concurring in result.
I concur with the result reached by the majority that any Blakely error in this case was harmless. I disagree with the analysis the majority utilizes with regard to the standard of "with confidence" in assessing whether the error was harmless, citing to Trusley v. State, 829 N.E.2d 923, 927 (Ind.2005). I believe that the proper standard is whether we can say, beyond a reasonable doubt, that the trial court would have imposed an identical sentence without considering aggravators that might have violated Blakely. Although this may appear to be a matter of semantics, I am concerned that the "with confidence" standard is too lenient, and allows affirmance of sentences that the "beyond a reasonable doubt" standard would not.
As the author of Freeze v. State, 827 N.E.2d 600, 604 (Ind.Ct.App.2005), I attempted to articulate the "beyond a reasonable doubt" standard that, in my opinion, should apply in cireumstances such as these. In so holding, I relied on an earlier decision of this court by Judge Sullivan, who, I believe correctly, cited Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), as controlling the review of whether a Blakely error in sentencing was harmless. See Holden v. State, 815 N.E.2d 1049, 1060 (Ind.Ct.App. 2004), trans. denied. Chapman holds that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman, 386 U.S. at 24, 87 S.Ct. at 828. Also, the State bears the burden of establishing harmlessness. See id. When reviewing federal constitutional claims, we are bound to follow the standards set forth by the United States Supreme Court. See id. at 21, 87 S.Ct. at 826-27 (holding the California Supreme Court erred in applying state law harmless error formulation in reviewing a federal constitutional claim). Thus, I conclude we must apply Chapman in reviewing whether a Blakely error was harmless. '
My view is supported by a number of federal courts of appeal that have addressed whether a Blakely constitutional error was harmless following the Supreme Court's invalidation of the mandatory federal sentencing guidelines in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Vazquez-Rivera, 407 F.3d 476, 489-90 (Ist Cir.2005), cert. denied; United States v. *1090Pineiro, 410 F.3d 282, 285 (5th Cir.2005); United States v. Archuleta, 412 F.3d 1003, 1006 (8th Cir.2005); United States v. Lang, 405 F.3d 1060, 1065 (10th Cir.2005); United States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir.2005); United States v. Coumaris, 399 F.3d 343, 350 (D.C.Cir. 2005). The contrary view in the federal circuits appears to be that constitutional-level Booker/Blakely errors are not amenable at all to harmless error review and that remand for resentencing is automatically required in such cases. See United States v. Davis, 407 F.3d 162, 164-65 (3rd Cir.2005); United States v. Oliver, 397 F.3d 369, 381 (6th Cir.2005). I am not prepared to go that far. It seems to me, our choice in the event of Blakely error is between either automatic remand for re-sentencing or application of "beyond a reasonable doubt" harmless error review, and nothing less.
I conclude that Davis's extensive criminal history is such that I am convinced, beyond a reasonable doubt, that the trial court would have imposed an identical sentence solely in reliance upon that history. Therefore, I concur in result.