Smylie v. State

Attorneys for Appellant Attorneys for Appellee
Robert W. Hammerle Steve Carter
Joseph M. Cleary Attorney General of Indiana
Indianapolis, Indiana
Grant H. Carlton
Attorneys for Amicus Curiae Ellen H. Meilaender
Ann M. Sutton Deputy Attorneys General
Kathleen M. Sweeney
Marion County Public Defender Agency Attorneys for Amicus Curiae
Kim Hall
Michael R. Limrick Stephen J. Johnson
Indianapolis, Indiana Indiana Prosecuting Attorneys Council

Joel M. Schumm
Indiana University School of Law - Indianapolis

In the
Indiana Supreme Court
_________________________________

No. 41S01-0409-CR-408

Adolphe E. Smylie,
Appellant (Defendant below),

v.

State of Indiana,
Appellee (Plaintiff below).
_________________________________

Appeal from the Johnson Superior Court, No. 41D01-0207-FC-15
The Honorable Kevin Barton, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 41A01-0309-
CR-339
_________________________________

March 9, 2005

Shepard, Chief Justice.

Introduction

In this appeal and several similar cases, the defendants challenge the
constitutionality of their sentences under Blakely v. Washingtion, 124
S.Ct. 2531 (2004). The U.S. Supreme Court’s latest word on the
constitutionality of sentencing schemes is just eight weeks old. United
States v. Booker, 125 S.Ct. 738 (2005).

Attempting to take account of both Blakely and Booker, we hold today
that portions of Indiana’s sentencing scheme violate the Sixth Amendment’s
right to trial by jury, and that the new rule of Blakely should apply to
all cases pending on direct review at the time Blakely was announced in
which the appellant has adequately preserved appellate review of the
sentence.

Facts and Procedural History

On separate occasions from May 2001 through May 2002, Smylie molested
his step-daughter B.J., who was under the age of 14 at the time. The State
initially charged Smylie with two counts of child molesting, a class C
felony. Ind. Code Ann. § 35-42-4-3(b) (West 2004). It later amended the
charges to two counts of child solicitation, a class D felony. Smylie pled
guilty to the amended charges.

The Indiana Code provides that the penalty for a class D felony is a
“fixed term” of one and one-half years, with a maximum of one and one-half
years added for aggravating circumstances and up to a year subtracted for
mitigating circumstances. Ind. Code Ann. § 35-50-2-7 (West 2004). At the
sentencing hearing, the trial court judge found four aggravating
circumstances: 1) Smylie’s pattern of criminal activity, 2) his position of
trust with the victim, 3) the effect of the crime on the victim, and 4) the
imposition of a reduced or suspended sentence would depreciate the
seriousness of the crime. The court found two mitigating circumstances:
Smylie had no criminal history, and he was likely to respond to probation
or short-term imprisonment. It sentenced him to consecutive two-year terms
on each of the counts, with six months suspended, for a total of three and
one-half years.

I. Indiana’s Sentencing System Is Unconstitutional

A. Our “Fixed Terms” Are Much Like Washington’s Presumptive Ranges

On June 24, 2004, the U.S. Supreme Court issued its decision in
Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004). Writing for a 5-
4 majority, Justice Scalia declared that Blakely’s sentence, enhanced based
on various facts found by the sentencing judge, violated Blakely’s Sixth
Amendment right to a jury trial. Id. at __, 2538. This decision has cast
doubt over the constitutionality of sentencing schemes throughout the
country.

Blakely pled guilty to second-degree kidnapping involving domestic
violence and use of a firearm, a class B felony. Washington state law
capped punishment for a class B felony at 10 years. See Blakely, 542 U.S.
at __, 124 S.Ct. at 2535. According to Washington’s Sentencing Reform Act,
the standard sentencing range for Blakely’s crime was 49 to 53 months. Id.
The trial court judge imposed a sentence of 90 months -- 37 months over
the standard range -- pursuant to a Washington statute that allowed an
increased sentence if a judge found “substantial and compelling reasons
justifying an exceptional sentence.” Id. (quoting Wash. Rev. Code Ann. §
9.97A.120(2) (2000). The Washington trial judge had relied on “deliberate
cruelty”, an aggravating factor enumerated in the statutes. Id.

In analyzing the constitutionality of Washington’s sentencing scheme,
the Court began by reiterating the Sixth Amendment rule announced in
Apprendi v. New Jersey:[1] “[O]ther 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.” Blakely, 542 U.S. at __, 124 S.Ct. at 2536. While many
who read Apprendi deduced that “statutory maximum” meant “statutory
maximum,” the Blakely majority chose to define it as “the maximum sentence
a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” Id. at __, 2537. The statutory
maximum was thus not the 10-year cap on class B felonies, but rather the
standard sentencing range under the Washington Sentencing Reform Act. Id.
at __, 2538.

