ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
T. ANDREW PERKINS STEVE CARTER
Peterson & Waggoner, LLP Attorney General of Indiana
KELLY A. MIKLOS
Deputy Attorney General
COURT OF APPEALS OF INDIANA
KRISTOPHER ABNEY, )
vs. ) No. 25A05-0407-CR-394
STATE OF INDIANA, )
APPEAL FROM THE FULTON SUPERIOR COURT
The Honorable Wayne E. Steele, Judge
Cause No. 25D01-0307-FC-103
February 15, 2005
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Appellant-Defendant, Kristopher Abney (Abney), appeals his conviction
for Count I, possessing material capable of causing bodily injury by
inmate, a Class C felony, Ind. Code § 35-44-3-9.5.
Abney raises four issues on appeal, which we consolidate and restate
as the following two issues:
1) Whether the State presented sufficient evidence to sustain Abney’s
conviction for possessing material capable of causing bodily injury
by inmate; and
2) Whether the trial court properly sentenced Abney in light of Blakely
FACTS AND PROCEDURAL HISTORY
At approximately 2:30 a.m. on June 22, 2003, Jail Commander Jeff
Berlasty (Commander Berlasty) of the Fulton County Jail, received a report
that the inmates of cellblock #3 refused to retire to their cells for the
nightly lock-down. Cellblock #3 consists of a common area, surrounded by
four cells, with two cells upstairs and two cells downstairs. Although
each cell only contains one bunk bed, on June 22, 2003, cellblock #3 held
seven inmates. Three inmates were required to sleep on a mattress on the
floor of their respective cells. Abney was assigned to the lower right-
hand cell of cellblock #3.
Upon his arrival at cellblock #3, Commander Berlasty performed a
search of the cells. During this search, the inmates were removed and held
in a separate area. While searching Abney’s cell, Commander Berlasty
recovered, besides Abney’s personal effects, an item described as an
altered binderclip. In addition, he found a small item partially inserted
into a vent in the wall of Abney’s cell. Commander Berlasty characterised
this item as a shank, and described it as a hardened steel object with one
end wrapped in a face cloth secured by a string and the other end sharpened
to a point. The steel portion of this item originated from the altered
binderclip found among Abney’s personal effects. Following the search,
Commander Berlasty confronted Abney with the discovery of the altered
binderclip and shank. Although Abney admitted that he knew the shank was
in the vent, he denied possession of it, and instead claimed that another
inmate had left it there.
On July 9, 2003 the State filed an information against Abney, charging
him with Count I, possessing material capable of causing bodily injury by
inmate, a Class C felony. On April 9, 2004, the State filed an amended
information. On April 21 through April 22, 2004, a jury trial was held.
At the close of the evidence, the jury returned a guilty verdict on Count
I. On July 7, 2004, after a sentencing hearing, the trial court sentenced
Abney to an executed sentence of seven years, to be served at the
Department of Correction.
Abney now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence
First, Abney contends that the State did not present sufficient
evidence to sustain his conviction for possessing material capable of
causing bodily injury by inmate. Specifically, Abney claims that the State
failed to prove beyond a reasonable doubt that he constructively possessed
the device since he did not have exclusive use of his cell.
Our standard of review with regard to sufficiency claims is well-
settled. In reviewing sufficiency of the evidence claims, this court does
not reweigh the evidence or judge the credibility of the witnesses.
Williams v. State, 714 N.E.2d 671, 672-73 (Ind. Ct. App. 1999). We only
consider the evidence most favorable to the judgment and the reasonable
inferences therefrom and will affirm if there is substantial evidence of
probative value to support the conclusion of the trier-of-fact. Id. at
673. This court has held that a conviction for the crime charged may be
based on circumstantial evidence. Marrow v. State, 699 N.E.2d 675, 677
(Ind. Ct. App. 1998); Duren v State, 720 N.E.2d 1198, 1201 (Ind. Ct. App.
1999), trans. denied. Reversal is only appropriate when reasonable persons
would be unable to form inferences as to each material element of the
offense. Mabbitt v. State, 703 N.E.2d 698, 700 (Ind. Ct. App. 1998).
