dissenting.
I respectfully dissent from the Court's order denying Petitioner Koor An Nur of Mary Katie Brown (formerly known as Eric D. Holmes) permission to file a successive petition for post-conviction relief.
This Court will authorize the filing of a successive petition for post-conviction relief if the petitioner establishes a reason*140able possibility that the petitioner is entitled to post-conviction relief. Ind. Post-Conviction Rule 1(12)(b). I believe Petitioner's situation is sufficiently similar to that of Saylor v. State, 808 N.E.2d 646 (Ind.2004), that there is a reasonable possibility that he would receive post-conviction relief.
There are the differences in Petitioner's and Saylor's situations that the Court's order identifies, to be sure. But one of the themes of the Saylor opinion that comes through loud and clear is the relative uniqueness of Saylor's position-that part of the reason that it would have been improper to execute him was that he was one of only three people on death row whose jury had recommended against death. Petitioner's situation is almost as unique. Indeed, the Saylor opinion identified Petitioner by name as being only one of four people on death row (the others being the three just mentioned) whose juries had not recommended a sentence of death. Id. at 650. Put differently, assuming the other two individuals in the same class as Saylor receive the same relief, Petitioner will be the only person on Indiana's death row whose jury has not recommended a sentence of death.
As to the 2002 amendments to the Indiana death penalty statute, it is true that the statute still authorizes the sentencing judge to impose a death sentence if the jury cannot agree on a sentencing recommendation. But I do not think this package is wrapped tightly enough to say that there is no reasonable possibility that Petitioner is entitled to post-conviction relief. This is because, even though the statute still permits a judge to impose a death sentence in the face of a penalty phase "hung-jury," the statute operates differently than it did prior to the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Appren-di, the Court held that the Sixth Amendment to the U.S. Constitution requires that "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." 530 U.S. at 490, 120 S.Ct. 2348. Ring made it clear that Apprendi applies to capital sentencing schemes. 536 U.S. at 609, 122 S.Ct. 2428.
As we pointed out in State v. Barker, Apprendi and Ring require "a penalty phase jury [to] return a verdict finding one or more aggravators proven beyond a reasonable doubt" before a sentencing judge can impose a sentence of death in the face of a penalty phase "hung-jury." Barker, 809 N.E.2d at 316. No such finding was made in Petitioner's case.
Indeed, in Bostick v. State, 773 N.E.2d 266, 273 (Ind.2002), this Court's only post-Ring penalty phase hung-jury case, we held that because the "jury during the sentencing phase was unable to reach a unanimous recommendation, and thus there was no jury determination finding the qualifying aggravating cireumstances beyond a reasonable doubt," the judge-imposed sentence of life-without-parole violated Apprendi and Ring.
The Court's order is correct when it says that we have held that a jury's guilt phase verdict can serve to establish the jury finding of the existence of the requisite aggravating cireumstances to meet the requirements of Apprendi and Ring. But every time we have affirmed a sentence on that basis, it has been in a case where the jury unanimously recommended a sentence of death or life without parole. See Clark v. State, 808 N.E.2d 1183, 1196 (Ind.2004); Williams v. State, 793 N.E.2d 1019, 1028 (Ind.2003); Brown v. State, 783 N.E.2d *1411121, 1126 (Ind.2003); Wrinkles v. State, 776 N.E.2d 905, 907-08 (Ind.2002); Obadyah Ben-Yisrayl v. State, no. 45S00-0112-SD-636, unpublished "Order Concerning Successive Post-Convietion Relief" (Ind. Feb. 15, 2002). The Court's order in this case is the first time this Court has explicitly concluded that the requirements of Apprendi and Ring have been met by a jury's guilt phase verdict where there was a hung-jury at the penalty phase.
While Apprendi and Ring do not apply to Petitioner's case because his direct appeal was final before they were decided, see Schriro v. Summerlin, - U.S. -, -, 124 S.Ct. 2519, 2526, 159 L.Ed.2d 442 (U.S.2004), the fact that Petitioner would not be sentenced to death today, combined with his unique position as described above, is sufficient for me to conclude that there is at least a reasonable possibility that he is entitled to post-conviction relief.
I would grant Petitioner's request to file a successive petition for post-conviction relief.
RUCKER, J., concurs.