ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Sarah L. Nagy Steve Carter 

Indianapolis, Indiana Attorney General of Indiana 

 Grant H. Carlton 

 Deputy Attorney General 

 Indianapolis, Indiana 

______________________________________________________________________________ 

In the 

Indiana Supreme Court 

_________________________________ 

No. 06S04-0509-CR-413 

SHAWN A. PRICKETT, 

 Appellant (Defendant below),

v. 

STATE OF INDIANA, 

 Appellee (Plaintiff below). 

_________________________________ 

Appeal from the Boone County Superior Court I, No. 06D01-0110-CF-0107 

The Honorable Matthew C. Kincaid, Judge 

_________________________________ 

On Petition To Transfer from the Indiana Court of Appeals, No. 06A04-0410-CR-00553 

_________________________________ 

November 21, 2006 

Sullivan, Justice. 

Defendant Shawn Prickett was convicted of child molesting for having sex with a 13-

year-old girl. The presumptive sentence for this crime is 30 years. Prickett was sentenced to 40 

years and ordered to pay restitution and register as a sex offender. He contends that the evidence 

at his trial was insufficient to support his conviction, but we find that there was ample evidence 

to support the jury’s verdict. He also argues that the restitution and registration orders were imposed absent jury findings required by Blakely v. Washington, 542 U.S. 296 (2004), but we hold 
that Blakely imposes no such requirement. We do agree with Prickett that the factors relied on 

by the trial court did not justify increasing the sentence above 30 years. 

Background 

 The facts most favorable to the judgment show that on the evening of October 5, 2001, 

A.M., age 13, went to the house of her friend, M.D. Also at the home that evening were M.D.’s 

half brother, Shawn Prickett, age 21, and his friends Justin Anderson, Quinn Bailey, and Cassie 

Wetherald. 

 Prickett and his three friends were in an upstairs room of the home and were eventually 

joined by A.M. and M.D. M.D. left the upstairs room shortly after arriving, while A.M. remained alone with Prickett and his friends. At some point after M.D.’s departure, Prickett asked 

A.M. to remove her clothing. A.M. complied with Prickett’s request out of fear. Prickett then 

removed his own clothing and engaged in sexual intercourse with A.M. as his friends remained 

in the room and watched. During this encounter, Prickett also touched A.M.’s breast. The encounter ended after Prickett became angry at A.M.’s requests that he stop. 

 A.M. reported this incident to the Lebanon City Police Department on October 14, 2001. 

Prickett was subsequently charged with one count of Class A felony child molesting and one 

count of Class C felony child molesting. After a jury trial, Prickett was found guilty on both 

charges. 

 At his sentencing hearing, Prickett received a sentence of 40 years for the Class A felony 

child molesting conviction and a sentence of 8 years for the Class C felony child molesting conviction. The sentencing court enhanced both sentences from their respective 30- and four-year 

presumptives on the following aggravating bases: (1) Prickett had been on probation at the time 

he committed the offenses; (2) he had a previous criminal record; (3) he was in need of correctional and rehabilitative treatment that was best provided by commitment to a penal facility; and 

(4) his crime was committed forcibly. On balance, the court found no mitigating circumstances. 

2
It ordered that the sentences run concurrently. Prickett appealed both his convictions and his 

sentences. 

 In an unpublished memorandum decision, the Court of Appeals affirmed both of 

Prickett’s convictions for Class A and Class C felony child molesting. Prickett v. State, No. 

06A04-0410-CR-553, slip op., 831 N.E.2d 854 (Ind. Ct. App. 2005) (table). With respect to 

Prickett’s sentence, the court found that it was appropriate given “his extensive criminal history . 

. . .” Id., slip op. at 7. Prickett sought, and we granted, transfer. Prickett v. State, 841 N.E.2d 

183 (Ind. 2005) (table). 

Discussion 

 Prickett presents three arguments. He asserts there was insufficient evidence to support 

his conviction. Prickett also contends that his sentence was unconstitutional because it “exceed[ed] the presumptive sentence established by the Legislature, [and was] based upon aggravating factors not found by a jury.” Pet. to Trans. at i. Lastly, Prickett argues that the trial court 

committed reversible error in ordering him to register as a sex offender and pay restitution to his 

victim since “there was no independent finding by a jury beyond a reasonable doubt that [his] 

conduct met the requirements to merit the[se] additional penalt[ies] . . . .” Id. at 7. 

I

 Prickett claims there is insufficient evidence to support his conviction because the testimony of the witnesses was “all conflicting.” Id. at 1. It is well established that where a defendant is challenging the sufficiency of the evidence to support a conviction, we “neither reweigh 

the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of 

fact could have found the defendant guilty beyond a reasonable doubt.” Wright v. State, 828 

N.E.2d 904, 906 (Ind. 2005) (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). The 

factfinder bears the responsibility for determining whether the evidence in a given case is suffi3
cient to satisfy each element of an offense, and we consider conflicting evidence in the light most 

favorable to the trial court’s ruling. See id. 

