Sean Strong v. State of Indiana

 
FOR PUBLICATION
 
 

ATTORNEY FOR APPELLANT :    ATTORNEYS FOR APPELLEE:
 
ELLEN M. O'CONNOR    STEVE CARTER
Marion County Public Defender Agency    Attorney General of Indiana
Indianapolis, Indiana
             MICHAEL GENE WORDEN                Deputy Attorney General
            Indianapolis, Indiana    

    
 
IN THE COURT OF APPEALS OF INDIANA SEAN STRONG, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-0401-CR-25 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

 
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patricia J. Gifford, Judge
Cause No. 49G04-0205-MR-143983
 
 

January 12, 2005

 
OPINION ON REHEARING - FOR PUBLICATION
 
BAILEY, Judge
 
    We issued our opinion in this appeal on November 5, 2004. On December 6, 2004, the State filed a Petition for Rehearing arguing that we had erroneously held that Strong "did not waive his Blakely claim." Appellee's Pet. Reh'g at 1. We grant the State's petition for rehearing for the limited purpose of clarifying this issue, and we affirm our original opinion.
In our opinion, we addressed, in relevant part, the State's argument that Strong had waived any sentencing error with respect to Blakely v. Washington, 124 S. Ct. 2531 (2004), reh'g denied, because he failed to object at the sentencing hearing pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) . See Strong v. State, 817 N.E.2d 256, 258-59 (Ind. Ct. App. 2004). In Blakely, the United States 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,' or admitted by the defendant." Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490). In Strong, however, we noted that, while Blakely relied upon Apprendi for the preceding proposition, it redefined the "statutory maximum" for purposes of Apprendifrom the prescribed statutory maximum that a defendant could receive if the preponderance of certain aggravating and mitigating circumstances, as found by the trial court, weighed in favor of the higher term to the maximum sentence that a trial judge may impose without any additional findings, i.e., the presumptive or standard sentence. Strong, 817 N.E.2d at 260. Accordingly, we held that a defendant, such as Strong, who challenges his enhanced sentence, which was imposed prior to the United States Supreme Court's decision in Blakely, but fails to do so on grounds of Apprendi has not waived his argument pursuant to Blakely. See Strong, 817 N.E.2d at 259-61. We reaffirm this holding today.
    We caution, however, that this holding should not be interpreted to imply that a defendant might never waive his or her Blakely argument. Rather, there are circumstances wherein a defendant may waive his or her Blakely contention. For example, as noted by the Blakely court, guilty plea defendants may waive their Apprendi rights by either stipulating to the relevant facts supporting the sentence enhancements or consenting to judicial factfinding. Blakely, 124 S. Ct. at 2541.
    Additionally, a defendant may "waive" the right to raise an issue at a particular juncture through procedural default. See footnote See Bledsoe v. State, 815 N.E.2d 507, 507 (Ind. Ct. App. 2004) (holding, on petition for rehearing, that a defendant had "technically waived" any argument that his sentence violated the Sixth Amendment right to have the facts supporting the enhancement of his sentence determined by a jury, pursuant to Blakely, because he raised such issue for the first time on rehearing when he should have raised it during the direct appeal, i.e., the appropriate procedural "juncture"), trans. denied; See footnote see also Carson v. State, 813 N.E.2d 1187, 1188-89 (Ind. Ct. App. 2004) ("Given that Carson did not challenge his sentence on direct appeal, he has technically waived review of this issue, and the appropriate procedure would have been to challenge his sentence through post-conviction relief. See Ind. Post-Conviction Rule 1[(1)](a)(1)."), reh'g denied.
    For the foregoing reasons, we grant the State's Petition for Rehearing for the sole purpose of clarifying the waiver issue. In all other respects, we affirm the Strong opinion.
SHARPNACK, J., and MAY, J., concur.

Footnote: In Bunch v. State, 778 N.E.2d 1285, 1287 (Ind. 2002), our supreme court recognized that the term "waiver" has been applied to several different concepts and, further, distinguished "between waiver as an affirmative defense and a discretionary judicial doctrine that forecloses an issue on appeal." Specifically, the Bunch court clarified that, because waiver as an affirmative defense is governed by Indiana Trial Rule 8(C)which requires parties to plead waiver as an affirmative defense and, as a consequence, places the burden of proof at trial on the party asserting such affirmative defenseit is only applicable in circumstances where the party asserting waiver has argued such defense before the lower court. Id. Indeed, a party that fails to argue waiver, is not entitled to prevail on the issue of waiver as an affirmative defense. Id. By contrast, the latter form of waiver, which is more appropriately described as "procedural default" or "forfeiture," is a doctrine of judicial administration whereby appellate courts may sua sponte find an issue foreclosed under a variety of circumstances in which a party has failed to take the necessary steps to preserve the issue. Id. (citations omitted).
Footnote: Despite the defendant's procedural default, the Bledsoe court examined the merits of his Blakely claim and, still, affirmed his enhanced sentence as a result of his prior criminal history, i.e., an enhancement that does not implicate Blakely. Bledsoe, 815 N.E.2d at 508.