Attorney for Appellant Attorneys for Appellee
Matthew D. Soliday Steve Carter
Valparaiso, Indiana Attorney General of
Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 64S03-0406-CR-284
Maurice K. Smith
Appellant (Defendant below),
v.
State of Indiana
Appellee (Plaintiff below).
_________________________________
Appeal from the Porter Superior Court, No. 64D01-0210-FB-9017
The Honorable Roger V. Bradford, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 64A03-0306-
CR-204
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April 20, 2005
Sullivan, Justice.
Defendant Maurice K. Smith’s sentence in this case was increased by 10
years because the trial court found him to be a “repeat sexual offender.”
He contends that the Indiana and United States Constitutions require a jury
determination of repeat sexual offender status before such an enhancement
may be imposed. We affirm the trial court’s decision. Smith’s rights
under Article I, Section 19, of the Indiana Constitution are not implicated
because the Legislature has not committed the determination of repeat
sexual offender status to the jury. And the federal constitutional rule
that “any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury” does not apply to “the fact
of a prior conviction.” The only facts at issue in determining repeat
sexual offender status are defendant’s prior convictions.
Background
The facts most favorable to the judgment indicate that in September,
2002, the victim in this case, after quitting her job at a dance club,
tried unsuccessfully to contact a friend to pick her up early. Maurice
Smith offered to give the woman a ride to a bowling alley where she
believed her friend to be. When she discovered that her friend was not
there, the woman asked Smith to drive her back to the club. Instead of
taking her back to the club, Smith stopped on the side of the road near a
cornfield and railroad tracks. There, Smith locked the victim in the car,
grabbed her by the neck, choked her, and demanded that she perform oral sex
on him. After struggling with Smith, the victim finally managed to escape
the car. She ran to a nearby house where she was let in and dialed “911.”
She was taken to and examined at the hospital where she was found to have
sustained many scratches, bruises, and abrasions.
Smith was charged with criminal deviate conduct, attempted rape,
criminal confinement, intimidation, and battery. A jury found him not
guilty of criminal deviate conduct, but guilty of all other charges. Under
the terms of Indiana’s Repeat Sexual Offender Statute, Indiana Code Section
35-50-2-14, to be discussed in detail infra, the trial court found Smith to
be a repeat sexual offender based on two prior unrelated rape convictions.
The court overruled Smith’s challenge to the constitutionality of the
Repeat Sexual Offender Statute, sentenced Smith to 20 years on the
underlying convictions, and added 10 years based on his repeat sexual
offender status, for a total of 30 years in the Indiana Department of
Correction.
Smith appealed his convictions and sentence. He contended that the
trial court committed reversible error by instructing the jury that the
uncorroborated testimony of one witness was sufficient to sustain a
conviction, in violation of our opinion in Ludy v. State, 784 N.E.2d 459
(Ind. 2003). Arguing that Indiana and United States Constitutions require
the jury to determine any facts that provide the basis for an enhanced
sentence, Smith also asserted that it was unconstitutional for the court,
rather than the jury, to find him to be a repeat sexual offender. The
Court of Appeals affirmed Smith’s convictions, but vacated his repeat
sexual offender adjudication and sentence enhancement, finding that Indiana
Code Section 35-50-2-14 violated the Indiana Constitution. Having found
the statute unconstitutional on state grounds, it did not need to, and did
not address, the federal issue. Smith v. State, 804 N.E.2d 1246 (Ind. Ct.
App. 2004).
Both parties sought transfer, Smith asking us to review the Ludy
issue[1] and the State asking us to examine the constitutional claim. We
now grant transfer, Ind. Appellate Rule 58(A), and affirm the judgment of
the trial court.