The offense of possessing material capable of causing bodily injury
by inmate as a Class C felony is defined by I.C. § 35-44-3-9.5, in
pertinent part, as: “[a] person who knowingly or intentionally while
incarcerated in a penal facility possesses a device, . . . that: (1) is
used; or (2) intended to be used; in a manner that is readily capable of
causing bodily injury commits a Class C felony. Thus, in order to convict
Abney, the State was required to prove that: (1) he knowingly possessed a
device while incarcerated, and (2) that the device is intended to be used
in a manner that is readily capable of causing bodily injury.
Here, the State prosecuted Abney under the theory of constructive
possession after conceding that Abney’s cell was not under his exclusive
possession. It is well-established that constructive possession occurs
when a defendant has both (i) the intent to maintain dominion and control
over the device and (ii) the capability to maintain dominion and control
over the item in question. Gee v. State, 810 N.E. 2d 338, 340 (Ind. 2004).
The proof of a possessory interest in the premises on which the device is
found is adequate to show the capability to maintain dominion and control.
See id. at 341. In essence the law infers that the party in possession of
the premises is capable of exercising dominion and control over all items
on the premises. See id.; Martin v. State, 372 N.E.2d 1194, 1197 (1978) (a
house or apartment used as a residence is controlled by the person who
lives in it and that person may be found in control of any drugs discovered
therein, whether he is the owner, tenant, or merely an invitee.). This
applies regardless whether the possession of the premises is exclusive.
Gee, 810 N.E.2d at 341.
In the instant case, Commander Berlasty testified that although
cellblock #3 was overcrowded on June 22, 2003, Abney was the sole occupier
of the lower right-hand cell. Even though the record supports that inmates
were free to move between cells during the day, Abney’s cell contained only
his mattress and his personal possessions. Therefore, we conclude that
Abney was in possession of his cell and thus capable of exercising dominion
and control over all items discovered on these premises. See id.
However, the law takes a different view with regard to the intent
prong of constructive possession. When a defendant’s possession of the
premises on which the device is found is not exclusive, then the inference
of intent to maintain dominion and control over the device must be
supported by additional circumstances pointing to the defendant’s knowledge
of the nature of the device and its presence. See id. These additional
circumstances can be found through a variety of means: (1) incriminating
statements made by the defendant; (2) attempted flight or furtive gestures;
(3) location of substances like drugs in settings that suggest
manufacturing; (4) proximity of the contraband to the defendant; (5)
location of the contraband within the defendant’s plain view; and (6) the
mingling of the contraband with other items owned by the defendant. Id.
In the case at bar, Commander Berlasty testified that the device was
partially inserted into a vent in Abney’s cell with the part secured by a
cloth sticking out into the cell. He stated that even though the sharpened
end of the device was inserted into the vent, the other end was visible
from the cell and did not take long to be discovered during the search.
Commander Berlasty elaborated that the sharpened end of the device was
constructed of hardened steel, originating from an altered binderclip. The
record shows that this altered binderclip was found on the desk of Abney’s
cell, amongst his other personal possessions. Furthermore, in his
statement to Sergeant Edward Beaird of the Fulton County Sheriff’s
Department, Abney admitted to knowing that the device was in his cell. As
a result we conclude that Abney intended to maintain dominion and control
over the device.
Next, Abney asserts that the State failed to prove beyond a reasonable
doubt that the device was used or intended to be used in a manner readily
capable of causing bodily injury. See I.C. § 35-44-3-9.5. We agree with
Abney that the phrase “intended to be used” is part of the relative clause,
modifying the antecedents “in a manner that is readily capable of causing
bodily injury” and is not indicative of his level of culpability. See
Hevenor v. State, 784 N.E.2d 937, 941 (Ind. Ct. App. 2003). Rather, the
culpability level for I.C. § 35-44-3-9.5 is clearly defined in the opening
sentence as “a person who knowingly or intentionally . . . possesses.”
