Ryle v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Steve Carter
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Ellen H. Meilander
Deputy Attorney General
Indianapolis, Indiana

In the
Indiana Supreme Court
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No. 49S02-0505-CR-207

KENNA D. RYLE,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________

Appeal from the Marion Superior Court, No. 49G03-0303-MR-035666
The Honorable Sheila Carlisle, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0405-CR-423
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December 13, 2005

Shepard, Chief Justice.

When the trial court ordered an enhanced sentence for appellant Kenna D. Ryle’s
manslaughter conviction, it cited his four juvenile adjudications and the fact that he was on
probation when he committed the crime. Our analysis of Apprendi v. New Jersey leads us to
conclude that these factors are proper sentencing considerations for a trial judge and need not be
submitted to a jury.

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 Facts and Procedural History

Kenna Ryle shot and killed Maurice Sanders at an apartment complex in Indianapolis on
February 25, 2003. The State charged Ryle with murder, unlawful possession of a firearm by a
serious violent felon, and carrying a handgun without a license. The State dismissed the two
firearm offenses, and the jury found Ryle guilty of the lesser-included offense of voluntary
manslaughter, a class A felony. IND. CODE ANN. § 35-42-1-3 (West 2004).

In sentencing Ryle, the trial court allotted minimal mitigating weight to the fact that he
was only twenty-two years old. It found two aggravating circumstances: Ryle’s criminal history
and the fact that he was on probation at the time he killed Sanders. Ryle’s criminal history
included four juvenile adjudications -- two offenses that would have been burglary had Ryle
been an adult, one of battery, and one of carrying a handgun without a license. His history also
revealed two adult convictions -- one for possession of cocaine and a firearm, a class C felony,
and one for conspiracy to commit dealing in cocaine, a class A felony. On April 23, 2004, the
court sentenced Ryle to forty-five years executed time, fifteen years over the presumptive term.
IND. CODE ANN. § 35-50-2-4 (West 2004).

The Court of Appeals affirmed Ryle’s enhanced sentence, rejecting his argument that the
trial court improperly considered the four juvenile adjudications and his probation status. Ryle v.
State, 819 N.E.2d 119, 123 (Ind. Ct. App. 2004) vacated. We granted transfer to address the
questions related to Blakely v. Washington 1 and Apprendi v. New Jersey. 2

I. Juvenile Adjudications

1
542 U.S. 296 (2004).
2
530 U.S. 466 (2000).

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 Since nearly the beginning of our present criminal code, Indiana courts have recognized
that criminal behavior reflected in delinquent adjudications can serve as the basis for enhancing
an adult criminal sentence. See, e.g., Simms v. State, 421 N.E.2d 698, 703-04 (Ind. Ct. App.
1981). We have emphasized that it is the criminal behavior reflected in earlier proceedings
rather than the adjudications that is the proper proof of a prior history of criminal behavior.
Jordan v. State, 512 N.E.2d 407, 410 (Ind. 1987). Ryle challenges the trial court’s use of four
prior juvenile adjudications to support the sentencing enhancement, arguing that juvenile
adjudications are not prior convictions for Apprendi purposes. He says that whether these
adjudications exist or not should be decided by a jury.

The federal circuits are divided over whether juvenile adjudications are an exception to
the Apprendi requirement that all facts used to enhance a sentence over the statutory maximum
must be found by a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490. The Third,
Eighth, and Eleventh Circuits have held that they are. United States v. Burge, 407 F.3d 1183,
1187-91 (11th Cir. 2005)(defendant received all constitutional protections due in his prior
juvenile adjudication), cert. denied, 126 S.Ct. 551 (2005); United States v. Jones, 332 F.3d 688,
694-96 (3d Cir. 2003)(prior non-jury juvenile adjudication with all constitutionally-required
procedural safeguards is a prior conviction for Apprendi purposes), cert. denied, 540 U.S. 1150
(2004); United States v. Smalley, 294 F.3d 1030, 1031-33 (8th Cir. 2003)(district court justified
in considering juvenile adjudications at sentencing), cert. denied, 537 U.S. 1114 (2003). The
Ninth Circuit held contra, concluding that juvenile adjudications are not the equivalent of prior
convictions. United States v. Tighe, 266 F.3d 1187, 1191-95 (9th Cir. 2001)(district court
violated Apprendi in counting Tighe’s previous juvenile adjudication as a predicate offense
under Armed Career Criminal Act). Our analysis of Apprendi leads us to conclude that the
Third, Eighth, and Eleventh Circuits are right.

