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 cireumstances to determine sentences, and by engrafting a new procedure requiring that aggravating cireumstances be submitted for jury determination. I prefer a less onerous construction that leaves intact the language of the statute and modifies only judicial pree-edent 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." Opin. at 685. 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 § 85-88-1-7.1, which states in relevant part that "Tiln 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 § 35-38-1-8..
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 ag*692gravating and mitigating cireumstances, 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. Seq, 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, 270 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 cireumstances 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. 296, --, 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 cireum-stances, but their authority to impose a particular enhanced sentence would not be limited so as to require them to expressly find any particular aggravating cireum-stances.
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, 35-50-8-2 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 *693attendant 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 statutes 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 cireumstances 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.