Blakely admitted to the facts of a crime carrying a sentence of 49-53
months, and if there were any additional facts used to increase the
sentence, the Court said, Blakely was entitled to have them found by a jury
beyond a reasonable doubt. Id. at __, 2537-38. Washington’s sentencing
procedure, to the extent it allowed a judge to increase the sentence above
the “statutory maximum” based on the judge’s findings, violated the Sixth
Amendment. Id. at __, 2538.

Whether this represents sound jurisprudence or policy is of no moment
for us under the Supremacy Clause, and we cannot see any grounds for
sustaining Indiana’s sentencing scheme given the Blakely holding. Indiana’s
sentencing scheme provides a “fixed term” presumptive sentence for each
class of felonies. See Ind. Code Ann. §§ 35-50-2-3 to 7 (West 2004).
These statutes also create upper and lower boundaries for each felony
sentence. Id. In deciding on whether to depart from the presumptive
sentence, the trial judge must consider seven enumerated factors and may
consider various other aggravating and mitigating factors. Ind. Code Ann.
§ 35-38-1-7.1 (West 2004).

From the time Indiana adopted its present sentencing arrangement in
1977, we have understood it as a regime that requires a given presumptive
term for each class of crimes, except when the judge finds aggravating or
mitigating circumstances deemed adequate to justify adding or subtracting
years. See, e.g., Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002);
Page v. State, 424 N.E.2d 1021, 1022-24 (Ind. 1981); Gardner v. State, 270
Ind. 627, 631-36, 388 N.E.2d 513, 516-19 (1979). This flows from the words
of the substantive sentencing provisions. The provision applicable to
Smylie’s crime mirrors those for other classes of felonies: “A person who
commits a Class D felony shall be imprisoned for a fixed term of one and
one-half (l ½ ) years, with not more than one and one-half (1 ½) years
added for aggravating circumstances or not more than one (1) year
subtracted for mitigating circumstances.” Ind. Code Ann. § 35-50-2-7(a)
(West 2004).

For Blakely purposes, Indiana’s “fixed term” is the functional
equivalent of Washington’s “standard sentencing range.” Both establish a
mandatory starting point for sentencing criminals based on the elements of
proof necessary to prove a particular offense and the sentencing class into
which the offense falls. The trial court judge then must engage in
judicial fact-finding during sentencing if a sentence greater than the
presumptive fixed term is to be imposed.[2] It is this type of judicial
fact-finding that concerned the Court in Blakely. “When a judge inflicts
punishment that the jury’s verdict alone does not allow, the jury has not
found all the facts ‘which the law makes essential to the punishment.’”
Blakely, 542 U.S. at __, 124 S.Ct. at 2537 (quoting 1 J. Bishop, Criminal
Procedure § 87 (2d ed. 1872)). While the Attorney General has ably
defended the statutes on other grounds we discuss below, we see little
daylight between the Blakely holding and the Indiana system.

B. Ours Is Not A Simple “Range” System

The Attorney General argues that Indiana’s sentencing statutes
establish a system of ranges for felony convictions, within which a judge
can work in fashioning a sentence. The State also asserts that the “fixed
term” presumptive sentence is merely a guidepost for judges operating
within the ranges. (Appellee’s Resp. Pet. Transfer at 6.) According to
the State, Indiana’s sentencing statutes do not violate Blakely because the
“statutory maximum” is the upper limit of the range, rather than the
presumptive sentence. (Id. at 6-7.)

We find ourselves unable to embrace this plausible contention for two
reasons. First, the Blakely majority rejected a nearly identical argument,
saying that “the relevant ‘statutory maximum’ is not the maximum sentence a
judge may impose after finding additional facts, but the maximum he may
impose without any additional findings.” Blakely, 542 U.S. at __, 124
S.Ct. at 2537. Indiana’s felony sentencing statutes provide “fixed terms”
and allow departures only if aggravating or mitigating factors are
found.[3] Ind. Code Ann. §§ 35-50-2-3 to 7 (West 2004). These factors are
assessed by the judge alone. Ind. Code Ann. § 35-38-1-7.1 (West 2004). If
the trial court adds or subtracts from the standard fixed term, the judge
must: 1) identify all significant aggravating and mitigating factors; 2)
specify the findings of fact and reasons which lead the court to find such
factors; and 3) articulate that the aggravating and mitigating factors were
evaluated and balanced in determination of the sentence. Trowbridge v.
State, 717 N.E.2d 138, 149 (Ind. 1999).

Second, the State’s argument runs contrary to the interpretation of
the Indiana statutory scheme as articulated and implemented by our trial
and appellate courts over parts of four decades. Because the judge has to
find additional facts to impose a sentence higher than the presumptive
sentence, the presumptive sentence is the “relevant statutory maximum.”
See Blakely, 542 U.S. at __, 124 S.Ct. at 2537.

