concurring in part and dissenting in part.
I respectfully dissent from Part V, the majority's conclusion to remand the case for resentencing in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh'g denied. As recognized by the majority, our United States Supreme Court held in Blakely that the Sixth Amendment requires a jury to determine beyond a reasonable doubt the *299existence of aggravating factors used to increase the sentence for a crime above the presumptive sentence assigned by the legislature. Id., 124 S.Ct. at 2536. Specifically, the Supreme Court held that er than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The Supreme Court defined this statutory maximum 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 2587. (emphasis in original). "In other words, 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." Id. (emphasis in original). Furthermore, we are convinced that the Supreme Court's recent opinion in United States v. Booker, 548 U.S. --, --, 125 S.Ct. 738, 742, 160 L.Ed.2d 621 (2005) (Stevens, J., writing for the Court) does not alter the Blakely rule as it now applies in Indiana. As Justice Stevens espoused, "[alny fact (other than a prior conviction) 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 by a jury beyond a reasonable doubt." Id., -- U.S. at --, 125 S.Ct. at 755. This statement is reinforced by Justice Breyer writing that, "the Court holds that ... the Sixth Amendment requires juries, not judges to find facts relevant to sentencing." Id., - U.S. at --, 125 S.Ct. at 756.
Accordingly, we concluded in Krebs v. State, 816 N.E.2d 469, 475 (Ind.Ct.App.2004), that it appeared that our trial courts no longer have discretion to sentence a criminal defendant to more than the presumptive sentence unless the defendant waives his right to a jury at sentencing, a jury first determines the existence of aggravating factors, or the defendant has a criminal history.
In sentencing Richle to an aggregate sentence of 108 years, the trial court identified five aggravating cireumstances: (1) the risk that Riehle would commit another crime, as supported by the tape recorded conversation with Lataille; (2) uncharged allegations that Riehle has engaged in sexual activity with children in the past; 3) the heinous nature and the circumstances of the crime involved based upon the significant planning involved in carrying out these erimes and Richle's violation of trust with K.R.; (4) Riehle's need of correctional or rehabilitative treatment that can best be provided in a penal facility; and (5) the substantial psychological damage caused to K.R. beyond that normally expected. The trial court found the following two miti-gators: (1) Riehle's lack of criminal history; and (2) his gainful employment.
Unlike the majority, I find that based upon the evidence before this court, the jury properly found the existence of the aggravating factor that Riehle would commit another crime. At trial, the trial court properly admitted a tape recorded conversation between Richle and Lataille, a police informant. In this recording, Richle admitted to fondling K.R.'s buttocks and rubbing her vagina with his leg. He also told Lataille that he looked forward to KR. having pubic hair, and that he could "get in her pants" anytime he wanted to. (State's Ex. 15). Moreover, during this conversation, Richle stated his intention that when K.R. would be twelve to fifteen years old, he would have a "piece of ass" and that he would "mount that son of a butt right and left" as long as K.R. kept quiet. (State's Ex. 15). Additionally, *300Richle agreed to set up a sexual encounter between Lataille and KR.
Thus, by introducing Riehle's admissions of his past criminal behavior and his clear intention to commit further criminal acts in the future, the State submitted the fact of Riehle's lack of future law abiding behavior to the jury. In turn, the jury, by finding Riehle guilty for child molesting as a Class A felony (deviate sexual conduct), conspiracy to commit child molesting as a Class A felony, child molesting as a Class C felony (touching and fondling), and conspiracy to commit child molesting as a Class C felony, properly considered Richle's admissions and found them justified. Therefore, given Blakely's clear language that "[oJther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt," I find that the aggravator that Riechle would commit a future crime was properly submitted to the jury and proven beyond a reasonable doubt by the jury's guilty verdict on these particular Counts. Id.
However, I concur with the majority that the remaining four aggravators are invalid in light of Blakely. Nonetheless, if one or more aggravating circumstances cited by the trial court are found invalid on appeal, we must next decide whether the remaining cireumstance or cireumstances are sufficient to support the sentence imposed. See Patrick v. State, 819 N.E.2d 840, 848 (Ind.Ct.App.2004). As we explained in Means v. State, 807 N.E.2d 776, 778 (Ind.Ct.App.2004), trans. denied:
Even one valid aggravating circumstance is sufficient to support an enhancement of a sentence. When the sentencing court improperly applies an aggravating circumstance but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. This occurs when the invalid ag-gravator played a relatively unimportant role in the trial court's decision. When a reviewing court "can identify sufficient aggravating circumstances to persuade it that the trial court would have entered the same sentence even absent the impermissible factor, it should affirm the trial court's decision." When a reviewing court "cannot say with confidence that the impermissible aggravators would have led to the same result, it should remand for re-sentencing by the trial court or correct the sentencing on appeal."
Here, I identified one valid aggravator: the risk of committing a future crime. The trial court also found two mitigators: (1) Riehle' lack of prior eriminal history, and (2) his gainful employment. In its sentencing statement, the trial court determined the aggravators to be significant enough to not only aggravate the sentence, but to run the sentences consecutively.
Given the importance of the remaining aggravator and the insignificance of the mitigating cireumstances, I refuse to hold that the trial court would have fimposed a different sentence. See id. Therefore, I find that the trial court did not err by imposing an enhanced sentence. Accordingly, I disagree with the result reached by the majority.