Attorneys for Appellant                Attorneys for Appellee
Susan K. Carpenter    Steve Carter
Public Defender of Indiana    Attorney General of Indiana
Lorraine L. Rodts    Matthew D. Fisher
Special Assistant to the Public Defender    Ellen H. Meilaender
    Deputy Attorneys General
Attorneys for Amicus Curiae    
Marion County Public Defender Agency     Attorneys For Amicus Curiae Indiana
Ann M. Sutton    Prosecuting attorney’s council
Kathleen M. Sweeney    Kim Hall
Indianapolis, IN    Knox, IN

Michael R. Limrick    Stephen J. Johnson
Indianapolis, IN    Indianapolis, IN

Joel M. Schumm
Indianapolis, IN


In the
Indiana Supreme Court
_________________________________

No. 57S04-0409-CR-00409


Bruce G. Heath,
                                Appellant (Defendant below),

v.

State of Indiana,
                                Appellee (Plaintiff below).
_________________________________

Appeal from the Noble Circuit Court, No. 57C01-0106-CF-065
The Honorable G. David Laur, Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 57A04-0307-CR-371
_________________________________

May 10, 2005



SHEPARD, Chief Justice.

    Appellant Bruce G. Heath challenges the trial court’s reliance on three aggravating factors to impose an enhanced sentence for a criminal recklessness conviction. In accordance with our recent holding in Smylie v. State, we hold that Heath properly preserved the issue on appeal by raising the claim in his initial appellate brief and that the sentence enhancement violates Blakely v. Washington.


Facts and Procedural History


This case arises from events in Kendallville during a June evening in 2001, when Shaun Caudill accepted Eric Rupley and Joshua Deming’s challenge to a fight. Bruce Heath, Heath’s thirteen-year-old nephew, and various other Caudill acquaintances, decided to drive to the location after catching wind of the potential fight. Heath claimed he was under the impression there would be a drag race. Caudill notified the group of followers that the fight was off, but it is unclear whether Heath received the message. Heath and one other vehicle proceeded to the location.

When Heath arrived, people presumably on Rupley and Deming’s side surrounded his vehicle. They kicked and pounded the car and struck Heath and his nephew. Heath then shot two members of the raucous crowd, Justin Knox and Josh Deming, in the leg and in the face, respectively. Because the remaining persons surrounding the car had not dispersed to Heath’s satisfaction, he fired two more shots, one of which struck the passenger-side door of a nearby parked truck. Three people were in the bed of that truck, and another person was in the cab. Heath then made a quick departure.

    The State charged Heath with two counts of class C felony criminal recklessness for Knox and Deming’s injuries. It charged a third count of class D felony criminal recklessness for the two subsequent shots. The jury found Heath guilty on Count III only. The Indiana Code provides that the penalty for a class D felony is a presumptive “fixed term” of one and one-half years, with a maximum of one and one-half years added for aggravating circumstances and a maximum of one year subtracted for mitigating circumstances. Ind. Code Ann. § 35-50-2-7 (West 2004). The trial court found the following aggravating factors: 1) the crime was committed in the presence of a person less than 18-years-old; 2) there were many unarmed observers in extreme danger nearby; and 3) the circumstances represented the “[w]orst type of Class D Criminal Recklessness facts.” (Appellant’s App. at 504.) It found Heath’s lack of a prior criminal record as a mitigator. The court then sentenced Heath to two and a half years.


I. Heath Properly Preserved the Issue


    In his appellate brief, Heath argued that the trial court improperly considered each of the three aggravating circumstances used to enhance his sentence above the fixed term. (Appellant’s Br. at 44-48.) This sentencing challenge put before the Court of Appeals was sufficient to preserve the Blakely claim that Heath fully articulated in his petition to transfer. See Smylie v. State, 823 N.E.2d 679, 690-91 (Ind. 2005).


II. Enhancement Violates Blakely


The three aggravating circumstances on which the sentence rests were neither prior convictions, nor were they found beyond a reasonable doubt by the jury. See Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531, 2536-38 (2004). Therefore, adding a year to the statutory presumptive term violated Heath’s Sixth Amendment right to a jury trial. Smylie, 823 N.E.2d 682-83, 687.


Conclusion


    The other grounds on which Heath has sought reversal of his conviction were correctly rejected by the Court of Appeals. Ind. Appellate Rule 58(A). We vacate the enhancement of Heath’s sentence and remand for imposition of the fixed term or for such jury proceedings as the State may wish to pursue to create a basis for enhancement.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.