The State also points to the Blakely Court’s disapproval of a
sentencing system that allows a judge to rely on a probation officer’s
report to increase a defendant’s maximum potential sentence dramatically
without warning the defendant either at the time of the indictment or the
plea. Blakely, 542 U.S. at __, 124 S.Ct. at 2542. (Appellee’s Br. Resp.
Br. of Amicus Curiae Marion County Public Defender Agency at 9-10.) It
contends that Indiana’s regime does not allow what Justice Scalia called an
“unexpected increase”[4] inasmuch as defendants are aware of the maximum
sentence that can be imposed for any given felony, namely, the range listed
in the sentencing statutes.

Fatal to this assertion is the fact that Washington’s system gave
similar notification. Washington’s statutes theoretically informed
defendants that a sentence may be increased to a statutory upper limit if
“substantial and compelling reasons justify an exceptional sentence.”
Wash. Rev. Code Ann. § 9.94A.120(2) (2000).[5] This upper limit in
Washington, ten years for a class B felony, still allowed a sentence to
“balloon” from the statutory maximum based on judicial fact-finding.[6]
The increase was “unexpected” in one important sense, namely that the
aggravators used to support a departure from the presumptive are not
charged in the indictment. See McCormick v. State, 233 Ind. 281, 119
N.E.2d 5 (1954) (charging information need only contain essential elements
of crime to notify defendant of what crime is charged). The Court was
apparently unconvinced that this notification problem is remedied by any
awareness by the defendant of the upper limit. See Blakely, 542 U.S. at
__, 124 S.Ct. at 2538-42.

C. What Is the Effect of this Blakely Violation?

The foregoing conclusion about the unconstitutionality of Indiana’s
present sentencing system hardly nullifies the entire arrangement. We have
historically rescued constitutional portions of statutes, if possible, when
other portions are held unconstitutional. See, e.g., State v. Barker, 809
N.E.2d 312 (Ind. 2004); State v. Kuebel, 241 Ind. 268, 172 N.E.2d 45
(1961). We have adopted the severability test enunciated in Dorchy v.
Kansas:

A statute bad in part is not necessarily void in its entirety.
Provisions within the legislative power may stand if separable
from the bad. But a provision, inherently unobjectionable,
cannot be deemed separable unless it appears both that, standing
alone, legal effect can be given to it and that the legislature
intended the provision to stand, in case others included in the
act and held bad should fall.[7]

It is apparent that Indiana’s sentencing system runs afoul of the
Sixth Amendment not because it mandates a “fixed term” sentence for each
felony, but because it mandates both a fixed term and permits judicial
discretion in finding aggravating or mitigating circumstances to deviate
from the fixed term. A constitutional scheme akin to ours could take one
of two forms: (1) our present arrangement of fixed presumptive terms,
modified to require jury findings on facts in aggravation, or (2) a system
in which there is no stated “fixed term” (or at least none that has legally
binding effect) in which judges would impose sentences without a jury.

The U.S. Supreme Court, in its most recent installment in this Sixth
Amendment saga, applied Blakely to the Federal Sentencing Guidelines.
United States v. Booker, 543 U.S. __, 125 S.Ct. 738, 746 (2005). The
Court’s solution was to sever and excise a portion of the sentencing
statute that made the sentence indicated by the Guidelines range mandatory
unless the trial court found aggravating or mitigating circumstances not
adequately considered by the U.S. Sentencing Commission. This excising
produced an arrangement like the second option described above. Blakely
had explicitly sanctioned such regimes. Blakely, 542 U.S. at __, 124 S.Ct.
at 2540 (indeterminate sentencing by judges and parole boards not a
violation of Sixth Amendment).

Our conclusion about severability leads to an outcome more like the
first choice mentioned above. In excising only the minimal portions of the
existing statute necessary to comply with Blakely, we are much influenced
by the fact that the overarching theme of Indiana’s 1977 sentencing reform
was a legislative decision to abandon indeterminate sentencing in favor of
fixed and predictable penalties. The 1977 act assigned to judges the task
of imposing penalties stated as a fixed term of years and created a
structure for setting those penalties that is far more definitive than the
scheme it replaced.

We conclude that the first option listed above is probably more
faithful to the large objectives of the General Assembly’s 1977 decisions.
We thus hold that the sort of facts envisioned by Blakely as necessitating
a jury finding must be found by a jury under Indiana’s existing sentencing
laws.

D. Blakely Does Not Invalidate Indiana’s Arrangement for Consecutive Terms

Having concluded that Indiana’s system for enhanced sentences
contravenes Blakely, we turn to a closely related issue posed by Smylie.