During trial, Commander Berlasty described the device as a hardened
piece of steel, sharpened to a point. He elaborated its usage as a
defensive weapon, easily capable of causing bodily injury to guards, other
inmates, and the public in general. Based on Commander Berlasty’s
testimony, we conclude that the jury could reasonably infer that the device
was intended to be used in a manner readily capable of causing bodily
injury. See I.C. § 35-44-3-9.5; see Williams, 714 N.E.2d at 672-73.
However, Abney now urges us to discard Commander Berlasty’s testimony
regarding the characterization of the device because of his limited time of
employment in his current position. Nevertheless, Abney’s assertion
amounts to nothing more than an invitation to reweigh Commander Berlasty’s
testimony. We decline this invitation.
In light of the evidence before us, we conclude that the jury could
reasonably find that Abney was an inmate, possessing material capable of
causing bodily injury. The record clearly indicates that Abney had both
the intent and capability to maintain dominion and control over the device
and that the device was intended to be used in a manner capable of causing
bodily injury. See I.C. § 35-44-3-9.5. Accordingly, we find that there is
substantial evidence of probative value to support the conclusion of the
jury. See Williams, 714 N.E.2d at 672. Consequently, we hold that the
State presented sufficient evidence to support Abney’s conviction.
Next, 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.
A. Blakely v. Washington
The determination of the appropriate sentence rests within the
discretion of the trial court and we will not reverse the trial court’s
determination absent a showing of manifest abuse. Powell v. State, 751
N.E.2d 311, 314 (Ind. Ct. App. 2001). In Blakely, however, the United
States Supreme Court held that the Sixth Amendment requires a jury to
determine beyond a reasonable doubt the existence of aggravating factors
used to increase the sentence for a crime above the presumptive sentence
assigned by the legislature. Blakely, 124 S.Ct. at 2536. Specifically,
the Supreme Court held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt.
Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000)). The Supreme Court defined this statutory maximum 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.
(emphasis in original). “In other words, 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. Id.
(emphasis in original). Furthermore, we are convinced that the Supreme
Court’s recent opinion in United States v. Booker, 543 U.S. ---, ----
(2005) (Stevens, J., writing for the Court) does not alter the Blakely rule
as it applies in Indiana. As Justice Stevens espoused, “Any fact (other
than a prior conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved by a jury beyond a
reasonable doubt.” Id, slip op. at 20. This statement is reinforced by
Justice Breyer writing that, “the Court holds that . . . the Sixth
Amendment requires juries, not judges to find facts relevant to
sentencing.” Id., slip op. at 2.
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.
B. Indiana’s Sentencing Scheme
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 newly, established caselaw, 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 one
based on a factor not admitted by the defendant or submitted to the jury
and proven beyond a reasonable doubt.
C. Use of Aggravating Circumstances
In the instant case, the trial court sentenced Abney to an enhanced
sentence of seven years for possessing material capable of causing bodily
injury by inmate as a Class C felony. Indiana Code section 35-50-2-6
provides that “a person who commits a Class C felony shall be imprisoned
for a fixed term of four years, with not more than four years added for
aggravating circumstances or not more than two years subtracted for
mitigating circumstances.” Our review of the elaborate sentencing order
reveals that the trial court enhanced Abney’s sentence based on the
following aggravators: (1) Abney’s prior juvenile and adult criminal
history that indicates a consistent inability to conform his conduct to the
law and rules of society; (2) Abney’s prior criminal history indicates a
high risk of future criminal behavior; (3) the crime for which Abney was
convicted was committed while incarcerated for another alleged crime and
while on probation for a Class B felony burglary conviction; and (4) past
probation and short jail term have not deterred Abney from violating the
law, demonstrating an inability to abide by the law, to reform his behavior
and a disdain for the trial court’s sentencing authority. In balancing
these aggravators, the trial court specifically addressed Abney’s proffered
mitigators but did not assign them any weight.
