Attorney for Appellant                      Attorneys for Appellee
Matthew D. Soliday                        Steve Carter
Valparaiso, Indiana                        Attorney General of Indiana

                                Jodi Kathryn Stein
                                Deputy Attorney General
                                Indianapolis, Indiana
______________________________________________________________________________

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 Indiana’s 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 Smith’s 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 Smith’s 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 35-46-1-3.

(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. Smith’s 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 Smith’s 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 offender status:

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 jury’s 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 State’s 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 Apprendi’s sentence under New Jersey’s 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 Court’s 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 phrase’s 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 decision’s 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 jury’s 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 defendant’s sentence based on the finding of repeat sexual offender status. Smith explains,

The legislature’s 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.