Attorney for Appellant
Attorneys for Appellee
Matthew D. Soliday Steve Carter
Valparaiso, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Smith was charged with criminal deviate conduct, attempted rape, criminal confinement, intimidation, and
battery. A jury found him not guilty of criminal deviate conduct, but
guilty of all other charges. Under the terms of Indianas Repeat Sexual
Offender Statute, Indiana Code Section 35-50-2-14, to be discussed in detail infra, the
trial court found Smith to be a repeat sexual offender based on two
prior unrelated rape convictions. The court overruled Smiths challenge to the constitutionality
of the Repeat Sexual Offender Statute, sentenced Smith to 20 years on the
underlying convictions, and added 10 years based on his repeat sexual offender status,
for a total of 30 years in the Indiana Department of Correction.
Smith appealed his convictions and sentence. He contended that the trial court
committed reversible error by instructing the jury that the uncorroborated testimony of one
witness was sufficient to sustain a conviction, in violation of our opinion in
Ludy v. State, 784 N.E.2d 459 (Ind. 2003). Arguing that Indiana and
United States Constitutions require the jury to determine any facts that provide the
basis for an enhanced sentence, Smith also asserted that it was unconstitutional for
the court, rather than the jury, to find him to be a repeat
sexual offender. The Court of Appeals affirmed Smiths convictions, but vacated his
repeat sexual offender adjudication and sentence enhancement, finding that Indiana Code Section 35-50-2-14
violated the Indiana Constitution. Having found the statute unconstitutional on state grounds,
it did not need to, and did not address, the federal issue.
Smith v. State, 804 N.E.2d 1246 (Ind. Ct. App. 2004).
Both parties sought transfer, Smith asking us to review the Ludy issue
See footnote and
the State as
king us to examine the constitutional claim. We now grant
transfer, Ind. Appellate Rule 58(A), and affirm the judgment of the trial court.
(b) After a person has been convicted and sentenced for a felony committed after
sentencing for a prior unrelated felony conviction under IC 35-42-4-1 through IC 35-42-4-9
or IC 35-46-1-3, the person has accumulated one (1) prior unrelated felony conviction.
However, a conviction does not count for purposes of this subsection, if:
(1) it has been set aside; or
it is one for which the person has been pardoned.
(c) The court alone shall conduct the sentencing hearing under IC 35-38-1-3.
(d) A person is a repeat sexual offender if the court finds that the
state has proved beyond a reasonable doubt that the person had accumulated one
(1) prior unrelated felony conviction under IC 35-42-4-1 through IC 35-42-4-9 or IC
(e) The court may sentence a person found to be a repeat sexual offender
to an additional fixed term that is the presumptive sentence for the underlying
offense. However, the additional sentence may not exceed ten (10) years.
Ind. Code § 35-50-2-14 (2004).
Smith argues that the statute is unconstitutional under Article I, Section 19, of the Indiana Constitution, which provides, In all criminal cases whatever, the jury shall have the right to determine the law and the facts. Ind. Const. art. I, § 19. Smith bases this argument largely on our holding in Seay v. State, 698 N.E.2d 732 (Ind. 1998). He also contends that the statute violates the Sixth Amendment to the United States Constitution as interpreted by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny.
The State maintains that the Repeat Sexual Offender Statute is constitutional under both
the Indiana and United States Constitutions. The State argues that the Court
of Appeals misapplied and misinterpreted Seay and that the statute meets an exception
to the general rule of Apprendi.
The somewhat subtle point at stake in Seay was whether the jury had
the freedom to determine that Seay was not a habitual offender even if
it found that the State had proved beyond a reasonable doubt that he
had accumulated the requisite prior felony convictions. Finding that the Legislature intended
for the jury to make a determination beyond the factual findings on the
habitual offender status, we held that [t]he jury was the judge of both
the law and facts as to that issue and it was error to
instruct the jury otherwise. Id. at 737.
As is clear from the text of the Repeat Sexual Offender Statute set
forth supra, the Legislature has not provided that determination of this status be
submitted to the jury. Smiths argument is that the failure to allow
the jury to find [his] status as a non-habitual offender directly contradicts the
holding in Seay. Br. of Appellant at 10. Acknowledging that the
right to have repeat sexual offender status determined by a jury has not
yet been decided by this Court, Smith contends that [t]he fact that the
right has been extended in all other habitual offender cases, coupled with Article
[I, Section] 19, which makes cases such as Seay applicable to all criminal
cases whatever, results in an error for failure to extend the right to
Smith during his trial. Id. at 11.
