Prickett v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sarah L. Nagy Steve Carter
Indianapolis, Indiana Attorney General of Indiana

Grant H. Carlton
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
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No. 06S04-0509-CR-413

SHAWN A. PRICKETT,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Boone County Superior Court I, No. 06D01-0110-CF-0107
The Honorable Matthew C. Kincaid, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 06A04-0410-CR-00553
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November 21, 2006

Sullivan, Justice.

Defendant Shawn Prickett was convicted of child molesting for having sex with a 13-
year-old girl. The presumptive sentence for this crime is 30 years. Prickett was sentenced to 40
years and ordered to pay restitution and register as a sex offender. He contends that the evidence
at his trial was insufficient to support his conviction, but we find that there was ample evidence
to support the jury’s verdict. He also argues that the restitution and registration orders were im-
posed absent jury findings required by Blakely v. Washington, 542 U.S. 296 (2004), but we hold
that Blakely imposes no such requirement. We do agree with Prickett that the factors relied on
by the trial court did not justify increasing the sentence above 30 years.

Background

The facts most favorable to the judgment show that on the evening of October 5, 2001,
A.M., age 13, went to the house of her friend, M.D. Also at the home that evening were M.D.’s
half brother, Shawn Prickett, age 21, and his friends Justin Anderson, Quinn Bailey, and Cassie
Wetherald.

Prickett and his three friends were in an upstairs room of the home and were eventually
joined by A.M. and M.D. M.D. left the upstairs room shortly after arriving, while A.M. re-
mained alone with Prickett and his friends. At some point after M.D.’s departure, Prickett asked
A.M. to remove her clothing. A.M. complied with Prickett’s request out of fear. Prickett then
removed his own clothing and engaged in sexual intercourse with A.M. as his friends remained
in the room and watched. During this encounter, Prickett also touched A.M.’s breast. The en-
counter ended after Prickett became angry at A.M.’s requests that he stop.

A.M. reported this incident to the Lebanon City Police Department on October 14, 2001.
Prickett was subsequently charged with one count of Class A felony child molesting and one
count of Class C felony child molesting. After a jury trial, Prickett was found guilty on both
charges.

At his sentencing hearing, Prickett received a sentence of 40 years for the Class A felony
child molesting conviction and a sentence of 8 years for the Class C felony child molesting con-
viction. The sentencing court enhanced both sentences from their respective 30- and four-year
presumptives on the following aggravating bases: (1) Prickett had been on probation at the time
he committed the offenses; (2) he had a previous criminal record; (3) he was in need of correc-
tional and rehabilitative treatment that was best provided by commitment to a penal facility; and
(4) his crime was committed forcibly. On balance, the court found no mitigating circumstances.

2
It ordered that the sentences run concurrently. Prickett appealed both his convictions and his
sentences.

In an unpublished memorandum decision, the Court of Appeals affirmed both of
Prickett’s convictions for Class A and Class C felony child molesting. Prickett v. State, No.
06A04-0410-CR-553, slip op., 831 N.E.2d 854 (Ind. Ct. App. 2005) (table). With respect to
Prickett’s sentence, the court found that it was appropriate given “his extensive criminal history .
. . .” Id., slip op. at 7. Prickett sought, and we granted, transfer. Prickett v. State, 841 N.E.2d
183 (Ind. 2005) (table).

Discussion

Prickett presents three arguments. He asserts there was insufficient evidence to support
his conviction. Prickett also contends that his sentence was unconstitutional because it “ex-
ceed[ed] the presumptive sentence established by the Legislature, [and was] based upon aggra-
vating factors not found by a jury.” Pet. to Trans. at i. Lastly, Prickett argues that the trial court
committed reversible error in ordering him to register as a sex offender and pay restitution to his
victim since “there was no independent finding by a jury beyond a reasonable doubt that [his]
conduct met the requirements to merit the[se] additional penalt[ies] . . . .” Id. at 7.