When sentencing a defendant on multiple counts, an Indiana trial
judge may impose a consecutive sentence if he or she finds at least one
aggravator.[8] Ortiz v. State, 766 N.E.2d 370 (Ind. 2002); Morgan v.
State, 675 N.E.2d 1067 (Ind. 1996). A defendant does have the right to the
exercise of a trial court’s discretion.[9] Certainly, where a judge finds
that aggravating and mitigating circumstances are in equipoise, we have
required concurrent sentences, Marcum v. State, 725 N.E.2d 852, 863-64
(Ind. 2000), just as we have where the court has not found any aggravating
circumstances at all. Hansford v. State, 490 N.E.2d 1083, 1094 (Ind.
1986). But our statutes do not erect any target or presumption concerning
concurrent or consecutive sentences. Where the criminal law leaves
sentencing to the unguided discretion of the judge there is no “judicial
impingement upon the traditional role of the jury.” Blakely, 542 U.S. at
__, 124 S.Ct. at 2540.

We find no language in Blakely or in Indiana’s sentencing statutes
that requires or even favors concurrent sentencing. See generally,
Blakely, 542 U.S. __, 124 S.Ct. 2531 (2004); Ind. Code Ann. § 35-50-1-2
(West 2004). The trial court’s sentencing of Smylie to consecutive terms
after finding an aggravating circumstance did not increase the sentence
above the statutory maximum for each offense. See State v. Abdullah, 858
A.2d 19, 39 (N.J. Sup. Ct. App. Div. 2004) certification granted (“Although
the imposition of consecutive terms . . . increase[s a] defendant’s
punishment, [it does] not increase the penalty above what the law provides
for the offense charged.”). [10] There is no constitutional problem with
consecutive sentencing so long as the trial court does not exceed the
combined statutory maximums.

E. Smylie’s Sentence

The trial court sentenced Smylie to two years for each count of class
D felony child solicitation, six months above the standard fixed term. The
aggravating factors used to enhance the sentence were not submitted to the
jury or admitted by Smylie. The enhancement cannot be imposed without jury
findings. We reverse and remand for a new sentencing on these counts,
should the State elect, with the intervention of a jury. The trial court’s
order of consecutive sentences is not defective, and we affirm it.

II. Why is Smylie Entitled to Raise Blakely Issues on Appeal?

The State claims that Smylie has forfeited his right to pursue this
issue. Smylie did not request that the trial court submit aggravating
circumstances to a jury, nor did he raise a Blakely claim in his appellate
brief, filed in January 2004. Under regular appellate practice, this would
forfeit the claim.

A. Blakely Establishes a “New Rule”

It is firmly established that, “a new rule for the conduct of
criminal prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no exception for
cases in which the new rule constitutes a ‘clear break’ with the past.”
Griffith v. Kentucky, 479 U.S. 314, 328 (1987). A rule is new for the
purposes of retroactivity “if the result was not dictated by precedent
existing at the time the defendant’s conviction became final.” Teague v.
Lane, 489 U.S. 288, 301 (1989). Blakely was decided while Smylie’s case
was still pending on direct appeal, and thus, the initial question is
whether the result in Blakely was dictated by existing precedent.

The State apparently concedes that Blakely constitutes a new rule for
the purposes of retroactivity.[11] Correctly so. While Blakely certainly
states that it is merely an application of “the rule we expressed in
Apprendi v. New Jersey,” 124 S.Ct. at 2536, it is clear that Blakely went
beyond Apprendi by defining the term “statutory maximum.” As the Seventh
Circuit recently said, it “alters courts’ understanding of ‘statutory
maximum’” and therefore runs contrary to the decisions of “every federal
court of appeals [that had previously] held that Apprendi did not apply to
guideline calculations made within the statutory maximum.” Simspon v.
United States, 376 F.3d 679, 681 (7th Cir. 2004)(collecting cases).
Because Blakely radically reshaped our understanding of a critical element
of criminal procedure, and ran contrary to established precedent, we
conclude that it represents a new rule of criminal procedure.[12]

B. Blakely Applies Retroactively to Cases on Direct Review

Of course, as the State points out, the application of Blakely to any
case pending on direct review remains subject to the standard rules
governing appellant procedure such as waiver and forfeiture.[13]

To receive the benefit of a new rule of law, a claimant must preserve
the issue for appeal. In Pirnat v. State, 607 N.E.2d 973 (Ind. 1993), for
example, we considered the retroactive applicability of our decision about
the admissibility of “depraved sexual instinct” evidence to cases pending
on appeal at the time Lannan v. State, 600 N.E.2d 1334 (Ind. 1992) was
decided. We declared that “Pirnat and others whose cases properly
preserved the issue and whose cases were pending on direct appeal at the
time Lannan was decided receive the benefit of review under the new rule.”
Pirnat, 607 N.E.2d at 974 (emphasis added).[14] Pirnat had previously
challenged the admission of the “depraved sexual instinct” evidence at
trial and on appeal. Pirnat v. State, 596 N.E.2d 259 (Ind. Ct. App. 1992).

