ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Kopinski Steve Carter
South Bend, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
In the
Indiana Supreme Court
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No. 71S03-0507-CR-322
AARON ANTHONY JOHNSON,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the St. Joseph Superior Court, No. 71D02-0304-MR-00015
The Honorable John M. Marnocha, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 71A03-0402-CR-102
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July 19, 2005
Shepard, Chief Justice.
Appellant Aaron Johnson received enhanced and consecutive sentences for a series of
particularly brutal crimes. The Court of Appeals held that he had waived a claim under Blakely
v. Washington. We examine his claim on the merits and affirm.
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Facts and Procedural History
On April 24, 2003, at around 11 p.m., Johnson, Terrease Nesbitt, and Antonio Pettrie set
out to rob Brian Chambers when he left work in South Bend. As they pursued their mark,
Chambers dropped to the ground and folded up, trying to hold on to his wallet. His pursuers
kicked him in the ribs, and Chambers then gave it up.
Later that night, the same three men and Sylvester Dingle picked up twenty-year-old M.
B. in their SUV as she walked home from a friend’s house. Over the course of the next several
hours and at various locations, the four men repeatedly raped M.B. and forced her to perform
oral sex on them. At about 2:30 a.m., they stopped in a park, and Nesbitt shot both Johnson and
Dingle. Pettrie then shot M.B. Dingle died as the result of multiple gun shot wounds.
The State charged Johnson with: robbery, a class C felony; rape, a class B felony;
criminal deviate conduct, a class B felony; and felony murder. The jury found him guilty on the
first three counts.
In sentencing Johnson, the trial court found the following aggravating circumstances: 1)
the nature and circumstances of the offense; 2) Johnson was on probation at the time of the
crimes; and 3) Johnson’s adult criminal history (an Illinois felony conviction for possession of a
controlled substance in 1996 and another in 1999, an 2003 misdemeanor conviction for resisting
arrest in Indiana, and a 2003 misdemeanor conviction for battery in Indiana). (Appellant’s App.
at 233-34, Tr. at 721-23.) It found Johnson’s remorse and the fact that he was shot during the
crimes as mitigating. After concluding that the aggravators outweighed the mitigators, the court
sentenced Johnson to eight years for robbery, twenty years for rape, and twenty years for
criminal deviate conduct, all to be served consecutively.
The Court of Appeals affirmed, holding among other things that Johnson had waived any
Blakely claim. Johnson v. State, No. 71A03-0402-CR-102, slip op. at 20 n.7, 23 (Ind. Ct. App.
Nov. 5, 2004)vacated. We grant transfer and hold that Johnson preserved a Blakely claim by
challenging the appropriateness of his sentence in his initial appellate brief and invoking Blakely
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on rehearing. See Smylie v. State, 823 N.E.2d 679, 690-91 (Ind. 2005). We summarily affirm
the Court of Appeals’ disposition of the various claims Johnson raised about his conviction, Ind.
Appellate Rule 58(A), and take up his sentencing issue.
For Blakely purposes, there are at least four proper ways to enhance a sentence with
aggravating circumstances: 1) a prior conviction; 2) a fact found by a jury beyond a reasonable
doubt; 3) admissions by the defendant; or 4) during a guilty plea where a defendant has waived
Apprendi rights and stipulated to facts or consented to judicial fact-finding. Trusley v. State, __
N.E.2d __, 2005 WL 1415414, at *2 (Ind. June 17, 2005). See also Blakely v. Washington, 542
U.S. __, 124 S.Ct. 2531, 2537, 2541 (2004); United States v. Booker, 543 U.S.__, 125 S.Ct. 738,
756 (2005).
The first aggravator found by the trial court, the nature and circumstances of the crimes,
falls into the third category. In finding this aggravator, the trial court relied on specific facts,
such as M.B. was sexually assaulted over an extended period of time at different places, a
weapon was used, and threats were made to kill her and throw her in a river. (Tr. at 721.)
Johnson admitted each of these facts in his trial testimony. 1
The third aggravator, Johnson’s adult criminal history, is of course a proper consideration
for the trial court. While we have yet to determine whether a trial court finding that a defendant
was on probation at the time of an offense must first be found by a jury to be used for enhancing
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“I didn’t even get a block away when Nesbitt was trying to take off her shirt and he said . . . ‘I’m going
to kill this broad right now.’” (Tr. at 593.) “They started raping her. . . . They led me to like three or
four different houses.” (Tr. at 595.) “I seen it [the gun] when Nesbitt told Pettrie, ‘Man, give me the
pistol, I’m going to kill this broad right now.’” (Tr. at 601.)
[Prosecutor:] You drove them to Howard Park even knowing that these guys
were in the midst of raping this girl?
[Johnson:] Knowing that they were going to try to throw her in the river and kill
her too, yeah. I was trying to keep -- it wasn’t no plan to go to Howard Park,
they led me to Howard Park. I didn’t know that we was going to a park.
[Prosecution:] And you followed their instructions.
[Johnson:] And they got a gun, yes, ma’am, I did.
(Tr. at 635).
Of course, Johnson was attempting to deflect culpability in admitting these facts. While it is a
jury determination as to what weight to give this testimony in determining guilt for the underlying crimes,
Johnson’s factual admissions are still relevant considerations for the court in finding aggravating
circumstances.
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a sentence, it can certainly be used to support consecutive sentences, Smylie 823 N.E.2d 686,
and we consider it here only for that purpose.
The trial court imposed the maximum sentence for each of the three felonies and ran
them consecutively for a total of forty-eight years. Maximum sentences are reserved for the
worst offenders and offenses. Payton v. State, 818 N.E.2d 493, 498 (Ind. Ct. App. 2004). While
Johnson’s criminal history is not as extensive as many others we have seen, we find a few factors
of import: 1) both of Johnson’s misdemeanors were crimes of violence or physical force, thus
making them significant to the present crimes; 2) Johnson had accumulated this history at the
young age of twenty-five; and 3) the particularly heinous nature and circumstances of these
crimes. We think the sentence was appropriate to the offense and the offender.
Conclusion
We affirm the trial court.
Dickson, Sullivan, Boehm, Rucker, JJ., concur.
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