I

Prickett claims there is insufficient evidence to support his conviction because the testi-
mony of the witnesses was “all conflicting.” Id. at 1. It is well established that where a defen-
dant is challenging the sufficiency of the evidence to support a conviction, we “neither reweigh
the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evi-
dence of probative value supporting each element of the crime from which a reasonable trier of
fact could have found the defendant guilty beyond a reasonable doubt.” Wright v. State, 828
N.E.2d 904, 906 (Ind. 2005) (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). The
factfinder bears the responsibility for determining whether the evidence in a given case is suffi-

3
cient to satisfy each element of an offense, and we consider conflicting evidence in the light most
favorable to the trial court’s ruling. See id.

Indiana Code section 35-42-4-3(a) provides that a person who is at least 21 years of age
commits Class A felony child molesting if, “with a child under fourteen (14) years of age, [he or
she] performs or submits to sexual intercourse or deviate sexual conduct . . . .” Section (b) of the
statute makes it a Class C felony for a person, “with a child under fourteen (14) years of age, [to]
perform[ ] or submit[ ] to any fondling or touching, of either the child or the older person, with
intent to arouse or to satisfy the sexual desires of either the child or the older person . . . .”

In the instant case, the evidence shows that Prickett was 21 years of age and A.M. was 13
years old at the time of the crime. In addition to the testimony of the victim, A.M., Justin Ander-
son, and Quinn Bailey also gave eyewitness testimony at trial indicating that Prickett and A.M.
had engaged in sexual intercourse on October 5, 2001. Anderson also testified to witnessing
Prickett having touched A.M.’s breast during this incident.

Prickett points us to inconsistent testimony regarding the victim’s demeanor after the in-
cident and the precise location of the witnesses and occupants of the home during the commis-
sion of the crime. All of these facts were put before the factfinder, which weighed the testimony
and determined that Prickett had committed Class A and Class C felony child molesting beyond
a reasonable doubt. 1 Under the above circumstances and the reasonable inferences that could be
drawn from them, and given the probative evidence, we find that the evidence was sufficient for
a reasonable trier of fact to find Prickett guilty of Class A and Class C felony child molesting. 2

1
Prickett also argues that certain aspects of Justin Anderson’s testimony were “incredibly dubious, and
unbelievable.” Pet. to Trans. at 1. Reliance upon the “incredible dubiosity” rule is permitted, however,
only “where a sole witness presents inherently contradictory testimony that is equivocal or coerced and
there is a lack of circumstantial evidence of guilt.” Whedon v. State, 765 N.E.2d 1276, 1278 (Ind. 2002).
Prickett’s challenge based upon the incredible dubiosity rule fails to meet that threshold for the reasons
already set forth above.
2
Based upon concession by the State, the Court of Appeals ordered the Class C conviction vacated on
double jeopardy grounds. We summarily affirm the Court of Appeals on this point. Ind. Appellate Rule
58(A)(2).

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 II

Indiana Code section 35-50-2-4 governs the sentencing parameters to be applied to per-
sons convicted of Class A felonies. It directs that “a person who commits a Class A felony shall
be imprisoned for a fixed term of thirty (30) years, with not more than twenty (20) years added
for aggravating circumstances or not more than ten (10) years subtracted for mitigating circum-
stances . . . .” 3 As noted earlier, the trial court sentenced Prickett to an enhanced term of 40
years of imprisonment for committing Class A felony child molesting. He now seeks relief from
that enhanced sentence.

A

When a trial court relies on mitigating or aggravating circumstances in deciding whether
to deviate from the statutory presumptive sentence, it is required to: “(1) identify all significant
mitigating and aggravating circumstances; (2) state the specific reason why each circumstance
has been determined to be mitigating or aggravating; and (3) articulate the court’s evaluation and
balancing of circumstances.” Francis v. State, 817 N.E.2d 235, 237 (Ind. 2004). As already
noted, the trial court in this case listed four aggravating circumstances to support its sentence: (1)
Prickett was on probation at the time he committed the offense; (2) he had an extensive juvenile
and adult criminal record; (3) Prickett was in need of correctional and rehabilitative treatment
best provided by commitment to a penal institution; and (4) he committed his offense forcibly.
The court gave substantial weight to the fact Prickett was on probation at the time he committed
his offense. It found no mitigating circumstances.