We reached the same conclusion in Coleman v. State, 558 N.E.2d 1059
(Ind. 1990), when we considered the retroactive applicability of the
constitutional rule announced in Booth v. Maryland, 482 U.S. 496 (1987) and
South Carolina v. Gathers, 490 U.S. 805 (1989) to cases pending on direct
appeal at the time those rules were announced.[15] Although we concluded
that Booth and Gathers applied retroactively to cases pending on direct
appeal, we made clear that we considered the rule to “apply to the direct
appeal of a trial occurring before those cases were decided so long as the
appellant has preserved [the issue for appeal] by objecting at trial.”
Coleman, 558 N.E.2d at 1061 (emphasis added). We have utilized this same
approach in other cases. See, e.g., Ried v. State, 615 N.E.2d 893 (Ind.
1993); Daniels v. State, 561 N.E.2d 487 (Ind. 1990).

On this principle of appellate law, Indiana jurisprudence is rather
ordinary. In United States v. Cotton, 535 U.S. 625 (2002), for example,
the Supreme Court applied the plain error test to a case pending on appeal
when the new rule in Apprendi was announced. In so doing, the Court noted
that Cotton’s claim was “forfeited” because of his failure to object to
alleged error at trial. Id. at 629, 631. Similarly, in Johnson v. United
States, 520 U.S. 461 (1997), the Court considered the retroactive
application of the rule announced in United States v. Gaudin, 515 U.S. 506
(1995), to a case pending on appeal at the time of that decision. In
considering Johnson’s claim, the Court noted that “[b]ecause petitioner is
still on direct review, Griffith requires that we apply Gaudin
retroactively.” Johnson, 520 U.S. at 467. The Court, however, still
applied plain error review because of Johnson’s failure to object at trial
and preserve the error for appeal. Id. Unsurprisingly, a number of
federal circuit cases reflect the same practice.[16]

Given this backdrop of precedent we believe that our approach
regulating the retroactive application of a new rule to cases pending on
direct appeal through the application of the rules governing appellate
procedure is entirely consistent with the dictates of Griffith. As such,
we agree with the State that it is entirely possible for defendants to have
waived or forfeited their ability to appeal their sentence on Blakely
grounds.

C. What is Enough to Preserve a Blakely Challenge?

The State urges us to declare Smylie’s claim forfeited because he
failed to “lodge an objection at his sentencing hearing that his right to
trial by jury was denied when the trial court found aggravating
circumstances and imposed an enhanced sentence either generally or
specifically based on Apprendi.” (Resp. Pet. Transfer at 4.) The State
further stresses that Blakely based his “‘exceptional’ sentence” claim on
Apprendi “just as Smylie should have if he found his sentence
objectionable.” (Resp. Pet. Transfer at 4-5.)

The State rightly points out that a claim is generally considered
forfeited if it is not objected to at trial, see Bruno v. State, 774 N.E.2d
880 (Ind. 2002), and it is certainly correct that Smylie could have
objected on Apprendi or Sixth Amendment grounds at the time the trial court
convened for the sentencing hearing. Because Blakely represents a new rule
that was sufficiently novel that it would not have been generally
predicted, much less envisioned to invalidate part of Indiana’s sentencing
structure, requiring a defendant or counsel to have prognosticated the
outcome of Blakely or of today’s decision would be unjust.

This is the same approach taken by the Seventh Circuit in several
recent decisions. In United States v. Pree, 384 F.3d 378 (7th Cir. 2004),
the court noted that Pree did not “address to this court, nor can we find
evidence in the record to indicate, that she addressed before the district
court the constitutionality of her sentencing enhancement.” Id. at 396.
Despite this failure to raise an objection to her sentence at either the
trial court or before the court of appeals, the Seventh Circuit
nevertheless stated that “[g]iven the precedent in this circuit prior to
Blakely, we think it would be unfair to characterize Ms. Pree as having
waived a challenge to the validity of her sentencing enhancement.” Id.

