I concur in part and dissent in part. I concur with the majority opinion that finds Williams' sentence was properly enhanced because it did not violate his Sixth Amendment right to a jury to determine the aggravating facts as required under Blakety v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 408 (2004).
I dissent to the majority opinion that finds his sentence inappropriate under Ind. Appellate Rule 7(B). Williams alleges that the trial court failed to identify or find mitigating circumstances even though there was evidence in mitigation presented to the trial court. When this occurs, the defendant must establish that the mitigating circumstances are both significant and clearly supported by the record. Pennington v. State, 821 N.E.2d 899, 905 (Ind. Ct.App.2005).
Even though Williams entered a guilty plea, he has made no demonstration on the record that the State received a substantial benefit and thus the trial court did not abuse its discretion when it failed to address Williams' guilty plea as a mitigating circumstance.
The connection between Williams' mental illness and this offense is not clearly supported by the record. The mere fact that he was diagnosed with mental retardation does not equate to being a mitigating circumstance.
I would affirm the trial court.
OPINION ON REHEARING
April 11, 2006
We grant rehearing in this case solely to clarify our opinion in light of the arguments made by the State in support of its petition for rehearing. In all other respects, we reaffirm our original opinion.
In our opinion, we held that Williams's guilty plea and mental illness were each entitled to "some" mitigating weight. Williams v. State, 840 N.E.2d 483, 439 (Ind. Ct. App. 2006). We later stated: "In light of the significant mitigating weight due to Williams's guilty plea and documented mental illness, we must conclude that a maximum eight-year sentence is inappropriate." Id. at 440. In the interests of clarity and precision, we grant the State's Petition for Rehearing for the limited purpose of striking the words "significant" and "due to" and replacing them with the words "combined" and "of," respectively. Thus, the statement shall now read: "In light of the combined mitigating weight of Williams's guilty plea and documented mental fllness, we must conclude that a maximum eight-year sentence is inappropriate."
*441In all other respects, the State's Petition for Rehearing is denied.
BAKER, J., concurs.
RILEY, J., deny petition.