Ramon v. State

ROBB, Judge,

dissenting.

I respectfully dissent from the majority’s conclusion that the application of the amended version of Indiana Code section 35-34-1-5 does not violate the prohibition of ex post facto laws as applied to Ramon.

Generally, “criminal proceedings [are] governed by the statutory provision in effect at the time of the offense.” Mudd v. State, 483 N.E.2d 782, 785 (Ind.Ct.App.1985); see also Gutermuth v. State, 868 N.E.2d 427, 431 n. 4 (Ind.2007) (noting “the long-standing rule that the sentencing statute in effect at the time a crime is committed governs the sentence for that crime”). However, I recognize that certain statutory amendments affecting criminal procedure do not affect a defendant’s substantial rights and therefore do not violate the ex post facto clause. See Watts v. State, 229 Ind. 80, 92 95 N.E.2d 570, 575 (1950); Iseton v. State, 472 N.E.2d 643, 651 (Ind.Ct.App.1984) (statutory amendment providing for six-person jury did not violate ex post facto clause, as “no substantial right was affected”).

Although the majority opinion seems to imply that an essential inquiry is determining whether the amended statute is procedural or substantive, our supreme court has recognized that the prohibition of ex post facto laws “is not limited to substantive statutes, as some cases have previously held.” Stroud v. State, 809 N.E.2d 274, 288 (Ind.2004); see also Collins v. Youngblood, 497 U.S. 37, 46, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (“[S]imply by labeling a law ‘procedural,’ a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause.”); Watts, 229 Ind. at 92, 95 N.E.2d at 575 (“Where a law relates to a matter of procedure only, and no substantial right is taken away, it is not ex post facto.” (emphasis added)). Instead, “[a]n ex post facto law is one which applies retroactively to disadvantage an offender’s substantial rights.” Armstrong v. State, 848 N.E.2d 1088, 1092 (Ind.2006), cert. denied, — U.S. -, 127 S.Ct. 513, 166 L.Ed.2d 370 (2006). Stated another way, “[a] law is ex post facto if it ‘substantially disadvantage[s][a] defendant because it increase[s] his punishment, ehange[s] the elements of or ultimate facts necessary to prove the offense, or deprive[s][a] defendant of some defense or lesser punishment that was available at the time of the crime.’ ” Stroud, 809 N.E.2d at 288 (quot*257ing Crawford v. State, 669 N.E.2d 141, 150 (Ind.1996)). The fundamental inquiry is whether the retroactive law alters a defendant’s substantial right. See Weaver v. Graham, 450 U.S. 24, 29 n. 12, 101 S.Ct. 960, 67 L.Ed.2d 17 (“Alteration of a substantial right, however, is not merely procedural, even if the statute takes a seemingly procedural form.”); id. at 30 n. 13, 101 S.Ct. 960 (noting that an ex post facto analysis “is concerned solely with whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred”).

Here, the statute in place at the time of Ramon’s offense, and through much of the pre-trial proceedings, provided a procedural bar to the State’s ability to amend charging informations as to matters of substance after a certain point, namely, thirty days prior to the omnibus date. I find this situation analogous, although perhaps not identical, to situations involving amendments to statutes of limitations, which also constitute procedural bars to a state’s ability to levy charges against a defendant. An amendment to a statute of limitations does not violate the prohibition against ex post facto laws if the amendment was made prior to the running of the statute of limitations in place at the time the defendant committed the crime. See United States v. Gibson, 490 F.3d 604, 609 (7th Cir.2007) (“[I]t is well settled law that applying procedural statutes ..., which effectively enlarge! ] the limitations period, does not violate the ex post facto clause so long as the statute is passed before the given prosecution is barred.”), cert. denied, — U.S. -, 128 S.Ct. 1646, 170 L.Ed.2d 353 (U.S., 2008); Minton v. State, 802 N.E.2d 929, 934-35 (Ind.Ct.App.2004), trans. denied. However, when the statute is passed after the given prosecution is barred, the statute violates the prohibition against ex post facto laws as applied to that defendant. Stogner v. California, 539 U.S. 607, 632-33, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003) (concluding that “a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution”); State v. Garcia, 285 Kan. 1, 169 P.3d 1069, 1075 (2007) (holding that the application of a statute of limitations violated the ex post facto clause as applied to the defendant, as it “resurrects a previously time-barred prosecution”).