We disagree with Smiths application of Seay. As just noted, the Habitual
Offender Statute at issue in Seay specifically assigned to the jury the duty
to determine the status of a habitual offender. This Court in Seay
recognized the importance that the Legislature placed on the jury determination of habitual
If the legislature had intended an automatic determination of habitual offender status upon the finding of two unrelated felonies, there would be no need for a jury trial on the status determination. In this case, what was at issue was the jurys ability to find Seay to be a habitual offender (or not to be a habitual offender) irrespective of the uncontroverted proof of prior felonies.
Seay, 698 N.E.2d at 736-37 (citation and footnote omitted). Again, at issue in Seay was whether the Legislature had entrusted the jury with determining whether the defendant was a habitual offender or merely whether he had committed the predicate offenses. The case did not speak to the issue Smith raises: whether the Constitution requires such a determination to be made by the jury at all.
The paragraph quoted above from Seay certainly suggests that under Article I, Section 19, the Legislature could structure an automatic sentencing enhancement scheme without a jury trial on the status determination. That is what we believe the Legislature has done in the case of the Repeat Sexual Offender Statute. See footnote And we hold that Article I, Section 19, of the Ind iana Constitution so permits.
In a moment, we will turn our attention to Apprendi in which the
United States Supreme Court held that the Sixth Amendment right to trial by
jury (applied to the states through the Due Process Clause of the Fourteenth
Amendment), required that a jury make the factual determination of authorizing an increase
in the maximum prison sentence. Smith makes no claim that his right
to trial by jury under Article I, Section 13, of the Indiana Constitution
has been violated, and we express no opinion with respect thereto.
We agree with the States contention.
Apprendi, of course, was the first of several cases over the last five
years in which a narrowly divided United States Supreme Court has provided guidance
as to the respective roles that the Sixth and Fourteenth Amendments allocate to
the judge and jury in criminal sentencing. In Apprendi, the defendant had
fired several bullets into the home of an African-American family. Id. at
469. He pled guilty to weapons possession charges. Id. at 469-70.
The trial court, finding by a preponderance of the evidence that the
shooting was racially motivated, increased Apprendis sentence under New Jerseys hate crime statute.
Apprendi appealed, arguing that the Due Process Clause of the United States
Constitution requires that the finding of bias upon which his hate crime sentence
was based must be proved to a jury beyond a reasonable doubt.
Id. at 471. The United States Supreme Court agreed that the Sixth
and Fourteenth Amendments required that a jury must make the determination as to
whether the shooting was racially motivated. The Courts holding specified: Other than
the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt. Id. at 490 (emphasis added).
The Court has recited this same formulation in its more recent cases, United
States v. Booker, 125 S. Ct. 738, 746 (2005) (Scalia, J.), and Blakely
v. Washington, 124 S. Ct. 2531, 2536 (2004).
But neither Apprendi, Blakely, nor Booker have actually involved a fact of a
prior conviction and so the High Court itself has had no occasion to
explore the phrases meaning. The fact of a prior conviction language was
included in Apprendi because the Apprendi Court was required to distinguish its relatively
recent decision in the case of Almendarez-Torres v. United States, 523 U.S. 224
(1998). Almendarez-Torres involved a challenge to the constitutionality of a statute that
authorized a substantially increased prison sentence for an alien who illegally returned to
the United States after having been deported when the initial deportation was subsequent
to a conviction for commission of specified aggravated felonies. Almendarez-Torres admitted that
he had been deported, that he later unlawfully returned to the United States,
and that his deportation had taken place subsequent to three earlier convictions for
aggravated felonies. Id. at 227. However, he argued that given his
Fifth Amendment right to indictment by a grand jury, the court could not
impose an increased sentence because an indictment must set forth all the elements
of a crime and his indictment had not mentioned his earlier aggravated felony
convictions. Id. (citation omitted).
The Almendarez-Torres Court concluded that the fact of a prior conviction was a
sentencing factor, rather than a separate crime, and so there was no requirement
for the prior convictions to be stated in the indictment. Id. at
226. The Court said:
[L]ower courts have almost uniformly interpreted statutes (that authorize higher sentences for recidivists) as setting forth sentencing factors, not as creating new crimes (at least where the conduct, in the absence of the recidivism, is independently unlawful). And we have found no statute that clearly makes recidivism an offense element in such circumstances.
Id. at 230 (citations omitted).