Likewise, the panel in United States v. Henningsen, 387 F.3d 585 (7th
Cir. 2004), concluded that the failure to object to a sentence on
constitutional grounds did not constitute forfeiture of the Blakely issue
for appeal.[17] The court noted that “Henningsen’s challenge during
sentencing and in his brief on appeal did not extend to the
constitutionality of the enhancements.” Id. at 591. However, while such
failure to object would ordinarily constitute forfeiture, the court took
note of the fact that Henningsen:

made notice of the Blakely . . . [decision] in a subsequent
filing and raised the issue during argument. In light of the
uncertainity surrounding this issue and the questionable
constitutionality of Henningsen’s sentencing enhancement, we do
not find that Hennignsen has waived his right to challenge the
validity of the district court’s sentencing enhancement.[18]

We conclude that it is appropriate to be rather liberal in
approaching whether an appellant and her lawyer have adequately preserved
and raised a Blakely issue. A very tough Blakely preservation rule would
prompt practitioners to fill trial time and appellate briefs with all
imaginable contentions, contrary to the general advice that it is good
practice to focus on the most viable issues. It would also drastically
alter the burden imposed on counsel as to what constitutes effective
assistance to their clients. As we said in Fulmer v. State, 523 N.E.2d 754
(Ind. 1988), “An attorney is not required to anticipate changes in the law
and object accordingly” in order to be considered effective. Id. at 757-
58. As we suggested above, a trial lawyer or an appellate lawyer would not
be ineffective for proceeding without adding a Blakely claim before Blakely
was decided. Consequently, we do not deem the failure to raise a Sixth
Amendment objection to the trial court as it proceeded through sentencing
to constitute forfeiture of a Blakely issue for purposes of appellate
review.

Nevertheless, it does not ask too much that a criminal defendant have
contested his or her sentence on appeal, even if the Blakely element of
that contest is added later, as it has been by Smylie. Thus, we regard
defendants such as Smylie who sought sentence relief from the Court of
Appeals based on arbitrariness or unreasonableness (Appellant’s Br. at 3),
and who added a Blakely claim by amendment or on petition to transfer as
having adequately presented the issue of the constitutionality of their
sentence under Blakely.

Defendants who have appealed without raising any complaint at all
about the propriety of their sentence have arguably made the sort of
knowing and intelligent decision regarding their appeal that is required
for waiver to exist. Thus, those defendants who have not raised objections
to their sentences should be deemed to have at least forfeited, and likely
waived, the issue for review.

D. Summary

First, as a new rule of constitutional procedure, we will apply
Blakely retroactively to all cases on direct review at the time Blakely was
announced. Second, a defendant need not have objected at trial in order to
raise a Blakely claim on appeal inasmuch as not raising a Blakely claim
before its issuance would fall within the range of effective lawyering.
Third, those defendants who did not appeal their sentence at all will have
forfeited any Blakely claim.

III. Disposition

We reverse that part of Smylie’s sentence that enhances the standard
penalty and remand for a new sentencing hearing in which the State may
elect to prove adequate aggravating circumstances before a jury or accept
the statutory fixed term. We affirm the order for consecutive sentences.

Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., dissents with separate opinion.
Dickson, Justice, dissenting.

Because of recent decisions of the United States Supreme Court, the
majority chooses to preserve the constitutionality of Indiana's criminal
sentencing system by judicially severing statutory provisions that direct
trial judges to consider aggravating and mitigating circumstances to
determine sentences, and by engrafting a new procedure requiring that
aggravating circumstances be submitted for jury determination. I prefer a
less onerous construction that leaves intact the language of the statute
and modifies only judicial precedent interpreting the statute.

Statutes must be accorded every reasonable presumption to support
their validity, and if possible, we must adopt a reasonable construction
that support their constitutionality. Burris v. State, 642 N.E.2d 961, 968
(Ind. 1994); Brady v. State, 575 N.E.2d 981, 985 (Ind. 1991); Miller v.
State, 517 N.E.2d 64, 71 (1987). In assessing the constitutionality of a
statute, "we might well modify our view of the statute's demands if doing
so would preserve its constitutionality." A Woman's Choice-East Side v.
Newman, 671 N.E.2d 104, 110 (Ind. 1996).

The majority correctly acknowledges that one possible option for
Indiana's sentencing system to satisfy the United States Supreme Court
requirements would be "a system in which there is no stated 'fixed term'
(or at least none that has legally binding effect) in which judges would
impose sentences without a jury." Slip opin. at 8. In fact, this is the
approach recently implemented by the Supreme Court in applying its
requirements to federal criminal sentencing. United States v. Booker, 543
U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