Discussion
The Repeat Sexual Offender Statute provides:
(a) The state may seek to have a person sentenced as a repeat
sexual offender for a sex offense under IC 35-42-4-1 through IC 35-42-
4-9 or IC 35-46-1-3 by alleging, on a page separate from the rest of
the charging instrument, that the person has accumulated one (1) prior
unrelated felony conviction for a sex offense under IC 35-42-4-1
through IC 35-42-4-9 or IC 35-46-1-3.
(b) After a person has been convicted and sentenced for a
felony committed after sentencing for a prior unrelated felony
conviction under IC 35-42-4-1 through IC 35-42-4-9 or IC 35-46-1-3,
the person has accumulated one (1) prior unrelated felony conviction.
However, a conviction does not count for purposes of this subsection,
if:
(1) it has been set aside; or
2) it is one for which the person has been pardoned.
(c) The court alone shall conduct the sentencing hearing under
IC 35-38-1-3.
(d) A person is a repeat sexual offender if the court finds
that the state has proved beyond a reasonable doubt that the person
had accumulated one (1) prior unrelated felony conviction under IC 35-
42-4-1 through IC 35-42-4-9 or IC 35-46-1-3.
(e) The court may sentence a person found to be a repeat
sexual offender to an additional fixed term that is the presumptive
sentence for the underlying offense. However, the additional sentence
may not exceed ten (10) years.
Ind. Code § 35-50-2-14 (2004).
Smith argues that the statute is unconstitutional under Article I,
Section 19, of the Indiana Constitution, which provides, “In all criminal
cases whatever, the jury shall have the right to determine the law and the
facts.” Ind. Const. art. I, § 19. Smith bases this argument largely on
our holding in Seay v. State, 698 N.E.2d 732 (Ind. 1998). He also contends
that the statute violates the Sixth Amendment to the United States
Constitution as interpreted by the United States Supreme Court in Apprendi
v. New Jersey, 530 U.S. 466 (2000), and its progeny.
The State maintains that the Repeat Sexual Offender Statute is
constitutional under both the Indiana and United States Constitutions. The
State argues that the Court of Appeals misapplied and misinterpreted Seay
and that the statute meets an exception to the general rule of Apprendi.
I
Seay involved a proceeding under our state’s Habitual Offender Statute
which provided, “A person is [a] habitual offender if the jury . . . finds
that the state has proved beyond a reasonable doubt that the person had
accumulated two (2) prior unrelated felony convictions.” Ind. Code § 35-50-
2-8(d) (Supp. 1985). See Seay, 698 N.E.2d at 733. As is apparent from the
language of this statute, the Legislature has entrusted the determination
of whether a person is a habitual offender to the jury. In Seay’s case,
the trial court instructed the jury that the jury was the judge of only the
facts, and not the law; the jury found him to be a habitual offender, and
his sentence consequently was enhanced by 30 years. Seay sought post-
conviction relief, arguing that the jury instruction did not give the jury
the opportunity to be the judge of the law, as well as of the facts, and
therefore violated Article I, Section 19, of the Indiana Constitution.
Seay, 698 N.E.2d at 733.
The somewhat subtle point at stake in Seay was whether the jury had
the freedom to determine that Seay was not a habitual offender even if it
found that the State had proved beyond a reasonable doubt that he had
accumulated the requisite prior felony convictions. Finding that the
Legislature intended for the jury to make a determination beyond the
factual findings on the habitual offender status, we held that “[t]he jury
was the judge of both the law and facts as to that issue and it was error
to instruct the jury otherwise.” Id. at 737.
As is clear from the text of the Repeat Sexual Offender Statute set
forth supra, the Legislature has not provided that determination of this
status be submitted to the jury. Smith’s argument is that “the failure to
allow the jury to find [his] status as a non-habitual offender directly
contradicts the holding in Seay.” Br. of Appellant at 10. Acknowledging
that the right to have repeat sexual offender status determined by a jury
has not yet been decided by this Court, Smith contends that “[t]he fact
that the right has been extended in all other habitual offender cases,
coupled with Article [I, Section] 19, which makes cases such as Seay
applicable to ‘all criminal cases whatever,’ results in an error for
failure to extend the right to Smith during his trial.” Id. at 11.
