ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kenneth R. Martin Steve Carter
Goshen, IN Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, IN
In the
Indiana Supreme Court
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No. 20S04-0506-CR-00277
LISA C. MORGAN,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Elkhart Circuit Court, No. 20C01-0309-FA-00169
The Honorable Terry C. Shewmaker, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 20A04-0404-CR-00239
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June 15, 2005
Shepard, Chief Justice.
Lisa Morgan has appealed her sentence for dealing methamphetamine on a variety of
grounds, including an adequately preserved claim under Blakely v. Washington, 542 U.S. __,
124 S.Ct. 2531 (2004). Her appeal produces three conclusions about post-Blakely sentencing
under our then existing code: 1) aggravators that may be found by a judge alone must still be
weighed to determine whether they warrant sentence enhancement; 2) sentence enhancements
may rest upon facts acknowledged by the defendant; and 3) observations a court makes about
such factors may reflect on the weight of acknowledged facts or prior convictions but are not
themselves separate aggravators.
Facts and Procedural History
On September 23, 2003, Lisa Morgan was arrested while attempting to arrange the sale of
methamphetamine to an undercover police officer. Following her apprehension, police searched
Morgan and her vehicle and uncovered thirty-eight grams of methamphetamine, several items of
drug paraphernalia, and a drug ledger.
The State charged Morgan for possession of methamphetamine in excess of three grams
with intent to deliver, a class A felony. Ind. Code Ann. § 35-48-4-1 (West 2004). Morgan
eventually pled guilty to the charge pursuant to a plea agreement that dismissed an unrelated
charge of theft pending against her.
At a sentencing hearing on April 1, 2004, the court found four aggravating
circumstances: 1) Morgan had a prior class B felony conviction for delivery of a controlled
substance; 2) she committed the offense while she was on probation; 3) she intended to sell the
methamphetamine for profit; and 4) that previous punishments had failed to rehabilitate Morgan.
The trial court also found five mitigating factors: 1) Morgan’s age; 2) her willingness to accept
responsibility for her conduct; 3) Morgan’s history of psychological issues; 4) her drug
addiction; and 5) the existence of family support.
After concluding that the aggravating factors outweighed the mitigating factors, the court
added five years to the standard fixed term of imprisonment, for a total penalty of thirty-five
years.
Morgan appealed her sentence. In an amended brief, Morgan advanced two contentions.
First, she claimed that the sentencing court considered improper aggravators and wrongly
balanced the aggravating and mitigating factors. Second, she argued that U.S. Supreme Court’s
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ruling in Blakely v. Washington required her sentence be set aside because the aggravators were
not found by a jury. (Appellant’s Am. Br. at 5.)
The Court of Appeals rejected both of Morgan’s arguments. Morgan v. State, No.
20A04-0404-CR-00239, slip op. at 4-9 (Ind. Ct. App. Dec. 7, 2004). We grant transfer.
Framework of the Sentencing Claim
Morgan properly preserved her Blakely claim by challenging her sentence in her initial
brief, even though she did not specifically mention Blakely until the filing of an amended brief.
See Smylie v. State, 823 N.E.2d 679, 689-91 (Ind. 2005).
At the core of both of Morgan’s arguments is a challenge to the propriety of the
aggravators. The trial court found four: 1) Morgan’s prior conviction; 2) that she committed the
offense while she was on probation; 3) that she intended to sell the methamphetamine for profit;
and 4) that previous punishments had failed to rehabilitate Morgan. Morgan argues that the last
three of these aggravators were improperly considered either because they should have been
submitted to a jury, or because the trial court improperly applied and weighed legitimate
aggravators. (Pet. to Transfer at 4-5.)
We note that the State readily conceded that the third aggravator, that Morgan intended to
sell the drugs for profit, was improper (Appellee’s Am. Br. at 5.) and we agree that the trial court
erred in considering this as an aggravating circumstance.