First, the trial court considered Prickett’s criminal history. Prickett’s juvenile record
shows adjudications for incorrigibility, burglary, and theft. His adult record consists of misde-

3
The current, amended version of Indiana Code section 35-50-2-4 refers to an “advisory” sentence. In
2005, an amendment to this statute made in response to Blakely v. Washington, 542 U.S. 296 (2004),
which included a change from “presumptive” sentences to “advisory” sentences, became effective. Reyes
v. State, 848 N.E.2d 1081, 1083 n.1 (Ind. 2006); Weaver v. State, 845 N.E.2d 1066, 1070-72 (Ind. Ct.
App. 2006), trans. denied, 855 N.E.2d 1011 (table). We apply the version of the statute in effect at the
time of Prickett’s sentence and thus refer to his “presumptive” sentence, rather than an “advisory” sen-
tence.

5
meanor convictions for illegal consumption of alcohol as a minor, mischief, and conversion.
Prickett was placed on probation of one year for the latter offense. As such, there was evidence
of a criminal history on which the trial court could have relied. We defer for a moment the dis-
cussion of the weightiness of Prickett’s criminal history as a sentence enhancement factor.

Second, the trial court relied on Prickett’s need for correctional and rehabilitative treat-
ment best provided by commitment to a penal institution. We have found that “[f]or this aggra-
vating circumstance to justify in part an enhanced sentence, it must be understood to mean that
the defendant is in need of correctional and rehabilitative treatment that can best be provided by
a period of incarceration in a penal facility in excess of the presumptive sentence term.” Taylor
v. State, 695 N.E.2d 117, 122 (Ind. 1998) (quoting Mayberry v. State, 670 N.E.2d 1262, 1271
(Ind. 1996)). In sentencing Prickett, the trial court determined that the highly structured and con-
trolled environment of the Department of Correction was of the type “to crystallize in [Prickett’s]
mind and understanding the appropriate ways to relate to other human beings and to children.”
Tr. at 427. This explanation, however, does not make clear how a sentence enhancement of ten
years beyond the presumptive sentence of 30 years relates to and helps achieve the above-stated
goal. Thus, we find that the trial court’s reliance on this factor was improper, as it failed to ex-
plain sufficiently how a sentence enhancement of ten years would better further the correctional
and rehabilitative treatment of Prickett than the presumptive term.

Third, the trial court evaluated Prickett’s alleged use of force to commit the crime and
concluded that force was an aggravating circumstance that warranted a sentence enhancement.
There was conflicting testimony as to whether Prickett or A.M initiated their sexual encounter.
For example, Justin Anderson and Quinn Bailey both testified to witnessing A.M. beginning the
encounter by positioning herself on top of Prickett and initiating intercourse. Conversely, A.M.
testified to having been passive as Prickett penetrated her. Use of force would be a valid aggra-
vating factor for the crime charged here and so the trial court, subject to constitutional con-
straints, 4 could properly rely on it for sentence enhancement. We defer discussion of the
weightiness of the use of force as an aggravator in this case.

4
Among the constitutional considerations that might well constrain a trial court’s reliance on this aggra-
vating circumstance is the mandate of Blakely that certain facts used to support an enhanced sentence be

6
 Fourth and finally, the trial court gave “substantial weight” as an aggravating factor to the
fact that Prickett was on probation when he committed the crime. Prickett had been placed on
probation on February 4, 2001, as part of his sentence for Class A misdemeanor conversion.
Prickett’s probation status was a validly considered aggravating factor. We defer discussion of
the weightiness of Prickett’s probation.

B

We acknowledge the validity of three factors employed by the trial court in enhancing
Prickett’s sentence: Prickett’s criminal history, use of force to commit the crime, and probation
status. However, article VII, section 4, of the Indiana Constitution provides that “[t]he Supreme
Court shall have, in all appeals of criminal cases, the power to . . . review and revise the sentence
imposed.” The contours of that authority are outlined in Indiana Appellate Rule 7(B), which
states “[t]he Court may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of
the offense and the character of the offender.” Upon review of the aggravating factors consid-
ered by the trial court, we find none of them sufficiently weighty to justify a ten-year sentence
enhancement.