The Apprendi Court explained the reason for a prior conviction exception by saying that,

there is a vast difference between accepting the validity of a prior
judgment of conviction entered in a proceeding in which the
defendant had the right to a jury trial and the right to require the
prosecutor to prove guilt beyond a reasonable doubt, and allowing
the judge to find the required fact under a lesser standard of proof.

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Apprendi, 530 U.S. at 496. Juvenile adjudications were not specifically addressed in Apprendi,
and unfortunately they “lie in between these two poles,” because they do not provide a jury trial
right but do require proof beyond a reasonable doubt. Smalley, 294 F.3d at 1032.

Indiana’s juvenile code guarantees respondents the right to notice, the right to a speedy
trial, the right to confront and cross-examine witnesses, the right to compulsory process to obtain
witnesses and evidence, the right to counsel, the right against self-incrimination, and the right to
require the State to prove all allegations beyond a reasonable doubt. IND. CODE ANN. § 31-37-
12-5 (West 2004). As in most other states, Indiana juvenile proceedings do not afford trial by
jury, but of course the U.S. Supreme Court has rejected the claim that the Fourteenth and Sixth
Amendments mandate jury trials in juvenile matters, holding that the special ideal of the juvenile
courts produces fair, equitable, and reliable results. McKeiver v. Pennsylvania, 403 U.S. 528,
547 (1976). 3

While Apprendi does specifically mention the right to a jury trial, the Court has made it
“crystal clear” that the decisions that it relied on in making prior convictions a sentencing
exception “turned heavily” on the fact that the additional sentences were based on recidivism,
which may well be the most common basis for sentencing enhancements. Apprendi, 530 U.S. at
488.

The Apprendi Court explained the holding of Almendarez-Torres v. United States 4 that
prior convictions need not be charged in an indictment, by saying that “the certainty that
procedural safeguards attached to any ‘fact’ of prior conviction” mitigates Sixth Amendment

3
Some studies suggest that judges are more likely than juries to favor police testimony and that juries’
give-and-take format and diverse backgrounds enhance reliability. Constitutional Law -- Right to Jury
Trial -- Eighth Circuit Holds an Adjudication of Juvenile Delinquency to Be a “Prior Conviction” for the
Purpose of Sentence Enhancement at a Subsequent Criminal Proceeding. -- United States v. Smalley, 294
F.3D 1030 (8th Cir. 2002), 116 HARV. L. REV. 705, 709 (2002). To be sure, the juvenile court and adult
court have their shortcomings, but we think the modern work of juvenile judges and court staff warrants
the optimism Justice Blackman expressed in McKeiver.
4
523 U.S. 224, 226-27 (1998). Justice Thomas observed that a majority of the Court had declared itself
in favor of overruling Almendarez-Torres. Shepard v. U.S., 544 U.S. __, 125 S.Ct. 1254, 1264 (2005)
(Thomas, J., concurring). We take such a declaration to be a matter for the court in Washington D.C. and
not for us. Roper v. Simmons, 543 U.S. 551, __, 125 S.Ct. 1183, 1209 (2005) (O'Connor, J., dissenting).

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concerns. Id. The main concern was whether the prior conviction’s procedural safeguards
ensured a reliable result, not that there had to be a right to a jury trial. Like that of most states,
Indiana’s code regards juvenile adjudications as reliable enough to form the basis for
confinement of a juvenile delinquent or for ordering a wardship. IND. CODE ANN. § 31-37-19-6
(West 2004). Similarly, a misdemeanor conviction is a conviction nonetheless despite the fact
that there is no Sixth Amendment jury trial right for misdemeanor offenses carrying a maximum
prison term of six months or less. Lewis v. United States, 518 U.S. 322, 325-26 (1996).

