ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kenneth R. Martin Steve Carter
Goshen, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
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In the
Indiana Supreme Court
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No. 20S04-0511-CR-611
JOSEPH KINCAID,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Elkhart Superior Court, No. 20D03-0212-FB-224,
The Honorable George W. Biddlecome, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 20A04-0410-CR-560
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November 29, 2005
Sullivan, Justice.
Joseph Kincaid was convicted of two counts of battery, both Class B felonies, for
fracturing the skull of and causing other serious injuries to his infant son. He was sen-
tenced to 20 years in prison, the maximum sentence. 1 Kincaid v. State, No. 20A04-0410-
1
The trial court’s sentencing order imposed concurrent sentences of 20 years on each count and
“order[ed] that the convictions . . . merge.” Appellant’s App. at 411. We infer that the trial court
CR-560, slip op. at 6 (Ind. Ct. App. June 21, 2005). His appeal raised multiple issues,
including a claim that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004),
a case decided by the Supreme Court two weeks before Kincaid’s sentencing hearing.
Kincaid, slip op. at 19-21. 2 The Court of Appeals held Kincaid’s Blakely claim forfeited
on appeal because Kincaid did not raise a Blakely objection at the sentencing hearing and
thus did not preserve the issue for appeal. Id. at 21.
While it is, of course, true that a claim is not normally available for review on ap-
peal unless first made at trial, this Court and the Court of Appeals reviews many claims
of sentencing error (improper consideration of an aggravating circumstance, failure to
consider a proper mitigating circumstance, inaccurate weighing of aggravating and miti-
gating circumstances, etc.) without insisting that the claim first be presented to the trial
judge. On the other hand, an appellant in a criminal case must raise a particular sentenc-
ing claim in his or her initial brief on direct appeal in order to receive review on the mer-
its.
Kincaid raised a Blakely claim in his initial appellate brief and so met this re-
quirement.
Although not directly applicable to this case, we observe that, for Blakely claims,
we have relaxed the rule that a particular sentencing claim must be raised in an appel-
lant’s initial brief on direct appeal in order to receive review on the merits. Smylie v.
State, 823 N.E.2d 679, 689-90 (Ind. 2005). For cases in which the appellant’s initial brief
on direct appeal was filed prior to the date of the Smylie decision (March 9, 2005), an
meant by this to enter judgment of conviction on both counts and sentence Kincaid to 20 years on
each count, the two sentences to be served concurrently.
2
The Court of Appeals rejected Kincaid’s contentions that there had been insufficient evidence
presented at trial to sustain his convictions and that the trial court had been wrong to refuse him
permission to demonstrate how the child’s injuries occurred. We summarily affirm the Court of
Appeals as to these issues. Ind. Appellate Rule 58(A). Kincaid also contended that the trial court
considered improper or gave improper weight to aggravating circumstances, that the trial court
failed to give proper weight to a mitigating circumstance, and that the sentence imposed was in-
appropriate in light of the nature of the offense and the character of the offender. We direct the
Court of Appeals to reconsider these issues on remand in connection with the Blakely claim.
2
appellant who had contested his or her sentence in some respect in the appellant’s initial
brief on direct appeal is entitled to review on the merits of a subsequently-raised Blakely
claim. (The keys here are that (1) some sentencing claim must have been raised in the
appellant’s initial brief on direct appeal 3 and (2) the appellant must have added a Blakely
claim by amendment, on petition for rehearing, or on petition to transfer.) For cases in
which the appellant’s initial brief was filed after the date of the Smylie decision, a spe-
cific Blakely claim must be made in the appellant’s initial brief on direct appeal for it to
be reviewed on the merits.
As already noted, Kincaid’s initial brief was filed after the date of the Blakely de-
cision and, as required for it to be reviewed on the merits, a specific Blakely claim was
made in his initial brief on direct appeal. We grant transfer, summarily affirm the deci-
sion of the Court of Appeals as to the issues discussed in Footnote 2, and remand this
case to the Court of Appeals for consideration of and ruling on Kincaid’s sentencing
claims. See Footnote 2.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
3
See Aguilar v. State, 827 N.E.2d 31 (Ind. 2005) (stating that the Blakely claim was not available
because appellant failed to make any challenge to the sentence until after the Court of Appeals
had issued a ruling on the merits); Nesbitt v. State, 827 N.E.2d 33 (Ind. 2005) (stating that the
Blakely claim was not available because appellant failed to make any challenge to the sentence
whatsoever).
3