First, we consider Prickett’s criminal history. We have previously concluded that the
significance of a defendant’s prior criminal history in determining whether to impose a sentence
enhancement will vary “based on the gravity, nature and number of prior offenses as they relate
to the current offense.” Ruiz v. State, 818 N.E.2d 927, 929 (Ind. 2004) (quoting Wooley v. State,
716 N.E.2d 919, 929 (Ind. 1999)). While recognizing that a defendant’s criminal history can be
a valid aggravating circumstance, we find that it is of little weight in the instant case. None of
Prickett’s prior offenses bears any relation to the crime for which the sentence enhancement was
applied. They are neither similar in gravity nor nature to the current offense. Id. Prickett’s prior
criminal history was neither sufficiently similar to the instant offense nor weighty enough to war-
rant consideration as an aggravating factor in enhancing his Class A felony sentence.

found by a jury beyond a reasonable doubt. Because of the way we resolve this issue, it is unnecessary
for us to address the applicability of Blakely to this aggravating circumstance.

7
 Second, we consider Prickett’s alleged use of force. To show that an act was committed
“forcibly” in this context would require evidence of force beyond that necessary to perform sex-
ual intercourse and commit the crime of which Prickett was convicted. The record is insufficient
to support such a conclusion. The inconsistent testimony of the witnesses in this case prevents a
confident inference that such force was used. Though an evaluation of force as an aggravating
factor was within the trial court’s purview (again, subject to constitutional constraints), the re-
cord here, with its conflicting accounts of force used, does not offer weighty enough evidence of
force to justify a sentence enhancement of ten additional years.

Third and finally, we are left with Prickett’s probationary status at the time he committed
the current offense. Probationary status is a valid aggravating factor, and sufficient to support
sentence enhancement. However, in light of the lack of gravity in Prickett’s criminal history and
the weakness of the evidence supporting Prickett’s use of force to commit the crime, probation-
ary status alone does not support the ten-year sentence enhancement here. See Neff v. State, 849
N.E.2d 556, 563 (Ind. 2006) (holding probationary status aggravator did not affect sentence cal-
culation).

Our analysis of these aggravating circumstances is such that they are not sufficiently
weighty to warrant a sentence above the presumptive for a Class A felony. While we acknowl-
edge that even one valid aggravating factor can, depending on the circumstances, be sufficient to
enhance a presumptive sentence, Sherwood v. State, 702 N.E.2d 694, 699 (Ind. 1998), we never-
theless find that Prickett’s enhancement was inappropriate in light of the nature of the offense
and the character of the offender. We conclude that the trial court gave too much weight to these
aggravating factors and order Prickett’s sentence reduced to the presumptive term of 30 years.

C

Prickett also contends that his sentence is unconstitutional, on grounds that it exceeds the
presumptive sentence established by the Legislature and was based upon aggravating factors not
found by a jury. Prickett’s argument on this point is a direct invocation of the United States Su-
preme Court’s decision in Blakely v. Washington, 542 U.S. 296, 301 (2004), which held that,

8
with certain exceptions, facts that are used to support an enhanced sentence must be found by a
jury beyond a reasonable doubt. Because we hold that Prickett’s sentence be reduced from 40
years to the statutory presumptive term of 30 years on the basis of our constitutional review and
revise authority for the reasons above, we do not address his Blakely claim.

III

As part of his sentence, the trial court also ordered Prickett to pay restitution to his victim
and register as a sex offender. Prickett contends the trial court’s actions in this regard were im-
proper, as “there was no independent finding by a jury beyond a reasonable doubt that Prickett’s
conduct met the requirements to merit the additional penalty of restitution and sexual offender
registry.” Appellant’s Br. at 15. Both of these questions are issues of first impression for this
court and we address each in turn.

A

Indiana Code section 35-50-5-3 authorizes trial courts to order a defendant “to make res-
titution to the victim of the crime, the victim’s estate, or the family of a victim who is deceased.”
It may fashion its order “upon a consideration of: . . . medical and hospital costs incurred by the
victim . . . as a result of the crime; [and] the cost of medical laboratory tests to determine if the
crime has caused the victim to contract a disease or other medical condition.” I.C. § 35-50-5-
3(a)(2) & (3) (2004). Prickett was ordered by the trial court to pay $732.00 to his victim for un-
covered medical expenses she incurred as result of his crime.