Other than treating juvenile adjudications as exceptions, we perceive two other options.
One would be to retry juvenile cases anew in front of juries. As a practical matter, requiring a
jury to decide whether a defendant was a juvenile delinquent beyond a reasonable doubt by
hearing stale evidence no more ensures reliability than allowing the trial judge to make a
decision based upon a properly admitted record of conviction. The other would be to conduct
jury trials in which the jury would be asked to decide whether the earlier court found the juvenile
guilty or not guilty. A decision to require the jury to determine the “fact” of prior juvenile
adjudications would result in an untold number of defendants clogging the trial courts on
remand, granted they properly preserved a sentencing claim on appeal. Smylie v. State, 823
N.E.2d 679, 688-89 (Ind. 2005).

II. Committing a Crime While on Probation

The trial court enhanced Ryle’s sentence partly on the basis that he was on probation
when he committed the present offense, a fact reflected in the presentence investigation report.
The question is whether this fact needs to be proven before a jury.

The Indiana Code requires that judges consider a presentence investigation report
prepared by the court’s probation officer when sentencing a defendant convicted of a felony.
IND. CODE ANN. § 35-38-1-8 (West 2004). The code requires that this report contain information
on the present crime, the impact of the crime on the victim (including statements submitted by
the victim), the convicted person’s criminal history, social history, employment history, family

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situation, economic status, education, and personal habits, and any other matters the court
requires. IND. CODE ANN. §§ 35-38-1-8, 9(b)-(c) (West 2004). The court provides the
completed report to the defendant and the defendant’s lawyer, who have the opportunity to
contest its accuracy. IND. CODE ANN. § 35-38-1-12 (West 2004). 5

Recognizing the important role presentence investigation reports play in criminal
sentencing, the General Assembly has obliged the Board of Directors of the Judicial Conference
of Indiana to adopt minimum standards for presentence investigation reports. IND. CODE ANN. §
11-13-1-8(b)(4) (West 2004 & Supp. 2004). 6 Pursuant to this mandate, the board of the Judicial
Conference adopted a standard presentence investigation report that included all of the
information specified in section 35-38-1-9(b)-(c); it also required all probation officers to adhere
strictly to this format. INDIANA JUDICIAL CENTER, STANDARD INDIANA PRESENTENCE
INVESTIGATION REPORT 1-2 (1993). The board provided specific and thorough instructions to
probation officers for acquiring and reporting the required information. Id. at 9-19.

Probation in Indiana is a court function, and probation officers are trained, tested, hired,
and supervised directly by the judiciary. Before probation officers serve, they must pass a test
covering juvenile law, criminal sentencing (including presentence reports), and general probation
matters. They must then attend a training program conducted by the Judicial Conference during
their first year of employment, and complete twelve hours of continuing education during each
5
Recent Court of Appeals opinions have held that a judge can enhance a defendant’s sentence without a
jury determination of probationary status because probation is derivative of criminal history and/or a
defendant admitted to being on probation by not objecting to the presentence investigation report.
Alexander v. State, 837 N.E.2d 552, 556-57 (Ind. Ct. App. 2005); Devries v. State, 833 N.E.2d 511, 515
(Ind. Ct. App. 2005) trans. denied; Abney v. State, 822 N.E.2d 260, 268 (Ind. Ct. App. 2005) trans.
denied; Ryle v. State, 819 N.E.2d 119, 122-23 (Ind. Ct. App. 2004) vacated; Bledsoe v. State, 815 N.E.2d
507, 508 (Ind. Ct. App. 2004), trans. denied. To the extent that these decisions advance this reasoning,
they are disapproved.
Probation stands on its own as an aggravator. While a criminal history aggravates a subsequent
crime because of recidivism, probation further aggravates a subsequent crime because the defendant was
still serving a court-imposed sentence.
Moreover, using a defendant’s failure to object to a presentence report to establish an admission
to the accuracy of the report implicates the defendant’s Fifth Amendment right against self-incrimination.
This also explains why Ryle did not admit to the juvenile adjudications.
6
The Judicial Conference of Indiana, consisting of the state’s judicial officers, acts as administrator for
probationers. It also promotes the improved operation of Indiana’s judicial system, continuing education
of judges, and a better public understanding of the judiciary. IND. CODE ANN. § 33-38-9-6 (West 2004).