I. Not All Aggravtors/Mitigators Weigh the Same
Morgan concedes that the trial court could find that her prior conviction for delivery of a
controlled substance was an aggravating circumstance without submitting the question to a jury,
consistent with the Sixth Amendment. Her concession is based on the fact that the general Sixth
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Amendment rule that “any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury” contains an exception for “the fact of a prior
conviction.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). See also Smith v. State, 825
N.E.2d 783 (Ind. 2005). However, Morgan asserts that it is “ questionable, . . . , as to whether
[her] criminal record, standing alone, [is] a sufficient aggravator to support any enhancement
above the presumptive term.” (Appellant’s Am. Br. at 17.)
While a sentence enhanced because it is based on the fact of a prior conviction does not
violate the Sixth Amendment, the question of whether the sentence should be enhanced and to
what extent turns on the weight of an individual’s criminal history. This weight is measured by
the number of prior convictions and their seriousness, by their proximity or distance from the
present offense, and by any similarity or dissimilarity to the present offense that might reflect on
a defendant’s culpability.
We Indiana judges often recite that “a single aggravator is sufficient to support an
enhanced sentence.” While there are many instances in which a single aggravator is enough, this
does not mean that sentencing judges or appellate judges need do no thinking about what weight
to give a history of prior convictions. The significance of a criminal history “varies based on the
gravity, nature and number of prior offenses as they relate to the current offense.” Wooley v.
State, 716 N.E.2d 919, 929 n.4 (Ind. 1999). We observed in Wooley that “a criminal history
comprised of a prior conviction for operating a vehicle while intoxicated may rise to the level of
a significant aggravator at a sentencing hearing for a subsequent alcohol-related offense.
However, this criminal history does not command the same significance at a sentencing hearing
for murder.” Id. A different example might help illustrate the same point. A conviction for theft
six years in the past would probably not, standing by itself, warrant maxing out a defendant’s
sentence for class B burglary. But, a former conviction for burglary might make the maximum
sentence for a later theft appropriate. See also Hollen v. State, 761 N.E.2d 398 (Ind. 2002).
Certainly not all cases will produce as clear-cut a separation between significant and non-
significant prior convictions as these examples. The need for clarity and careful weighing, made
by reference to appropriate prior criminal convictions, is more pronounced than ever given the
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increased importance prior criminal convictions play in the sentencing process in a post-Blakely
world.
Morgan’s class B conviction for delivering a controlled substance was certainly worthy
of some weight because of the similarity and proximity to the present offense. Given the number
of mitigating factors found by the court, however, we think that her criminal record, standing on
its own, would not support the imposition of the enhanced sentence.
II. Some Sentencing Factors Are Acknowledged
Morgan contends that only a jury could find the second aggravator considered by the
court -- that she had committed the present crime while on probation for another offense.
Morgan’s appeal does not actually present this question, because Morgan acknowledged
during the sentencing hearing the fact that she was on probation. The exchange between the trial
judge and Morgan on this point is as follows:
The Court: [Y]ou and your counsel convinced Judge Platt to send you to the
Indiana Department of Corrections for ten years but suspend it and put you on
probation. . . . . Right?
Ms. Morgan: Yes.
The Court: And then you got arrested for theft while you were on probation from
Judge Platt. Correct?
Ms. Morgan: Yes.
The Court: And five months later you got arrested for this charge. Correct?
Ms. Morgan: Yes. . . .
The Court: There’s no question you’re guilty of this offense. Correct?
Ms. Morgan: Yes.
The Court: There’s no question you had a prior felony, and you were out dealing
while you were on probation for dealing. Correct?
Ms. Morgan: Yes.
(Tr. at 13, 15.)
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Because Morgan admitted to the fact that she was on probation at the time of her arrest it
was permissible for the trial court to consider that fact as an aggravating circumstance without
submitting it to a jury. As the Court in Blakely stated, “nothing prevents a defendant from
waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial
sentencing enhancements so long as the defendant either stipulates to the relevant facts or
consents to judicial factfinding.” Blakely, 542 U.S. at __, 124 S.Ct. at 2541. See also United
States v. Booker, 543 U.S. __, 125 S.Ct. 738, 756 (2005) (“Accordingly, we reaffirm our holding
in Apprendi: Any fact . . . which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”) (emphasis added).