We disagree with Smith’s application of Seay. As just noted, the
Habitual Offender Statute at issue in Seay specifically assigned to the
jury the duty to determine the status of a habitual offender. This Court
in Seay recognized the importance that the Legislature placed on the jury
determination of habitual offender status:
If the legislature had intended an automatic determination of habitual
offender status upon the finding of two unrelated felonies, there
would be no need for a jury trial on the status determination. In
this case, what was at issue was the jury’s ability to find Seay to be
a habitual offender (or not to be a habitual offender) irrespective of
the uncontroverted proof of prior felonies.
Seay, 698 N.E.2d at 736-37 (citation and footnote omitted). Again, at
issue in Seay was whether the Legislature had entrusted the jury with
determining whether the defendant was a habitual offender or merely whether
he had committed the predicate offenses. The case did not speak to the
issue Smith raises: whether the Constitution requires such a determination
to be made by the jury at all.
The paragraph quoted above from Seay certainly suggests that under
Article I, Section 19, the Legislature could structure an “automatic”
sentencing enhancement scheme without “a jury trial on the status
determination.” That is what we believe the Legislature has done in the
case of the Repeat Sexual Offender Statute.[2] And we hold that Article I,
Section 19, of the Indiana Constitution so permits.
In a moment, we will turn our attention to Apprendi in which the
United States Supreme Court held that the Sixth Amendment right to trial by
jury (applied to the states through the Due Process Clause of the
Fourteenth Amendment), required that a jury make the factual determination
of authorizing an increase in the maximum prison sentence. Smith makes no
claim that his right to trial by jury under Article I, Section 13, of the
Indiana Constitution has been violated, and we express no opinion with
respect thereto.
II
Smith argues that even if the statute is constitutional under the
Indiana Constitution, it violates the United States Constitution as
interpreted by the Supreme Court in Apprendi and its progeny. He contends
that Apprendi entitles him to a jury determination on the fact of whether
or not he is a repeat sexual offender. While the general rule of Apprendi
is that “any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury,” the State argues
that Apprendi contains an exception to that general rule for “the fact of a
prior conviction.” Apprendi, 530 U.S. at 490. The Repeat Sexual Offender
Statute increased Smith’s sentence based on the facts of his prior
convictions for sexual offenses, the State maintains, and so falls outside
Apprendi’s requirement for a jury determination.
We agree with the State’s contention.
Apprendi, of course, was the first of several cases over the last five
years in which a narrowly divided United States Supreme Court has provided
guidance as to the respective roles that the Sixth and Fourteenth
Amendments allocate to the judge and jury in criminal sentencing. In
Apprendi, the defendant had fired several bullets into the home of an
African-American family. Id. at 469. He pled guilty to weapons possession
charges. Id. at 469-70. The trial court, finding by a preponderance of
the evidence that the shooting was racially motivated, increased Apprendi’s
sentence under New Jersey’s hate crime statute. Apprendi appealed, arguing
that “the Due Process Clause of the United States Constitution requires
that the finding of bias upon which his hate crime sentence was based must
be proved to a jury beyond a reasonable doubt.” Id. at 471. The United
States Supreme Court agreed that the Sixth and Fourteenth Amendments
required that a jury must make the determination as to whether the shooting
was racially motivated. The Court’s holding specified: “Other than the
fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at 490 (emphasis added). The Court
has recited this same formulation in its more recent cases, United States
v. Booker, 125 S. Ct. 738, 746 (2005) (Scalia, J.), and Blakely v.
Washington, 124 S. Ct. 2531, 2536 (2004).
