Attorneys for Appellant Attorney for Appellee
Neil L. Weisman Steve Carter
South Bend, Indiana Attorney General of
Indiana
Nicole M. Schuster
Deputy Attorney General
____________________________________________________________________________
__
In the
Indiana Supreme Court
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No. 71S03-0503-CR-115
Jason Patrick,
Appellant (Defendant below),
v.
State Of Indiana,
Appellee (Plaintiff below).
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Appeal from the St. Joseph Superior Court, No. 71D02-0207-MR-14,
The Honorable John Marnocha, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 71A03-0407-
CR-312
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May 10, 2005
Per Curiam.
Jason Patrick pleaded guilty to Murder, Class B felony Battery, and Class C
Criminal Confinement.[1] Following a sentencing hearing at which the trial
court identified certain aggravating and mitigating circumstances, the
trial court sentenced Patrick to 65 years for Murder, 20 years for Battery,
and 8 years for Criminal Confinement, all to be served consecutively. This
represented the maximum allowable combined aggregate term available.
The Court of Appeals reversed. Patrick v. State, 819 N.E.2d 840 (Ind.
Ct. App. 2004). It held Patrick’s sentence violated the Sixth Amendment to
the United States Constitution because some of the aggravating
circumstances found by the trial court were not based on facts found to
exist by a jury. See id. at 847-51 (discussing Patrick’s sentence in light
of Blakely v. Washington, 124 S. Ct. 2531 (2004)). The Court of Appeals
remanded the case “for resentencing in light of the valid aggravators and
mitigators.” Patrick, 819 N.E.2d at 850; see also id. at 850 n.6
(rejecting State’s request that case be remanded “for a jury determination
on the aggravating circumstances” and instead remanding “for re-sentencing
[by the trial court] in light of the remaining aggravating factors”).
The Court of Appeals correctly decided Patrick must be resentenced in
light of Blakely. See Smylie v. State, 823 N.E.2d 679 (Ind. 2005). The
Court of Appeals was incorrect, however, in ordering the trial court to
resentence Patrick only in light of the aggravating factors that did not
require a jury determination under Blakely. Those aggravating factors were
invalid only because the facts underlying them had not been found by a
jury, a defect that can be cured by a new sentencing hearing at which a
jury determines whether the facts underlying those aggravating
circumstances exist.
Accordingly, “[w]e reverse that part of [Patrick’s] sentence that
enhances the standard penalty and remand for a new sentencing hearing in
which the State may elect to prove adequate aggravating circumstances
before a jury or accept the statutory fixed term.” Smylie, 823 N.E.2d at
691. As a third option, the State may elect to forgo the empanelling of a
jury and stipulate to Patrick’s being resentenced by the trial court only
in light of the aggravating factors for which a jury determination is
unnecessary under Blakely and Smylie. The Court of Appeals’ opinion,
except as noted herein,[2] is otherwise summarily affirmed. Ind. Appellate
Rule 58(A)(2).
All justices concur.
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[1] Murder carries a presumptive sentence of 55 years and up to 10
additional years for aggravating circumstances. See Ind. Code § 35-50-2-
3(a). A Class B felony carries a presumptive sentence of 10 years and up
to 10 additional years for aggravating circumstances. See Ind. Code § 35-
50-2-5. A Class C felony carries a presumptive sentence of 4 years and up
to 4 additional years for aggravating circumstances. Ind. Code § 35-50-2-
6(a).
[2] Judge Najam’s opinion in Patrick holds that “the fact that the
defendant was on probation at the time he committed the instant offense is
derivative of the defendant’s criminal history and, therefore, proper under
Blakely.” Patrick, 819 N.E.2d at 847. His opinion notes, however, a split
within the Court of Appeals on this issue. See id. at 847-48 (discussing
Bledsoe v. State, 815 N.E.2d 507, 508 (Ind. Ct. App. 2004), and Teeters v.
State, 817 N.E.2d 275, 279 (Ind Ct. App. 2004)). Judge Vaidik’s
concurrence expressly disagreed with this portion of Judge Najam’s opinion,
see id. at 850-51 (Vaidik, J., concurring in part), and Chief Judge
Kirsch’s concurrence in part and dissent in part does not express agreement
or disagreement on this point. Accordingly, Patrick does not constitute a
majority opinion on whether a defendant’s probation status at the time he
commits a crime is or is not a fact that must be determined by a jury per
Blakely, and we reserve for another day an explicit determination on that
issue.