This system is not inconsistent with the express language of Indiana
Code § 35-38-1-7.1, which states in relevant part that "[i]n determining
what sentence to impose for a crime, the court shall consider," id.
(emphasis added), and then lists various possible aggravating and
mitigating factors, in addition to which the statute declares that such
factors "do not limit the matters that the court may consider in
determining the sentence." Ind. Code § 35-38-1-7.1(d) (emphasis added).
If the court finds aggravating or mitigating circumstances, it must at
sentencing make a record of its "reasons for selecting the sentence that it
imposes." Ind. Code § 35-38-1-3.
The rule that has developed in Indiana criminal sentencing is that
enhanced sentences may only be imposed upon the judge's express
determination of one or more aggravating factors. But this rule is not
required by statutory language, which compels only general consideration of
aggravating and mitigating circumstances, and does not compel trial courts
to find any particular aggravator as a prerequisite to imposing an enhanced
sentence. Our current rule reflects an obligation that was gradually
superimposed upon the statute by a series of judicial decisions. See,
e.g., Taylor v. State, 181 Ind.App. 227, 230, 391 N.E.2d 662, 664 (1979)
(affirming sentence because trial court did not treat sentencing guidelines
as binding but rather as only a tool); Gardner v. State, 279 Ind. 627, 633,
388 N.E.2d 513, 517 (1979) (when increased sentences are imposed, trial
court should disclose the factors considered, to facilitate appellate
review for sentence reasonableness); Abercrombie v. State, 275 Ind. 407,
412, 417 N.E.2d 316, 319 (1981) (court's record of sentencing reasons
serves two purposes: to confine the judge to proper grounds and to permit
appellate court to determine reasonableness of sentence); Dumbsky v. State,
508 N.E.2d 1274, 1278 (Ind. 1987) (requiring sentencing court to
specifically identify aggravating circumstances serves dual purposes of
providing an adequate basis for appellate review and guarding against
arbitrary and capricious sentencing); Bustamante v. State, 557 N.E.2d 1313,
1321 (Ind. 1990) (when judges impose enhanced sentences, they must make
specific findings of aggravating circumstances); Henderson v. State, 769
N.E.2d 172, 179 (Ind. 2002) (where trial court enhances presumptive
sentence, it must identify and explain aggravating circumstance). To be
sure, our current judicial construction mandating an affirmative finding of
one or more aggravating factors as a prerequisite to imposing an enhanced
sentence is now long-settled and serves well the sound policy of favoring
fair, consistent, and predictable penalties. As this Court holds today,
however, this system runs afoul of the federal constitutional prohibition
against sentences that require a judge to find some additional fact not
found by a jury. Booker, 543 U.S. at ___, 125 S.Ct. at 749, 160 L.Ed.2d at
643; Blakely v. Washington, 542 U.S. ___, ___, 124 S.Ct. 2531, 2538, 159
L.Ed.2d 403, 415 (2004).

To comply with this requirement, we should judicially modify not the
statutory language but our own precedents. The result would be that
Indiana trial judges would continue to determine sentences in accordance
with statute, with discretion to the fix the sentence within specific
ranges already designated by the legislature for various categories of
criminal offenses. As required by the statute, they must consider
aggravating and mitigating circumstances, but their authority to impose a
particular enhanced sentence would not be limited so as to require them to
expressly find any particular aggravating circumstances.

Our Criminal Code provides that for each class of felony or
misdemeanor, a person convicted "shall be imprisoned for a fixed term of"
and specifies a specific number followed by a limited range of years that
may be added or subtracted for aggravating or mitigating circumstances.
See Ind. Code §§ 35-50-2-4 through -7, 35-50-3-2 through -4. We refer to
this fixed number as the "presumptive" sentence for each class of offense.
The presumptive sentences identified by statute would serve as non-binding
recommendations, with our trial courts nevertheless empowered to exercise
their sound discretion to fix the sentence at any point within the
designated range, upon consideration of the aggravating and mitigating
factors as found by the judge.

Not only would this method of compliance with federal constitutional
requirements avoid the necessity of judicially altering statutory language,
it would also avoid adding a new layer of jury sentencing hearings in
criminal cases and the attendant additional expense and delay. Adoption of
such an approach would not be unusual. Notwithstanding today's decision of
this Court, the legislature may still choose to modify Indiana's sentencing
statues to implement this system.

Independent of the above discussion, it should be noted that, under
the new methodology created by the Court's opinion today, defendants who
challenge their prior judge-determined sentence claiming entitlement to a
jury determination of aggravating circumstances may ultimately receive a
greater sentence. The trial court here sentenced Smylie to three and one-
half years, after suspending six months. This is less than the maximum
possible aggregate sentence of six years that the defendant was facing.
Today's decision operates to vacate this sentence and to remand the case
for a new sentencing hearing. If a jury then determines aggravating
factors significantly different from those previously found by the trial
judge, there is no reason that the defendant could not end up receiving the
maximum sentence, which would be two and one-half years more than that
originally imposed by the trial judge.
-----------------------
[1] 530 U.S. 466, 490 (2000).
[2] Although Indiana’s fixed term is a definitive amount of time and
Washington’s presumptive sentence is a range, this difference is merely in
form.
[3] Ind. Code Ann. §§ 35-50-2-3 to 7 (West 2004) provide that years can be
“added for aggravating circumstances,” which implies that aggravators are
the only relevant inquiry in increasing a sentence. In fact, the absence
of an aggravator requires a presumptive sentence. Henderson v. State, 769
N.E.2d 172, 180 (Ind. 2002).
[4] Blakely, 542 U.S. at __, 124 S.Ct. at 2535.
[5] Citations are to the Washington Code as it existed at the time of
Blakely’s sentencing.
[6] Wash. Rev. Code Ann. § 9A.20.021 (2000).
[7] 264 U.S. 286, 289-90 (1924)(internal citations omitted).
[8] Ind. Code Ann. § 35-50-1-2(c) (West 2004) provides that aggravating and
mitigating circumstances may be a consideration in imposing concurrent or
consecutive sentences. Indiana’s caselaw has developed to make an
aggravating circumstance a requirement before a consecutive sentence may be
imposed. See Shippen v. State, 477 N.E.2d 903, 905 (Ind. 1985); Mott v.
State, 273 Ind. 216, 220, 402 N.E.2d 986, 988 (1980).
[9] Ind. Code Ann. § 35-50-1-2(c) (West 2004).