But neither Apprendi, Blakely, nor Booker have actually involved “a
fact of a prior conviction” and so the High Court itself has had no
occasion to explore the phrase’s meaning. The “fact of a prior conviction”
language was included in Apprendi because the Apprendi Court was required
to distinguish its relatively recent decision in the case of Almendarez-
Torres v. United States, 523 U.S. 224 (1998). Almendarez-Torres involved a
challenge to the constitutionality of a statute that authorized a
substantially increased prison sentence for an alien who illegally returned
to the United States after having been deported when the initial
deportation was subsequent to a conviction for commission of specified
“aggravated felonies.” Almendarez-Torres admitted that he had been
deported, that he later unlawfully returned to the United States, and that
his deportation had taken place subsequent to three earlier convictions for
aggravated felonies. Id. at 227. However, he argued that given his Fifth
Amendment right to indictment by a grand jury, the court could not impose
an increased sentence because “an indictment must set forth all the
elements of a crime” and “his indictment had not mentioned his earlier
aggravated felony convictions.” Id. (citation omitted).
The Almendarez-Torres Court concluded that the fact of a prior
conviction was a sentencing factor, rather than a separate crime, and so
there was no requirement for the prior convictions to be stated in the
indictment. Id. at 226. The Court said:
[L]ower courts have almost uniformly interpreted statutes (that
authorize higher sentences for recidivists) as setting forth
sentencing factors, not as creating new crimes (at least where the
conduct, in the absence of the recidivism, is independently unlawful).
And we have found no statute that clearly makes recidivism an offense
element in such circumstances.
Id. at 230 (citations omitted).
Almendarez-Torres, therefore, presented the following question for the
Apprendi Court: if the sentencing factor at issue in Almendarez-Torres did
not constitute a separate element of a crime for constitutional purposes,
then why did the sentencing factor at issue in Apprendi do so? Because the
sentencing factor at issue in Almendarez-Torres was “the fact of a prior
conviction,” the Apprendi Court was able to say that
[b]oth the certainty that procedural safeguards attached to any “fact”
of prior conviction, and the reality that Almendarez-Torres did not
challenge the accuracy of that “fact” in his case, mitigated the due
process and Sixth Amendment concerns otherwise implicated in allowing
a judge to determine a “fact” increasing punishment beyond the maximum
of the statutory range.
Apprendi, 530 U.S. at 488 (footnote omitted).
But although the Apprendi Court said that “the fact of a prior
conviction” distinguished that case from Almendarez-Torres, it pointedly
did not rule on whether Apprendi overruled Almendarez-Torres. Rather, the
Apprendi Court said,
Even though it is arguable that Almendarez-Torres was incorrectly
decided, and that a logical application of our reasoning today should
apply if the recidivist issue were contested, Apprendi does not
contest the decision’s validity and we need not revisit it for
purposes of our decision today to treat the case as a narrow exception
to the general rule . . . .
Apprendi, 530 U.S. at 489-90 (footnote omitted). More recently, the Court
said that in Apprendi, it had “reserv[ed] judgment as to the validity of
Almendarez-Torres.” Dretke v. Haley, 124 S. Ct. 1847, 1853 (2004). And as
recently as this term, the Court has again left open the question of
whether Apprendi applies to prior convictions. See Shepard v. United
States, 125 S. Ct. 1254, 1236 n.5 (2005).
It certainly can be argued that Apprendi only held that the issue in
Almendarez-Torres was distinguishable and left open the question of whether
recidivist enhancements are subject to jury determination.[3] But in the
years since Apprendi was decided, there has appeared to be almost total
consensus that due process and the Sixth Amendment do not require a jury
determination to impose a recidivist sentencing enhancement. See, e.g.,
United States v. Orduno-Mireles, No. 04-12630, 2005 U.S. App. LEXIS 5442,
at *7 n.3 (11th Cir. Apr. 6, 2005); United States v. Moore, 401 F.3d 1220
(10th Cir. 2005); United States v. Skidmore, 254 F.3d 635, 642 (7th Cir.