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subsequent year. INDIANA JUDICIAL CENTER, INDIANA PROBATION STANDARDS 10-11 (2001).
When they recite a defendant’s criminal history and probation status in a presentence
investigation report, probation officers must follow the instructions provided by the Judicial
Conference of Indiana, which direct officers to accurately list sources of information.
STANDARD INDIANA PRESENTENCE INVESTIGATION REPORT at 9-11.

These requirements governing probation officers and their presentation of information to
the sentencing court ensure the reliability of their work product. Thus, probation officers can
properly contribute to the character and outcome of prior convictions by researching the judicial
documents sanctioned in Shepard v. United States, 544 U.S. __, 125 S.Ct. 1254, 1259-60 (2005).

Shepard pled guilty to possession of a firearm by a felon. The Armed Career Criminal
Act mandates a minimum fifteen-year sentence for those possessing a firearm after three prior
convictions for serious violent felonies. 18 U.S.C. § 924(e) (2000 ed. & Supp. II). According to
the Act, burglary is a violent felony only if committed in a building or enclosed space. To prove
that Shepard’s prior state convictions for burglary were committed in a building or enclosed
space (thus violent felonies qualifying Shepard for the mandatory minimum) the Government
submitted police reports and complaint applications that represented the predicates of the
burglary prosecution against Shepard in the courts of Massachusetts. Shepard, 544 U.S. at__,
125 S.Ct. at 1258.

The Court had earlier held that such determinations could be made only by reference to
the statutory definition of the earlier offense, or to the “charging paper and jury instructions.”
Taylor v. United States, 495 U.S. 575, 602 (1990). The Court considered the Government’s
argument as an attempt to go “beyond conclusive records made or used in adjudicating guilt and
look[] to documents submitted to lower courts even prior to charges.” Shepard, 544 U.S. at __,
125 S.Ct. at 1260. It held that a sentencing court could not consider these documents to establish
facts that support sentencing enhancements. Id. at __, 1257. It noted the earlier concern in
Taylor was a “demand for certainty.” Id. at __, 1260. However, it reaffirmed its holding in
Taylor that when a later court determines the character of a prior conviction, it can examine the
“statutory definition, charging document, written plea agreement, transcript of plea colloquy, and

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any explicit factual finding by the trial judge to which the defendant assented,” or “some
comparable judicial record of this information.” Id. at __, 1257, 1263.

Police reports and complaint applications run afoul of Apprendi, said the Court, because
“[w]hile the disputed fact [in the report] can be described as a fact about a prior conviction, it is
too far removed from the conclusive significance of a prior judicial record, and too much like the
findings subject to . . . Apprendi, to say that Almendarez-Torres clearly authorizes a judge to
resolve the dispute.” Id. at __, 1262.

But such disputed documents were not used here. The trial court’s finding that Ryle was
on probation at the time of the present offense rested on prior judicial records as reflected in the
presentence investigation report prepared by the probation officer. (Appellant’s App. at 136-38.)

The probation officer compiled information on Ryle’s criminal history and probation
status for the presentence investigation report in this case by referring to case files from the
courts in which Ryle was convicted. (Appellant’s App. at 136.) The report indicated that Ryle
was convicted of possession of cocaine and a firearm, and conspiracy to commit dealing cocaine
in 2000. (Appellant’s App. at 137.) Ryle was to serve two years of probation after his release
from prison for these convictions. (Id.) According to the Department of Correction documents,
his release date was January 20, 2003, just five weeks before the present offense. (State’s
Sentencing Ex. 1.) A probation violation notice was filed in the 2000 case. (Appellant’s App. at
138.) The presentence investigation report relies on “judicial record[s]” that guarantee the
conclusive significance that is the focus of Apprendi. Shepard, 544 U.S. at __, 125 S.Ct. at
1263.

Conclusion

We affirm Ryle’s sentence.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

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