Almendarez-Torres, therefore, presented the following question for the Apprendi Court: if the sentencing factor at issue in Almendarez-Torres did not constitute a separate element of a crime for constitutional purposes, then why did the sentencing factor at issue in Apprendi do so? Because the sentencing factor at issue in Almendarez-Torres was the fact of a prior conviction, the Apprendi Court was able to say that
[b]oth the certainty that procedural safeguards attached to any fact of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that fact in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a fact increasing punishment beyond the maximum of the statutory range.
Apprendi, 530 U.S. at 488 (footnote omitted).
But although the Apprendi Court said that the fact of a prior conviction
distinguished that case from Almendarez-Torres, it pointedly did not rule on whether Apprendi
overruled Almendarez-Torres. Rather, the Apprendi Court said,
Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decisions validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule . . . .
Apprendi, 530 U.S. at 489-90 (footnote omitted). More recently, the Court said that in Apprendi, it had reserv[ed] judgment as to the validity of Almendarez-Torres. Dretke v. Haley, 124 S. Ct. 1847, 1853 (2004). And as recently as this term, the Court has again left open the question of whether Apprendi applies to prior convictions. See Shepard v. United States, 125 S. Ct. 1254, 1236 n.5 (2005).
It certainly can be argued that Apprendi only held that the issue in
Almendarez-Torres was distinguishable and left open the question of whether recidivist enhancements are
subject to jury determination.
See footnote But in the years since
Apprendi was decided,
there has appeared to be almost total consensus that due process and the
Sixth Amendment do not require a jury determination to impose a recidivist sentencing
enhancement. See, e.g., United States v. Orduno-Mireles, No. 04-12630, 2005 U.S. App.
LEXIS 5442, at *7 n.3 (11th Cir. Apr. 6, 2005); United States v.
Moore, 401 F.3d 1220 (10th Cir. 2005); United States v. Skidmore, 254 F.3d
635, 642 (7th Cir. 2001) (citing cases); People v. Thomas, 110 Cal.Rptr.2d 571,
577-78 (Cal. Ct. App. 2001) (citing cases).
The reason that a jury determination is not required to impose a recidivist
sentencing enhancement is set forth in Apprendi itself as well as in Almendarez-Torres.
Where there has been a prior conviction, either the defendant has admitted
or a jury has made a determination beyond a reasonable doubt that the
defendant has committed a particular crime. This is the certainty that procedural
safeguards attached to any fact of prior conviction of which the Court in
Apprendi speaks. Apprendi, 530 U.S. at 488.
The doctrine of res judicata provides a second justification for not requiring a
jury determination to impose a recidivist sentencing enhancement. Res judicata dictates that
a judgment rendered on the merits is an absolute bar to a subsequent
action between the same parties or those in privity with them on the
same claim or demand. Gill v. Pollert, 810 N.E.2d 1050, 1057 (Ind.
2004) (quoting Sullivan v. American Cas. Co., 605 N.E.2d 134, 137 (Ind. 1992)).
It prevents the repetitious litigation of that which is essentially the same
dispute. Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000) (citations omitted).
Requiring a jury to find the fact of a prior conviction would
constitute such repetitious litigation because the jury would be presented with the facts
of a prior jurys conclusion.
We hold that the Sixth and Fourteenth Amendments do not require a jury
determination of the fact of a prior conviction in order to impose a
recidivist sentencing enhancement.
Smith appears to concede that under Apprendi, the determination of whether an individual
is a repeat sexual offender does not need to be made by a
jury. Smith, however, argues that the statute is unconstitutional because it gives
the court, rather than the jury, discretion as to whether it will impose
the repeat sexual offender status onto a defendant after the defendant has already
been found to be a repeat sexual offender. In other words, Smith
argues that the statute would likely not be problematic if it required the
court to increase a defendants sentence based on the finding of repeat sexual
offender status. Smith explains,
The legislatures choice of the word may, forces a judge to determine facts besides just that of repeat [sexual] offender status when weighing what sentence a person should receive. Under Apprendi, it is impermissible for the judge to determine other facts, with [the] exception of repeat [sexual] offender status, thereby removing the duty of fact finder from the jury.
Br. for Appellant at 12-13. Smith argues that although the jury need not make a factual determination of his prior sex offenses, he still has the right under Apprendi to have the jury make a determination of his repeat sexual offender status. But this is the same issue that we resolved against Smith in Part I. Although the Legislature made a distinction between finding the fact of a prior conviction and finding the status of a defendant with a prior conviction in the Habitual Offender Statute at issue in Seay, it did not make such a distinction when drafting the Repeat Sexual Offender Statute. Nothing in Apprendi or its progeny suggests that it was required to do so.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.