Abney now asserts error in the trial court’s findings of the four
aggravators. In particular, Abney alleges that (1) juvenile adjudications
do not constitute prior convictions and thus must be supported by jury
findings under Blakely; (2) several adult charges listed in the trial
court’s sentencing order resulted in dismissals, rather than convictions,
and thus should be found by a jury; (3) the trial court’s aggravator that,
based on his criminal history, Abney has a high risk of committing future
criminal behavior should be found by a jury; and (4) the trial court
impermissibly used a material element of the offense to enhance Abney’s
sentence. We will discuss each of these arguments in turn.
In this court’s recent opinion of Ryle v. State, --- N.E.2d --- (Ind.
Ct. App. Dec. 14, 2004), we specifically held that juvenile adjudications
are considered “prior convictions” under Apprendi, and thus can be properly
identified by the trial court without any prior finding by the jury.
However, our review of Abney’s juvenile adjudications shows that only two
charges of the total four charges resulted in formal adjudications. As a
result, we conclude that only these two formal adjudications can be
characterized as aggravators for the purpose of enhancing Abney’s sentence.
With regard to Abney’s adult criminal history, the record lists six
separate offenses. The record reflects that two of these six offenses were
dismissed. In light of Blakely’s clear language that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime
beyond the statutory maximum must be submitted to a jury and proved beyond
a reasonable doubt,” the dismissed offenses cannot be used as aggravators
without a specific finding by a jury. See Blakely, 124 S.Ct. at 2536. No
such finding was made in the instant case; accordingly, we conclude that
only four offenses can be properly used as the basis of the aggravating
Further, we find that the trial court’s generalized aggravators
relating to Abney’s possible future criminal conduct and inability to
conform his behavior to the law and rules of society fall outside the scope
of Blakely. The trial court clearly based its assessment of Abney’s future
behavior on Abney’s current juvenile and adult criminal history. Even
though we found that several offenses listed in his criminal history cannot
be used as aggravators, nevertheless, his history remains impressive, and
properly supported the trial court’s generalized aggravator. As we have
held before, where an enhanced sentence is based upon a defendant’s prior
history and aggravators derived of that history, the Blakely analysis is
not implicated. See Bledsoe v. State, 815 N.E.2d 507, 508 (Ind. Ct. App.
2004), opinion on reh’g; Carson v. State, 813 N.E.2d 1187, 1189 (Ind. Ct.
Lastly, Abney argues that the trial court used a material element of
the instant offense as an aggravator. In its sentencing order, the trial
court listed as aggravator “the crime for which [Abney] was convicted was
committed while incarcerated for another alleged crime and while on
probation for a Class B felony burglary conviction.” (Appellant’s App. p.
24). Yet, Indiana Code section 35-44-3-9.5 requires, as an element of the
crime of possessing material capable of causing bodily injury by inmate,
that the person charged be incarcerated in a penal facility. Thus, we
agree that the trial court’s finding of Abney’s incarceration is an
improper aggravator since it is also a material element of the crime. See
Donnegan v. State, 809 N.E.2d 966, 978 (Ind. Ct. App. 2004) (holding that a
material element of an offense cannot be used to enhance a sentence).
However, we find that the trial court’s finding that Abney committed the
instant offense while on probation for a burglary conviction is a proper
aggravator because it is derivative of Abney’s criminal history, and
consequently, no Blakely analysis is triggered. See Bledsoe, 815 N.E.2d at
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. See Patrick v. State, ---N.E.2d --- (Ind. Ct. App. Dec.
23, 2004). As we explained in Means v. State, 807 N.E.2d 776, 778 (Ind.
Ct. App. 2004), trans. denied
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. This
occurs when the invalid aggravator played a relatively unimportant
role in the trial court’s decision. When a reviewing court “can
identify sufficient aggravating circumstances to persuade it that the
trial court would have entered the same sentence even absent the
impermissible factor, it should affirm the trial court’s decision.”
When a reviewing court “cannot say with confidence that the
impermissible aggravators would have led to the same result, it should
remand for re-sentencing by the trial court or correct the sentencing
Here, the trial court identified four aggravators. While we
invalidated some parts of these four aggravating circumstances under
Blakely, we did not outright reject a single aggravating factor. As a
result, Abney’s enhanced sentence is based upon the following valid
aggravators: (1) Abney’s criminal history consisting of two juvenile
adjudications and four adult convictions; (2) his high risk to exhibit
future criminal behavior; (3) the instant offense was committed while on
probation for burglary; and (4) Abney’s inability to abide by the law. The
trial court did not attach any weight to Abney’s proffered mitigators.
