Attorney for Appellant Attorneys for Appellee
Kathleen M. Sweeney Steve Carter
Indianapolis, IN Attorney General of Indiana
Matthew D. Fisher
Deputy Attorney General
Appeal from the Marion Superior Court, No. 49G01-0201-FB-9638
The Honorable Tanya Walton Pratt, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0405-CR-382
May 25, 2005
In sentencing Williams, the trial court found two aggravating circumstances: 1) the
nature and circumstances of the crime -- heinous beatings resulting in severe injuries
-- and 2) Williams character, particularly his unwillingness to cooperate in prosecuting the
remaining perpetrators. (Tr. at 415-16.) The court stated specifically, [y]oure not
willing to cooperate and bring some justice to what happened to this young
man. (Tr. at 416.) It found his lack of a criminal
history as a mitigating circumstance. (Tr. at 415.) It sentenced Williams
to twelve years for aggravated battery, two years over the presumptive fixed term,
and three years for criminal confinement, one and a half years over the
presumptive term. It ordered these to be served concurrently. Ind. Code
Ann. § 35-50-2-5, 7 (West 2004).
The Court of Appeals affirmed Williams conviction and sentence, holding among other things
that he had waived any claim under Blakely v. Washington, 542 U.S. __,
124 S.Ct. 2531 (2004), by not objecting to his sentence at trial. Williams
v. State, No. 49A02-0405-CR-00382, slip op. at 14, 18 (December 16, 2004).
We grant transfer because Williams preserved a Blakely claim by challenging his sentence
in his initial appellate brief. See Smylie v. State, 823 N.E.2d 679,
690-91 (Ind. 2005). The Court of Appeals correctly rejected Williams other claims,
and we summarily affirm their disposition of them. Ind. Appellate Rule 58(A).
We could remand with instructions to impose the presumptive terms of ten years
for aggravated battery and one and a half years for criminal confinement, unless
the State elects to prove aggravating circumstances before a jury. The State
would probably reap minimal return on investment by choosing to do so as
compared, say, to seeking standard sentences served consecutively, which the court could properly
order with the aggravators it previously found. Smylie, 823 N.E.2d at 686.
Or we could alter the sentences ourselves within the bounds of Blakely using
our review and revise power. This authority flows from Article 7 Section
4 of the Indiana Constitution,
See footnote which was among the 1970 amendments.
Cooper v. State, 540 N.E.2d 1216, 1218 (1989). As we observed in
Cooper, the Judicial Study Commission issued a report describing its proposed constitutional reforms
and explaining that the commission supported review and revise power for Indianas appellate
courts after studying the efficacious use of the power in the Court of
Criminal Appeals in England. Id. (citing Report of the Judicial Study Commission
140 (1967)). The commission relied on an English statute granting the power
to review and revise, which stated:
On appeal against sentence the Court of Criminal Appeal shall, if they think
that a different sentence should have been passed, quash the sentence passed at
the trial, and pass such other sentence warranted in law by the verdict
(whether more or less severe) in substitution therefor as they think ought to
have been passed, and in any other case shall dismiss the appeal.
Criminal Appeal Act, 1907, 7 Edw. 7, ch. 23, § 4(3).
The current articulation of the standard under which we exercise this power is:
The Court may revise a sentence authorized by statute if, after due consideration
of the trial courts decision, the Court finds that the sentence is inappropriate
in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B) (adopted February 4, 2000).
We conclude that the trial judge was warranted in finding that the brutality
of the beatings -- one victim spent some twenty-two days in a coma
and suffered severe brain damage -- was an aggravating circumstance. (Tr. at
168-74, 415.) It adequately supports ordering consecutive sentences. Smylie, 823 N.E.2d
at 686 (aggravators requiring jury finding to support enhancement may be found by
court for purposes of consecutive sentences).
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.