Attorney for Appellant Attorneys for Appellee
Kathleen M. Sweeney Steve Carter
Indianapolis, IN Attorney General of Indiana
Matthew D. Fisher
Deputy Attorney General
Indianapolis, IN
In the
Indiana Supreme Court
_________________________________
No. 49S02-0505-CR-242
Michael J. Williams,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the Marion Superior Court, No. 49G01-0201-FB-9638
The Honorable Tanya Walton Pratt, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0405-
CR-382
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May 25, 2005
SHEPARD, Chief Justice.
The trial court ordered concurrent, enhanced sentences on two counts
using aggravating circumstances that must be found by a jury under Blakely
v. Washington. Rather than remand for jury sentencing procedures, we
direct that the trial court enter consecutive standard terms.
Facts and Procedural History
Williams and four cohorts severely beat two men at an Indianapolis
apartment complex in the early morning hours of January 1, 2002. The jury
found him guilty of class B felony aggravated battery and class D felony
criminal confinement.
In sentencing Williams, the trial court found two aggravating
circumstances: 1) the nature and circumstances of the crime -- heinous
beatings resulting in severe injuries -- and 2) Williams’ character,
particularly his unwillingness to cooperate in prosecuting the remaining
perpetrators. (Tr. at 415-16.) The court stated specifically, “[y]ou’re
not willing to cooperate and bring some justice to what happened to this
young man.” (Tr. at 416.) It found his lack of a criminal history as a
mitigating circumstance. (Tr. at 415.) It sentenced Williams to twelve
years for aggravated battery, two years over the presumptive “fixed term,”
and three years for criminal confinement, one and a half years over the
presumptive term. It ordered these to be served concurrently. Ind. Code
Ann. § 35-50-2-5, 7 (West 2004).
The Court of Appeals affirmed Williams’ conviction and sentence,
holding among other things that he had waived any claim under Blakely v.
Washington, 542 U.S. __, 124 S.Ct. 2531 (2004), by not objecting to his
sentence at trial. Williams v. State, No. 49A02-0405-CR-00382, slip op. at
14, 18 (December 16, 2004).
We grant transfer because Williams preserved a Blakely claim by
challenging his sentence in his initial appellate brief. See Smylie v.
State, 823 N.E.2d 679, 690-91 (Ind. 2005). The Court of Appeals correctly
rejected William’s other claims, and we summarily affirm their disposition
of them. Ind. Appellate Rule 58(A).
Blakely Violation and Sentencing Remedy
Williams’ enhanced sentences were based on aggravating factors that
were neither prior convictions, nor reflected in the jury’s verdict, nor
admitted by Williams. The enhancements thus violated Williams’ right to a
jury trial under the Sixth Amendment. Blakely, 542 U.S. at __, 124 S.Ct.
at 2536-37, 2541. In light of this violation, we perceive two possible
remedies available as an appellate disposition.
We could remand with instructions to impose the presumptive terms of
ten years for aggravated battery and one and a half years for criminal
confinement, unless the State elects to prove aggravating circumstances
before a jury. The State would probably reap minimal return on investment
by choosing to do so as compared, say, to seeking standard sentences served
consecutively, which the court could properly order with the aggravators it
previously found. Smylie, 823 N.E.2d at 686.
Or we could alter the sentences ourselves within the bounds of Blakely
using our review and revise power. This authority flows from Article 7
Section 4 of the Indiana Constitution,[1] which was among the 1970
amendments. See Cooper v. State, 540 N.E.2d 1216, 1218 (1989). As we
observed in Cooper, the Judicial Study Commission issued a report
describing its proposed constitutional reforms and explaining that the
commission supported review and revise power for Indiana’s appellate courts
after studying the efficacious use of the power in the Court of Criminal
Appeals in England. Id. (citing Report of the Judicial Study Commission
140 (1967)). The commission relied on an English statute granting the
power to review and revise, which stated:
On appeal against sentence the Court of Criminal Appeal shall,
if they think that a different sentence should have been passed,
quash the sentence passed at the trial, and pass such other
sentence warranted in law by the verdict (whether more or less
severe) in substitution therefor as they think ought to have
been passed, and in any other case shall dismiss the appeal.
Criminal Appeal Act, 1907, 7 Edw. 7, ch. 23, § 4(3).
The current articulation of the standard under which we exercise this
power is: “The Court may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Ind. Appellate Rule 7(B) (adopted February 4,
2000).
We conclude that the trial judge was warranted in finding that the
brutality of the beatings -- one victim spent some twenty-two days in a
coma and suffered severe brain damage -- was an aggravating circumstance.
(Tr. at 168-74, 415.) It adequately supports ordering consecutive
sentences. Smylie, 823 N.E.2d at 686 (aggravators requiring jury finding
to support enhancement may be found by court for purposes of consecutive
sentences).
Conclusion
We vacate the enhanced sentences for each crime and order consecutive
sentences of ten years for aggravated battery and one and a half years for
criminal confinement.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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[1] “The Supreme Court shall have, in all appeals of criminal cases, the
power to review all questions of law and to review and revise the sentence
imposed.” Ind. Const. art. VII, § 4.
Williams v. State
Combined Opinion