2001) (citing cases); People v. Thomas, 110 Cal.Rptr.2d 571, 577-78 (Cal.
Ct. App. 2001) (citing cases).
The reason that a jury determination is not required to impose a
recidivist sentencing enhancement is set forth in Apprendi itself as well
as in Almendarez-Torres. Where there has been a prior conviction, either
the defendant has admitted or a jury has made a determination beyond a
reasonable doubt that the defendant has committed a particular crime. This
is “the certainty that procedural safeguards attached to any ‘fact’ of
prior conviction” of which the Court in Apprendi speaks. Apprendi, 530
U.S. at 488.
The doctrine of res judicata provides a second justification for not
requiring a jury determination to impose a recidivist sentencing
enhancement. Res judicata dictates that “a judgment rendered on the merits
is an absolute bar to a subsequent action between the same parties or those
in privity with them on the same claim or demand.” Gill v. Pollert, 810
N.E.2d 1050, 1057 (Ind. 2004) (quoting Sullivan v. American Cas. Co., 605
N.E.2d 134, 137 (Ind. 1992)). It “prevents the repetitious litigation of
that which is essentially the same dispute.” Ben-Yisrayl v. State, 738
N.E.2d 253, 258 (Ind. 2000) (citations omitted). Requiring a jury to find
the fact of a prior conviction would constitute such repetitious litigation
because the jury would be presented with the facts of a prior jury’s
conclusion.
We hold that the Sixth and Fourteenth Amendments do not require a jury
determination of the fact of a prior conviction in order to impose a
recidivist sentencing enhancement.
Smith appears to concede that under Apprendi, the determination of
whether an individual is a repeat sexual offender does not need to be made
by a jury. Smith, however, argues that the statute is unconstitutional
because it gives the court, rather than the jury, discretion as to whether
it will impose the repeat sexual offender status onto a defendant after the
defendant has already been found to be a repeat sexual offender. In other
words, Smith argues that the statute would likely not be problematic if it
required the court to increase a defendant’s sentence based on the finding
of repeat sexual offender status. Smith explains,
The legislature’s choice of the word “may,” forces a judge to
determine facts besides just that of repeat [sexual] offender status
when weighing what sentence a person should receive. Under Apprendi,
it is impermissible for the judge to determine other facts, with [the]
exception of repeat [sexual] offender status, thereby removing the
duty of fact finder from the jury.
Br. for Appellant at 12-13. Smith argues that although the jury need not
make a factual determination of his prior sex offenses, he still has the
right under Apprendi to have the jury make a determination of his repeat
sexual offender status. But this is the same issue that we resolved
against Smith in Part I. Although the Legislature made a distinction
between finding the fact of a prior conviction and finding the status of a
defendant with a prior conviction in the Habitual Offender Statute at issue
in Seay, it did not make such a distinction when drafting the Repeat Sexual
Offender Statute. Nothing in Apprendi or its progeny suggests that it was
required to do so.
Conclusion
Finding Indiana Code Section 35-50-2-14 to be constitutional under
both the Indiana and United States Constitutions, and having summarily
affirmed the decision of the Court of Appeals as to the issue referred to
in Footnote 1, we affirm the judgment of the trial court.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
-----------------------
[1] We summarily affirm the portion of the decision of the Court of Appeals
on this issue. Ind. Appellate Rule 58(A)(2).
[2] The Repeat Sexual Offender Statute was enacted in 1999, the year after
Seay was handed down. Pub. L. No. 214-1999, § 4.
[3] Indeed, the Court’s treatment of Almendarez-Torres may turn out to be
the same as its treatment of Walton v. Arizona, 497 U.S. 1050 (1990). The
Supreme Court said in Apprendi, 530 U.S. at 496-97, that the rule of Walton
was distinguishable and then subsequently held in Ring v. Arizona, 536 U.S.
584, 609 (2002), that Apprendi overruled Walton.