Given the importance of these four aggravating circumstances, combined with
the non-existence of any mitigating factors, 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.
Accordingly, we are not in a position to revise Abney’s sentence on appeal.
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.
CRONE, J., concurs.
ROBB, J., concurs in result with opinion.
COURT OF APPEALS OF INDIANA
KRISTOPHER ABNEY, )
) No. 25A05-0407-CR-394
STATE OF INDIANA, )
ROBB, Judge, 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.” Slip op. at
10. 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
In Apprendi, the Supreme Court held that “[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.” 530 U.S. at 490. In that case, the defendant
entered a plea of guilty to two counts of second-degree possession of a
firearm for an unlawful purpose and one count of third-degree unlawful
possession of an antipersonnel bomb. Under New Jersey state law, a second-
degree offense carried a penalty range of five to ten years and a third-
degree offense carried a penalty range of three to five years. As part of
the plea agreement, the State reserved the right to request the court
impose a higher enhanced sentence for one of the second-degree offenses on
the ground that the offense was committed with a biased purpose pursuant to
the state hate crime statute. The defendant reserved the right to
challenge the enhancement. At the plea hearing, a factual basis for the
three charged counts was established and the trial court confirmed that the
defendant understood the possible maximum sentences for each count. The
trial court accepted the guilty plea and the State then made a formal
motion for an enhanced term. The trial court held an evidentiary hearing
on the enhancement and concluded the evidence supported a finding by a
preponderance of the evidence that the crime was motivated by racial bias
and undertaken with a purpose to intimidate. The court accordingly found
that the hate crime enhancement applied, and sentenced the defendant to a
twelve-year term of imprisonment for the count at issue. The Supreme Court
held that the sentence was impermissible because it was greater than the
ten-year maximum for the offense charged; despite the fact that New Jersey
labeled the hate crime statute a sentencing factor, a finding that the
defendant violated the statute exposed the defendant to a greater
punishment than authorized by the jury’s verdict and must therefore be
proven beyond a reasonable doubt. Id. The Court also noted, however, that
nothing in this history [of due process and the right to trial by
jury] suggests that it is impermissible for judges to exercise
discretion – taking into consideration various factors relating both
to offense and offender – in imposing a judgment within the range
prescribed by statute. . . . [O]ur periodic recognition of judges’
broad discretion in sentencing . . . has been regularly accompanied by
the qualification that that discretion was bound by the range of
sentencing options prescribed by the legislature.
Id. at 481 (internal citations omitted).
Subsequently, in the first reported case in Indiana to consider
application of the Apprendi holding, this court held that the
enhancement of a defendant’s sentence pursuant to Indiana Code section 35-
50-2-11 did not offend due process under the Apprendi standard. Parker v.
State, 754 N.E.2d 614, 618-19 (Ind. Ct. App. 2001). Section 35-50-2-11
provides, in relevant part:
(c) The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed an
offense sentenced to an additional fixed term of imprisonment if the
state can show beyond a reasonable doubt that the person knowingly or
intentionally used a firearm in the commission of the offense.
(d) If after a sentencing hearing a court finds that a person
who committed an offense used a firearm in the commission of the
offense, the court may sentence the person to an additional fixed term
of imprisonment of five (5) years.