Here, the State’s ability to amend the charging information to charge Ramon with Class A felonies, instead of Class B felonies, was foreclosed at the time the legislature amended section 35-34-1-5. See Fajardo, 859 N.E.2d at 1208. Thus, as in the statute of limitations cases, the amended statute permitted “punishment that the [trial court] lacked the power to impose at the time the legislature acted.” Stogner, 539 U.S. at 615, 123 S.Ct. 2446. Indeed, at the time the legislature acted, the trial court had already specifically found that the State’s amended informa-tions were not timely and were therefore barred. Therefore, by applying the amended version of the statute to Ramon’s situation, the trial court impermissibly allowed the State to “resurrect an expired criminal charge.” United States v. Leo Sure Chief, 438 F.3d 920, 924 (9th Cir.2006). As Judge Learned Hand explained:

Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and -thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it ex*258tended beyond the time first set, or, if it does, the stake forgives it.

Falter v. United States, 23 F.2d 420, 425-26 (2d Cir.1928). Here, as the time in which the State was permitted to amend the charging information as to matters of substance had expired, Ramon rightly should have been able to assume that he was safe from the State’s pursuit of additional or enhanced charges within the instant suit. Allowing the legislature’s amendment to deprive Ramon of a valid defense he had against the State’s addition of charges strikes me as fundamentally unfair, and I conclude that it violates of the prohibition of ex post facto laws. Therefore, I would reverse Ramon’s convictions on counts 1, 2, and 3, and remand with instructions that the trial court enter judgments of conviction on these counts as Class B felonies and sentence Ramon accordingly.

Given my resolution of this issue, I would not reach Ramon’s sentencing argument. However, I am troubled by the majority’s discussion of Ramon’s criminal history, which appears to consist of a single conviction of fraud. Our supreme court has established a standard for assessing a defendant’s criminal history; such history “is measured by the number of prior convictions and their gravity, by their proximity or distance from the present offense, and by any similarity or dissimilarity to the present offense that might reflect on a defendant’s culpability.” Bryant v. State, 841 N.E.2d 1154, 1156 (Ind.2006). I find this conviction unrelated in nature or seriousness when compared to Ramon’s instant offenses. Under the presumptive sentencing scheme, it was a well-established rule that a relatively minor and unrelated criminal history was not a significant aggravating circumstance that would support an enhanced sentence. See Taylor v. State, 840 N.E.2d 324, 341 (Ind.2006); Ruiz v. State, 818 N.E.2d 927, 929 (Ind.2004); Vasquez v. State, 762 N.E.2d 92, 97 (Ind.2001) (“[0]ne prior conviction for driving while intoxicated ‘is not a significant aggravator’ in the context of determining sentence for a murder conviction.” (quoting Wooley v. State, 716 N.E.2d 919, 929 (Ind.1999))); Wooley, 716 N.E.2d at 929; Roney v. State, 872 N.E.2d 192, 203-04 (Ind.Ct.App.2007) (holding previous conviction of forgery should not be considered a significant aggravating circumstance in the context of a defendant convicted of murder), trans. denied; Traylor v. State, 817 N.E.2d 611, 622 (Ind.Ct.App.2004), trans. denied. However, I recognize that under the advisory sentencing scheme, we no longer review the weight given to aggravating circumstances in regard to a given sentence, and that a defendant may challenge aggravators only to the extent that they are not supported by the record or are “improper as a matter of law.” See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007), clarified on reh’g, 875 N.E.2d 218. Our supreme court has indicated that a minor and non-related criminal history, although not a significant aggravator, is not an improper aggravator. See Taylor v. State, 840 N.E.2d 324, 341 (Ind.2006) (“While Taylor’s prior criminal history is a valid aggravating circumstance, it would not support a maximum sentence because the crimes were not particularly grave or related to his murder conviction.”). Therefore, although I recognize the apparent incongruity between stating that a trial court is required to identify only “significant” aggravating and mitigating circumstances, see Anglemyer, 868 N.E.2d at 490, but finding an abuse of discretion regarding the finding of aggravating circumstances only when they are “improper as a matter of law,” I must agree that a trial court cannot be said to have abused its discretion by identifying a *259minor and unrelated criminal history as a reason for ordering a particular sentence.