[10] The Court of Appeals upheld only one of the four aggravators found by
the trial court, Smylie v. State, 807 N.E.2d 809, 41A01-0309-CR-339, slip
op. at 5 (Ind. Ct. App. April 13, 2004) (mem.) trans. granted, but just one
may be enough. Ortiz v. State, 766 N.E.2d 370, 377 (Ind. 2002); Morgan v.
State, 675 N.E.2d 1067, 1073 (Ind. 1996).

[11] “The State recognizes that Blakely can be read to establish a ‘new
rule’.” (Resp. Pet. Transfer at 5.)
[12] We also note that Blakely has created such controversy that the so-
called owner of the “Blakely Blog,” Professor Douglas A. Berman, of Moritz
College of Law at The Ohio State University, has stopped tracking state
cases related to Blakely because of the overwhelming number and diversity
of the holdings. Douglas A. Berman, In re State Blakely Interpretations,
(Dec. 9, 2004) at http://sentencing.typepad.com. That so many states are
wrestling with the meaning of Blakely is further evidence of its
unpredictability and a further indication that reasonable lawyers would not
have known of the outcome.
The brief of amicus curiae, the Indiana Prosecuting Attorneys Council,
prepared by Stephen J. Johnson, has been especially helpful in providing
meaningful electronic resources. Mr. Johnson should be commended for
utilizing a unique and useful legal resource in the service of his
organization.
[13] These terms are often used somewhat interchangeably, but they deal
with distinct categories of non-appealable issues. Waiver indicates an
“intentional relinquishment or abandonment of a known right.” United States
v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S.
458, 464 (1938)). In contrast, forfeiture occurs when a party fails “to
make the timely assertion of a right.” Olano, 507 U.S. at 733. Furthermore,
while waiver generally precludes appellate review of an issue, in federal
practice forfeiture permits appellate review, but limits such review to
“plain error.” Id.; United States v. Levy, 391 F.3d 1327, 1341-43 (11th
Cir. 2004)(Tjoflat, J., dissenting).
[14] Cf. Pirnat v. State 600 N.E.2d 1342 (Ind. 1992).
[15] Although the rule announced in Booth and Gathers was eventually
overruled by Payne v. Tennessee, 501 U.S. 808 (1991), this does not impact
our retroactivity analysis.
[16] See,e.g., United States v. Rogers, 118 F.3d 466, 470-71 (6th Cir.
1997)(with respect to forfeited claim when intervening case establishes a
new rule, “[w]e must apply the plain error doctrine to analyze the failure
to submit the question of materiality to the jury.”); United States v.
Levy, 391 F.3d 1327, 1331 (11th Cir. 2004)(“Griffith cannot, and does not,
control a situation in which the defendant . . . never raised nor preserved
a constitutional challenge, but, instead, raises it for the first time in a
petition for rehearing.”). Like the federal “plain error” doctrine, our
“fundamental error” rule sometimes affords relief to claimants who did not
preserve an issue before the trial court and seek to raise it for the first
time on appeal. Under our holding today, Blakely claimants who have
appealed their sentences will be allowed to add a tardy Blakely claim and
thus have no need to claim, “fundamental error.” The fundamental error
doctrine will not, as caselaw holds, be available to attempt retroactive
application of Blakely through post-conviction relief. See Sanders v.
State, 765 N.E.2d 591, 592 (Ind. 2002); Canaan v. State, 683 N.E.2d 227,
235 n.6 (Ind. 1997).

[17] Although we are aware that the Seventh Circuit used the term “waiver”
in both Pree and Hennignsen, taken in context, and given the earlier
discussion distinguishing forfeiture and waiver, we understand the court of
appeals to have meant to include forfeiture in its use of the term waiver
except insofar as we distinguish Pree.
[18] Henningsen, 387 F.3d at 591.