statute in making the choice between a life and "natural life" sentence. 3 *663 The amended statute empowered the trial court to take into account twenty-one statutory aggravators. The trial court concluded only the original ten aggravating circumstances were relevant to its sentencing decision. The Arizona appeals court and supreme court affirmed. "Because the new statute thus allows the imposition of a sentence on the basis of factors that the prior law excluded from consideration [i.e., the twenty-one aggravators in the revised statute], it is plainly a substantive change in the law." Id. at 600 .
Under the Fell standard, the addition of eleven new aggravating cireumstances a court could consider was a "substantive" change. A fortiori, it appears the Indiana sentencing amendments, which now permit a trial court to impose any sentence authorized by a statute or the constitution "regardless of the presence or absence of aggravating cireumstances or mitigating civreumstances" are not merely "procedural." Those amendments allow "the imposition of a sentence on the basis of factors that the prior law excluded from consideration," Fell, 115 P.3d at 600 , those factors being aggravators not admitted by the defendant or proven to a jury. The amendments therefore "alter or affect earlier established substantive rights," id., specifically, a defendant's right to have aggravating cireaumstances submitted to a jury and found beyond a reasonable doubt before a presumptive sentence is enhanced.
In State v. Upton, 339 Or. 673 , 125 P.3d 713 (2005), the Court determined a Blakely-related statutory change could be applied retroactively because the change did not disadvantage the defendants to whom the amended statute was applied. The new statute authorized a court to submit to a jury any fact that is "constitutionally required to be found by a jury in order to increase the sentence that may be imposed upon conviction of a crime." Id. at 716 . Previously, a sentencing court could impose a sentence outside the presumptive range if it found "substantial and compelling reasons justifying a deviation from the presumptive sentence." Id. at 717 . A sentencing court was obliged under the prior statute to impose the presumptive sentence unless the judge found such "substantial and compelling reasons to impose a departure." Id.
The Court noted the Oregon Constitution prohibited as ex post facto laws "retroactive alterations of evidentiary rules that make it easier for the state to obtain a conviction." Id. at 719 . It rejected Upton's argument, finding the new law
changes only the method for determining the available punishment; it does not, however, increase that punishment. To the extent [the new law] changes the quantum of proof required under the sentencing guidelines, it inures to defendant's advantage to require the state to prove any enhancing factors beyond a reasonable doubt. For a statute to violate state or federal ex post facto clauses, the statute must at least effect some kind of disadvantageous change upon a defendant. We conclude [the new law] does not disadvantage defendant in any manner that violates the ex post facto clauses of either the federal or state constitutions.
Id. at 719 (citations omitted).
The Indiana amendments, by contrast, appear to "effect some kind of disadvantageous change upon a defendant" to the extent they permit the imposition of a maximum sentence without any finding of *664 aggravating cireumstances by any factfin-der-judge or jury. Accordingly, I believe the application of the new sentencing statutes to Banks, and other defendants who committed crimes before the effective date of the amendments, violates the prohibition against ex post facto laws.
However, a Blakely violation is subject to a harmless error analysis. See Rembert v. State, 832 N.E.2d 1130, 1133 (Ind.Ct.App.2005). Even under the previous sentencing statutes, Banks' extensive criminal history and his probationary status at the time of the offense would permit the imposition of an enhanced sentence. Because any error in sentencing Banks under the amended statute was harmless, I respectfully concur in the result.
. The amendment at issue in Ritchie was, obviously, pre-Blakely. The Ritchie Court did note the United States Supreme Court had granted certiorari in Summerlin v. Stewart, 341 F.3d 1082 (9th Cir.2003) cert. granted sub nom. Schriro v. Summerlin, 540 U.S. 1045 , 124 S.Ct 833 , 157 LEd.2d 692 (2003) to address the retroactive application of Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002). In Summerlin, the Ninth Circuit held that retroactive application of Arizona's change in its death penalty statute violated the ex post facto clause of the federal constitution by substituting the jury for the judge as the agent required to find the statutory aggravators. 341 F.3d at 1108 . Our Indiana Supreme Court noted: "Despite this holding, we believe the Indiana amendment neither changes the elements of the crime nor enlarges its punishment. It simply mandates that once the jury makes a recommendation, pursuant to its findings, the judge is to sentence 'accordingly.' " 809 N.E.2d at 264 .
On certiorari, the Supreme Court in Sum-merlin found the change was only procedural because it did not alter the range of conduct *662 Arizona law subjected to the death penalty. Instead, the rule altered the range of permissible methods for determining whether a defendant's conduct was punishable by death. Schriro v. Summerlin, 542 U.S. 348, 353 , 124 S.Ct. 2519 , 159 L.Ed.2d 442 (2004). More specifically, the Court characterized the rule as one that merely "allocate[s] decisionmak-ing authority," which rules are "prototypical procedural rules." Id. The Court contrasted rule changes that were substantive and apply retroactively because they carry a significant risk that a defendant "faces a punishment that the law cannot impose upon him." Id. at 352 , 124 S.Ct. 2519 .
The changes in the Indiana sentencing statute to provide for "advisory" rather than "presumptive" sentences appear to have the latter effect rather than the former. They do not "allocate" decisionmaking authority-rather, they make unnecessary any finding of aggravators before a maximum sentence may be imposed. In that sense, they subject a defendant to a punishment that could not previously have been imposed on him-i.e., a maximum sentence permitted by statute without any finding of, and thus presumably without the presence of, aggravating circumstances.
. Sanders was the defendant whose sentencing was addressed in FelZ.
. Under Arizona law, if the death penalty is not imposed for first-degree murder, the only other possible sentences are life with the pos *663 sibility of release after a specified period, which is referred to as a "life" sentence, or life with no possibility of eventual release, which is called a "natural life" sentence. Fell, 115 P.3d at 596-97 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9723586. Public record. Not legal advice.