However, the recent changes in our sentencing laws had no impact on a trial court’s decision regarding whether to order a defendant’s sentences to run consecutively or concurrently. See Neff v. State, 849 N.E.2d 556, 562 (Ind.2006) (holding that aggravators that are invalid under Blakely8 may be used to impose consecutive sentences); cf. Anglemyer, 868 N.E.2d at 490 (“We hasten to reiterate that the 2005 amendments were designed to rectify the Sixth Amendment problem that Blakely presented. We discern no legislative intent otherwise to alter fundamentally the trial procedure for sentencing criminal defendants.”). A criminal history is not always an aggravating circumstance sufficient by itself to support consecutive sentences. Cf. Bryant, 841 N.E.2d at 1158 (“We conclude that the simple fact of a criminal history, when taken into consideration with a factor that demonstrates some increased degree of culpability such as lying in wait, is sufficient to support the decision to impose consecutive sentences.” (Emphasis added.)); Frentz v. State, 875 N.E.2d 453, 470 (Ind.Ct.App.2007) (analyzing the weight of a defendant’s criminal history before holding the aggravator sufficient to support consecutive sentences), trans. denied. For example, the sole aggravating circumstance of an insignificant criminal history along with significant mitigating circumstances would not support consecutive sentences. Cf. Wentz v. State, 766 N.E.2d 351, 359 (Ind.2002) (recognizing that where the trial court finds the weight of the aggravators and mitigators to balance, it may not impose consecutive sentences). Therefore, I disagree with the majority’s implication that Ramon’s criminal history, standing alone, would support consecutive sentences. However, as other aggravating circumstances exist, I agree that the trial court had a sufficient basis to support consecutive sentences. See Bryant, 841 N.E.2d at 1158.

Also, the change in Indiana’s sentencing statutes did not affect our ability to review and revise sentences under Indiana Appellate Rule 7(B). See Anglemyer, 868 N.E.2d at 491 (“Although a trial court may have acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution ‘authorize independent appellate review and revision of a sentence imposed by the trial court.” (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006))). The standard established by our supreme court for analyzing a defendant’s criminal history, although not relevant when determining whether the trial court abused its discretion, remains applicable to our analysis of the defendant’s character. That is, although all criminal histories are equal for purposes of abuse of discretion review, such is not the case for Rule 7(B) analysis. As “the advisory sentence is the starting point in our consideration of an appropriate sentence for the crime committed,” Gervasio v. State, 874 N.E.2d 1003, 1005 (Ind.Ct.App.2007), a criminal history deemed insignificant under the applicable standard, by itself, should not render a sentence in excess of the advisory appropriate. See Duncan v. State, 857 N.E.2d 955, 960 (Ind.2006) (analyzing the defendant’s sentence under Rule 7(B) and recognizing that the defendant’s “prior convictions and charges were neither sufficiently weighty or similar to the current offense to justify enhancing the sentence.”); Prickett v. State, 856 N.E.2d *2601203, 1209 (Ind.2006) (citing Rule 7(B), and then “recognizing that a defendant’s criminal history can be a valid aggravating circumstance, [but] we find that it is of little weight in the instant case”).

Although I would not consider Ramon’s insignificant criminal history as a justification for his sentence, I agree with the remainder of the majority’s analysis under Rule 7(B), and, if I reached this issue, would also conclude that Ramon has failed to meet his burden of persuading this court that his sentence is inappropriate given the nature of the offenses and his character.

. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (holding that any fact used to enhance a sentence above the statutory maximum must be either admitted by the defendant or found by the trier of fact beyond a reasonable doubt).