A small number of federal courts have addressed the issue of whether restitution orders
are affected by Blakely. At this point they have concluded they are not. See United States v.
Reifler, 446 F.3d 65, 113-20 (2nd Cir. 2006) (finding that Blakely does not affect restitution or-
ders after a survey of other circuits’s holdings in similar cases); United States v. Gordon, 393
F.3d 1044, 1051 & n.2 (9th Cir. 2004) (quoting United States v. DeGeorge, 380 F.3d 1203, 1221
(9th Cir. 2004) to hold that a “restitution order made by the district court . . . is unaffected by
Blakely.”), cert. denied, 126 S. Ct. 472 (2005); DeGeorge, 380 F.3d at 1221 (quoting United

9
States v. Baker, 25 F.3d 1452, 1456 (9th Cir. 1994), to hold that “[r]estitution determinations . . .
are quite different from sentencing determinations under the Sentencing Guidelines.”). Their
reasoning has been that “historically judges [have] imposed restitution.” United States v. Visi-
naiz, 344 F. Supp. 2d 1310, 1323 (D. Utah 2004), aff’d, 428 F.3d 1300 (10th Cir. 2005), cert.
denied, 126 S. Ct. 1101 (2006). They conclude that because the scope of the Framers’ concep-
tion of the Sixth Amendment “did not embrace restitution orders, Blakely does not require a jury
trial on restitution.” Id. We follow this reasoning and find that the trial court’s order of restitu-
tion for Prickett did not violate the requirements of Blakely, as they are inapplicable in this con-
text.

B

We reach the same conclusion with respect to the sex offender registry. Indiana Code
sections 5-2-12-4 through 5 govern who must register as a sex offender within the state. An “of-
fender” is defined under the statute as any person convicted of any of the sex and violent of-
fenses the statute lists, including child molesting. See I.C. § 5-2-12-4(a)(1) (2004). Any sex of-
fender who resides in Indiana and has been convicted of any of the enumerated acts of section 5-
2-12-4 is then required to register. See I.C. § 5-2-12-5(a)(1) (2004). Thus, a sex offender’s
submission to registration is by virtue of being found guilty by a jury of a sex offense. It is based
upon the fact of the conviction. No additional finding is necessary from the jury or the court un-
der those circumstances. See Doe v. O’Connor, 790 N.E.2d 985, 986 (Ind. 2003).

Conclusion

We affirm the trial court’s decision with respect to Prickett’s conviction and its order of
restitution and to register as a sex offender. We, however, remand the issue of Prickett’s sen-
tence to the trial court with instructions to issue an amended sentencing order and to issue or
make any other documents or docket entries necessary to impose a sentence of 30 years, without
a hearing.

10
Shepard, C.J., and Dickson and Rucker, JJ., concur. Boehm, J., concurs in result with separate
opinion.

11
Boehm, J., concurring in result.

I agree with Prickett and the majority that Prickett’s criminal history and his resulting
probation are not enough to enhance his sentence. However, I would find the use of force to be
an aggravating circumstance justifying the sentence imposed by the trial court. Although the
majority finds the evidence not “weighty enough” based on the presence of inconsistent testi-
mony, I do not believe it is appropriate for an appellate court to disregard the trial court’s conclu-
sion as to factual issues bearing on sentencing. The trial court found that this crime was commit-
ted by use of force.
Although I believe the trial court is in the best position to evaluate the credibility of these
conflicting accounts, I agree that the sentence should be reduced for a different reason: the use of
force was not found by a jury beyond a reasonable doubt as required by Blakely v. Washington,
542 U.S. 296 (2004). See Smylie v. State, 823 N.E.2d 679 (Ind. 2005). But for Blakely, I would
not agree that Prickett’s sentence must be reduced. However, after Blakely, I believe that
Prickett’s enhanced sentence violates the Federal Constitution. I therefore concur in the major-
ity’s conclusion that Prickett’s sentence should be reduced to the presumptive thirty-year term.

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