ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Mary Joan Hamilton Cynthia L. Ploughe
Deputy Public Defender Deputy Attorney General
Bloomington, IN Indianapolis, IN
In the
Indiana Supreme Court
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No. 53S01-0506-CR-278
ROSE M. SOWDERS,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Monroe Circuit Court, No. 53C04-0208-MR-00787
The Honorable Elizabeth N. Mann, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 53A01-0310-CR-00404
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June 16, 2005
SHEPARD, Chief Justice.
Appellant Rose M. Sowders received three consecutive enhanced sentences for murder.
While the aggravating circumstances warranted ordering consecutive sentences, using them to
enhance the individual counts violates Blakely v. Washington. We remand for possible further
consideration.
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Facts and Procedural History
Rose M. Sowders pled guilty but mentally ill to three counts of murder. The trial court
found a total of four aggravating circumstances, including: 1) a substantial level of planning and
aforethought; 2) failure to accept responsibility; 3) a lack of remorse; and 4) certain
circumstances of the crimes (shots fired at close range, defenseless victims, the young age of one
of the victims, a demonstrated level of callousness, and a fair amount of time for reflection
between murders). The court found two mitigating circumstances -- no criminal history and
mental illness. It sentenced Sowders to sixty-two years for count I, fifty-seven years for count II,
and fifty-seven years for count III, all to run consecutively. The fixed term presumptive sentence
for murder is fifty-five years. Ind. Code Ann. § 35-50-2-3(a) (West 2004).
Analysis
Sowders preserved a Blakely claim in her initial appellate brief by challenging her
sentence and arguing Blakely on rehearing. See Smylie v. State, 823 N.E.2d 679, 689-91 (Ind.
2005); (Appellant’s Br. at 9-14). The Court of Appeals affirmed Sowders’ sentence, Sowders v.
State, No. 53A01-0310-CR-00404 (Ind. Ct. App. July 30, 2004), and then denied her petition for
rehearing. We grant transfer to address Sowders’ Blakely claim, but summarily affirm the Court
of Appeals’ disposition of her claim about certain mitigators. Ind. Appellate Rule 58(A).
Sowders’ enhanced sentences were based on various aggravating factors that were neither
prior convictions, nor reflected in the jury’s verdict, nor admitted by Sowders. Also, Sowders
did not stipulate to the relevant facts or consent to judicial factfinding when she pled guilty. The
enhancements were thus improper. Blakely, 542 U.S. at __, 124 S.Ct. at 2536-37, 2541; United
States v. Booker, 543 U.S. __, 125 S.Ct. 738, 756 (2005).
The consecutive sentences, however, do not violate Sowders’ Sixth Amendment right to
trial by jury. See Smylie, 823 N.E.2d at 686. The aggravating circumstances the court found
were adequate to support consecutive sentences.
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Conclusion
We vacate the trial court’s enhancement of the sentences for each crime and remand with
instructions to impose three consecutive sentences of fifty-five years unless the State elects to
prove aggravating circumstances before a jury.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs and dissents with separate opinion.
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Sullivan, Justice, concurring and dissenting.
I agree with the Court that Sowders’s sentence enhancements are not permitted under
Blakely. I respectfully dissent, however, from the Court’s decision to remand the case to the trial
court with instructions to impose an executed sentence of 165 years (with the potential of even
more if the State elects to prove aggravating circumstances before a jury).
The Indiana Constitution provides, “The Supreme Court shall have, in all appeals of
criminal cases, the power to . . . review and revise the sentence imposed.” Ind. Const. art. VII, §
4. Pursuant to this authority, we have provided by rule that “[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.” Ind. Appellate Rule 7(B).
I believe that a sentence in the order of magnitude sanctioned by the Court here (at least
165 years, with the potential of even more) is not appropriate in light of the nature of this offense
and the character of this offender. I would exercise our authority to review and revise sentences
to reduce the sentence imposed in this case.
The multiple murders committed here are aggravating circumstances entitled to weight in
the highest range. But I also believe that there are mitigating circumstances here entitled to
significant weight.
First, Sowders had no criminal history whatsoever. I have previously expressed the view
that absence of criminal history is the weightiest of all mitigating circumstances. Prowell v.
State, 687 N.E.2d 563, 572 (Ind. 1997) (Sullivan, J., dissenting), post-conviction relief granted,
741 N.E.2d 704 (Ind. 2001).
Second, a trial court’s judgment of guilty but mentally ill has regularly been given
mitigating weight by this Court. See, e.g., Crawford v. State, 770 N.E.2d 775, 783 (Ind. 2002)
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(reduction of defendant’s 65-year sentence to the presumptive 55 years in part due to the
“significant mitigating circumstance” of defendant’s mental illness); Weeks v. State, 697 N.E.2d
28, 31 (Ind. 1998) (reduction of defendant’s 60-year sentence to the presumptive sentence of 50
years due to defendant’s mental illness); Archer v. State, 689 N.E.2d 678, 685-86 (Ind. 1997)
(defendant’s long-standing mental illness should have been considered as a mitigator and
therefore warranted a reduction in defendant’s total sentence); Gambill v. State, 675 N.E.2d 668,
677-78 (Ind. 1996) (defendant’s mental illness was a substantial mitigator calling for the
imposition of the presumptive sentence); Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind. 1996)
(finding an abuse of discretion where the trial court failed to consider defendant’s mental illness
as a mitigator; remanded for imposition of presumptive sentence); Barany v. State, 658 N.E.2d
60, 67 (Ind. 1995) (finding a relationship between defendant’s mental illness and the commission
of the crime; remanded for imposition of presumptive sentence).
Third, a guilty plea demonstrates a defendant’s acceptance of responsibility for the crime.
Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995). A guilty plea further extends a benefit to the
State and the victim or the victim’s family by avoiding a full-blown trial. Id. Thus, a defendant
who pleads guilty deserves to have some mitigating weight extended to the guilty plea in return.
Id. Accord, Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995); Hardebeck v. State, 656 N.E.2d
486, 493 (Ind. Ct. App. 1995), trans. denied.
Based on these considerations, I would reduce the sentence imposed in this case.
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