The defendant in Parker was charged with robbery as a Class A felony for an
incident during which a man was shot twice. The charging information
alleged that the defendant committed the robbery while armed with a
handgun. The jury was given alternative theories upon which it could
convict the defendant of the Class A felony: serious bodily injury to the
victim, the use of or threat of use of force, or the use of a handgun. The
jury found him guilty as charged, although the verdict did not reveal upon
which theory it determined guilt. The trial court sentenced the defendant
to forty years for the robbery conviction, enhanced by an additional five
years pursuant to section 35-50-2-11. The defendant argued on appeal that
the enhancement was unconstitutional. We held otherwise, noting that
regardless of the theory upon which the jury found him guilty, the jury had
to have determined beyond a reasonable doubt that a gun was used. Id. at
618. Moreover, in reference to the “prescribed statutory maximum” language
from Apprendi, we noted that a Class A felony has a sentencing range from a
presumptive thirty year sentence to a maximum sentence of fifty years and
defendant was sentenced to forty years plus a five-year enhancement;
therefore, application of the enhancement did not increase the maximum
penalty for his offense. Id. at 618 n.7. We have recently noted that this
language from Parker impliedly held that the “prescribed statutory maximum”
under our sentencing statutes referred to the maximum sentence in the
statutory sentencing range that a defendant could receive for his offense.
Williams, 818 N.E.2d at 976.
In 2004, the United States Supreme Court decided Blakely, and
expanded upon Apprendi by further defining the “prescribed statutory
the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant. In
other words, 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.
124 S. Ct. at 2537 (emphasis in original) (internal citations omitted). In
Blakely, the defendant was initially charged with first-degree kidnapping
in Washington. Pursuant to a plea agreement, the defendant pled guilty to
second-degree kidnapping involving domestic violence and use of a firearm.
Under Washington’s sentencing statutes, the offense of second-degree
kidnapping with a firearm carried a standard range of forty-nine to fifty-
three months. However, the trial court could enhance a sentence above the
standard range if it found certain aggravating factors, including that the
defendant had acted with “deliberate cruelty.” Finding that the defendant
acted with deliberate cruelty, the trial court in Blakely sentenced the
defendant to ninety months. The Supreme Court held that because the facts
surrounding the defendant’s exceptional sentence were neither admitted by
him nor found by a jury, the sentence violated the defendant’s Sixth
Amendment right to trial by jury. Id. at 2538. The Court specifically
noted that the federal Sentencing Guidelines were not at issue and
expressed no opinion about the constitutionality of the federal Guidelines.
Id. at 2538 n.9.
Blakely caused great confusion among lower courts charged with
imposing sentences in its wake. In Indiana, appellants almost immediately
began raising the issue to attack their judicially-enhanced sentences and
the State countered that Blakely was inapplicable in Indiana. Backing off
the earlier Parker formulation of the “prescribed statutory maximum” as the
maximum sentence in the statutory range, we determined that the maximum
sentence a judge may impose in Indiana without additional findings is the
presumptive sentence and therefore, Blakely does implicate our sentencing
scheme. See Traylor, 817 N.E.2d at 622 (“Under Indiana law, after a jury
returns a guilty verdict, the trial court can only impose the presumptive
sentence, as outlined in the statute, without finding any additional facts.
Therefore, the presumptive sentence for an offense is the prescribed
statutory maximum for Apprendi/Blakely purposes.”); Strong, 817 N.E.2d 256,
262 (Ind. Ct. App. 2004) (“[I]nasmuch as Indiana’s present sentencing
procedure allows a trial court, without the aid of a jury, to enhance a
sentence where certain factors are present, it violates a defendant’s Sixth
Amendment right to have a jury determine all facts legally essential to his
or her sentence, pursuant to Blakely.”). No appellate decision directly
addressing the issue has yet decided otherwise.
Earlier this year, the United States Supreme Court handed down
another in the line of Apprendi/Blakely cases and addressed the question
specifically left unanswered in Blakely regarding the constitutionality of
the federal Guidelines. United States v. Booker, --- U.S. ---, 2005 WL
50108 (2005). Booker was actually two consolidated cases. In the first,
Booker was charged with possession with intent to distribute at least fifty
grams of crack. The jury heard evidence that he had 92.5 grams of crack in
his duffel bag when arrested and found him guilty of the charge. Based
upon Booker’s criminal history and the quantity of drugs found by the jury,
the federal Sentencing Guidelines required a base sentence between 210 and
262 months. At a sentencing hearing, the judge concluded by a
preponderance of the evidence that Booker had possessed an additional 566
grams of crack and that he was guilty of obstructing justice. Based upon
these findings, the Guidelines mandated a sentence between 360 months and
life imprisonment. The judge sentenced Booker to 360 months. In the
second case, Fanfan was charged with conspiracy to distribute and to
possess with intent to distribute at least 500 grams of cocaine. The jury
found that Fanfan had possessed 500 or more grams of cocaine with the
intent to distribute. Under the Guidelines, the maximum sentence
authorized by the jury finding was 78 months. Fanfan’s sentencing hearing
was held a few days after the Court’s decision in Blakely. The trial court
found additional facts by a preponderance of the evidence that, under the
Guidelines, would have authorized a sentence of 188 to 235 months.