In this case, the record of the sentencing hearing clearly indicates that Morgan admitted
to the fact that she was on probation at the time she committed the instant offense. As a result,
the court could properly consider this fact in sentencing her to a term above the presumptive.
III. Judicial Statements About Aggravators
The fourth aggravator was that prior punishments had failed to rehabilitate Morgan. We
conclude that such statements, which our Court of Appeals has called “derivative” of criminal
history, are legitimate observations about the weight to be given to facts appropriately noted by a
judge alone under Blakely. They cannot serve as separate aggravating circumstances.
In response to the holdings in Blakely and Smylie, this Court and the Court of Appeals
have received a good many appeals alleging that sentences imposed by this state’s trial courts
were unconstitutional because they were enhanced beyond the presumptive term by the presence
of aggravators not found by a jury beyond a reasonable doubt. Like Morgan, a number of other
appellants challenge the imposition of the sentence in part because the precise language of the
aggravator used to enhance the sentence was not submitted to the jury or admitted by the
defendant. We conclude instead that in some of these cases the trial court appears to have relied
either on facts implicit in the jury’s finding, or on facts admitted by the defendant in choosing to
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articulate a particular aggravator. A good example of this sort of challenge is this case, in which
Morgan argues that because she was never specifically questioned regarding, nor specifically
admitted to, the fact that “previous punishments had failed to rehabilitate” the trial court
impermissibly found that aggravator.
The Court in Booker described the Sixth Amendment right of a criminal defendant to a
jury trial, as articulated in Blakely, and suggested that the right is only violated “whenever a
judge seeks to impose a sentence that is not solely based on ‘facts reflected in the jury verdict or
admitted by the defendant.’” Booker, 543 U.S. __, 125 S.Ct. at 749 (emphasis added) (quoting
Blakely, 542 U.S. __, 124 S.Ct. at 2537). We do not see how the Sixth Amendment is
implicated or endangered by permitting judges to use aggravators to enhance sentences so long
as the underlying facts supporting the aggravator are found by a jury or admitted by a defendant.
Put another way, Sixth Amendment rights are not implicated when the language of an
aggravator is meant to describe the factual circumstances, not to serve as a fact itself. This is
certainly the case with an aggravator such as “failed to rehabilitate” or “failed to deter” where the
language used is not itself a fact. Such observations merely describe the moral or penal weight
of actual facts. The “fact” of being undeterred is not established by a statement to that effect, but
rather by the underlying fact of prior convictions. Indeed, Blakely “left in tact [sic] the trial
judge’s authority to determine whether facts alleged and found are sufficiently substantial and
compelling to warrant imposing an exceptional sentence . . . . [T]hat decision is a legal judgment
which, unlike factual determinations, can still be made by the trial court.” State v. Hughes, 110
P.3d 192, 202 (Wash. 2005) (relying in part on Blakely, 124 S.Ct. at 2538 n.8).
The aggravators in such instances are not found by the separate inquiry of a judge, but
rather by reference to facts already admitted by the defendant or found by a jury. Thus the use of
such underlying facts to support an aggravator does not require the independent judicial fact-
finding at issue in Blakely. Rather, it reflects the efforts of a judge to describe in a concise
manner what the underlying facts mean, and why they demonstrate that a particular defendant
deserves an enhanced sentence.
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Because the use of underlying facts to support an enhanced sentence does not violate the
Sixth Amendment requirements of Blakely by allowing impermissible independent judicial fact
finding, we hold that sentences enhanced by aggravators whose language is not specifically
found by a jury or admitted by the defendant, are not necessarily impermissible so long as the
aggravator in question was 1) supported by facts otherwise admitted or found by a jury and 2)
meant as a concise description of what the underlying facts demonstrate and therefore relies upon
a legal determination otherwise reserved as a power of the judge.
Disposition
Of the four aggravators found by the trial court, two are valid under Blakely, one was
conceded by the State to be improper under state law, and one was a conclusion about the weight
of the first two. The trial court found five valid mitigating circumstances, as described above.
We believe these were collectively in equipoise and direct the trial court to revise the sentence to
the standard term of thirty years.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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