Attorneys for Appellant Attorney for Appellee
Neil L. Weisman Steve Carter
South Bend, Indiana Attorney General of Indiana
Nicole M. Schuster
Deputy Attorney General
Indiana Supreme Court
Appellant (Defendant below),
State Of Indiana,
Appellee (Plaintiff below).
Appeal from the St. Joseph Superior Court, No. 71D02-0207-MR-14,
The Honorable John Marnocha, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 71A03-0407-CR-312
May 10, 2005
Jason Patrick pleaded guilty to Murder, Class B felony Battery, and Class C
See footnote 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
The Court of Appeals reversed.
Patrick v. State, 819 N.E.2d 840 (Ind.
Ct. App. 2004). It held Patricks 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 Patricks 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 States 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
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 [Patricks] 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
Patricks 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,
is otherwise summarily affirmed.
Ind. Appellate Rule 58(A)(2).
All justices concur.
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).
Judge Najams 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 defendants 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 Vaidiks concurrence expressly
disagreed with this portion of Judge Najams opinion, see id. at 850-51 (Vaidik,
J., concurring in part), and Chief Judge Kirschs 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 defendants 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.