However, based upon Blakely, the trial court declined to enhance the
sentence based upon its additional findings and imposed a sentence that was
based solely on the guilty verdict in the case.
The Court held that the Sixth Amendment is violated by imposition of
an enhanced sentence under the Guidelines based upon the judge’s
determination of a fact that was not found by a jury or admitted by the
defendant. Id. at *15. The Court expressly reaffirmed its holding in
Apprendi that “any fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” Id. In so
holding, however, the Court also echoed language from Apprendi concerning
the constitutional difference between mandatory and discretionary
If the Guidelines as currently written could be read as merely
advisory provisions that recommended, rather than required, the
selection of particular sentences in response to differing sets of
facts, their use would not implicate the Sixth Amendment. We have
never doubted the authority of a judge to exercise broad discretion in
imposing a sentence within a statutory range. See Apprendi, 530 U.S. at 481 . . . . Indeed, everyone agrees that the constitutional issues
presented by these cases would have been avoided entirely if Congress
had omitted from the [Sentencing Reform Act] the provisions that make
the Guidelines binding on district judges . . . . For 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 *8 (some internal citations omitted). The remedy the Court fixed
for the constitutional violation was to excise those provisions of the
Guidelines which made them mandatory and binding upon trial judges. It is
the language from Booker regarding trial court discretion in sentencing,
coupled with the remedy the Court chose to render the Guidelines
constitutional, that I believe requires we reconsider the effect of Blakely
on our sentencing scheme. I believe it is no longer possible to read
Blakely in isolation.
Blakely held that under any sentencing scheme, a trial court can
exceed the prescribed statutory maximum and not implicate the Sixth
Amendment if the defendant has a criminal history or admits additional
facts supporting enhancement. What Booker adds to the discussion is that
under a discretionary sentencing scheme, the Sixth Amendment is not
implicated at all. It is true, as our earlier cases have stated, that in
Indiana, the presumptive sentence is the only sentence the trial court can
impose without making any additional findings. See, e.g., Ind. Code § 35-
50-2-6 (“A person who commits a Class C felony shall be imprisoned for a
fixed term of four (4) years, with not more than four (4) years added for
aggravating circumstances or not more than two (2) years subtracted for
mitigating circumstances.”). However, the additional findings and the
sentencing impact thereof are entirely within the trial court’s discretion.
Although Indiana Code section 35-38-1-7.1 contains a list of seven
factors which the trial court “shall” consider in determining what sentence
to impose for a crime – in addition to a non-exhaustive list of aggravating
and mitigating circumstances which the trial court “may” consider – no
particular additional penalty is required to be imposed upon a finding of
any one or more of those factors. In Indiana, any sentence above or below
the presumptive is discretionary. The fact that a trial court judge is
required to consider certain factors does not necessarily mean that a
defendant’s sentence will be enhanced. In fact, even a finding of criminal
history or facts admitted by the defendant would not necessarily require
enhancement. The judge may find a certain aggravating factor to exist, but
assign minimal weight to the factor and decline to enhance the sentence;
the judge may determine that the aggravating factor is balanced by
mitigating factors and decline to enhance the sentence; the judge may
determine that the aggravating factor is outweighed by mitigating factors
and reduce the sentence; or the judge may simply decline to find the factor
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.
 No case since Parker and prior to Blakely has squarely addressed
the application of Apprendi in any context other than a death penalty case.
 Our supreme court currently has several cases raising a Blakely
issue under advisement.