 Indiana Code section 35-42-4-3(a) provides that a person who is at least 21 years of age 

commits Class A felony child molesting if, “with a child under fourteen (14) years of age, [he or 

she] performs or submits to sexual intercourse or deviate sexual conduct . . . .” Section (b) of the 

statute makes it a Class C felony for a person, “with a child under fourteen (14) years of age, [to] 

perform[ ] or submit[ ] to any fondling or touching, of either the child or the older person, with 

intent to arouse or to satisfy the sexual desires of either the child or the older person . . . .” 

 In the instant case, the evidence shows that Prickett was 21 years of age and A.M. was 13 

years old at the time of the crime. In addition to the testimony of the victim, A.M., Justin Anderson, and Quinn Bailey also gave eyewitness testimony at trial indicating that Prickett and A.M. 

had engaged in sexual intercourse on October 5, 2001. Anderson also testified to witnessing 

Prickett having touched A.M.’s breast during this incident. 

 Prickett points us to inconsistent testimony regarding the victim’s demeanor after the incident and the precise location of the witnesses and occupants of the home during the commission of the crime. All of these facts were put before the factfinder, which weighed the testimony 

and determined that Prickett had committed Class A and Class C felony child molesting beyond 

a reasonable doubt.1

 Under the above circumstances and the reasonable inferences that could be 

drawn from them, and given the probative evidence, we find that the evidence was sufficient for 

a reasonable trier of fact to find Prickett guilty of Class A and Class C felony child molesting.2

 

1

 Prickett also argues that certain aspects of Justin Anderson’s testimony were “incredibly dubious, and 

unbelievable.” Pet. to Trans. at 1. Reliance upon the “incredible dubiosity” rule is permitted, however, 

only “where a sole witness presents inherently contradictory testimony that is equivocal or coerced and 

there is a lack of circumstantial evidence of guilt.” Whedon v. State, 765 N.E.2d 1276, 1278 (Ind. 2002). 

Prickett’s challenge based upon the incredible dubiosity rule fails to meet that threshold for the reasons 

already set forth above. 

2

 Based upon concession by the State, the Court of Appeals ordered the Class C conviction vacated on 

double jeopardy grounds. We summarily affirm the Court of Appeals on this point. Ind. Appellate Rule 

58(A)(2). 

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II

 Indiana Code section 35-50-2-4 governs the sentencing parameters to be applied to persons convicted of Class A felonies. It directs that “a person who commits a Class A felony shall 

be imprisoned for a fixed term of thirty (30) years, with not more than twenty (20) years added 

for aggravating circumstances or not more than ten (10) years subtracted for mitigating circumstances . . . .”3

 As noted earlier, the trial court sentenced Prickett to an enhanced term of 40 

years of imprisonment for committing Class A felony child molesting. He now seeks relief from 

that enhanced sentence. 

A 

 When a trial court relies on mitigating or aggravating circumstances in deciding whether 

to deviate from the statutory presumptive sentence, it is required to: “(1) identify all significant 

mitigating and aggravating circumstances; (2) state the specific reason why each circumstance 

has been determined to be mitigating or aggravating; and (3) articulate the court’s evaluation and 

balancing of circumstances.” Francis v. State, 817 N.E.2d 235, 237 (Ind. 2004). As already 

noted, the trial court in this case listed four aggravating circumstances to support its sentence: (1) 

Prickett was on probation at the time he committed the offense; (2) he had an extensive juvenile 

and adult criminal record; (3) Prickett was in need of correctional and rehabilitative treatment 

best provided by commitment to a penal institution; and (4) he committed his offense forcibly. 

The court gave substantial weight to the fact Prickett was on probation at the time he committed 

his offense. It found no mitigating circumstances. 

 First, the trial court considered Prickett’s criminal history. Prickett’s juvenile record 

shows adjudications for incorrigibility, burglary, and theft. His adult record consists of misde-

 

3

 The current, amended version of Indiana Code section 35-50-2-4 refers to an “advisory” sentence. In 

2005, an amendment to this statute made in response to Blakely v. Washington, 542 U.S. 296 (2004), 

which included a change from “presumptive” sentences to “advisory” sentences, became effective. Reyes 

v. State, 848 N.E.2d 1081, 1083 n.1 (Ind. 2006); Weaver v. State, 845 N.E.2d 1066, 1070-72 (Ind. Ct. 

App. 2006), trans. denied, 855 N.E.2d 1011 (table). We apply the version of the statute in effect at the 

time of Prickett’s sentence and thus refer to his “presumptive” sentence, rather than an “advisory” sentence. 

5
meanor convictions for illegal consumption of alcohol as a minor, mischief, and conversion. 

Prickett was placed on probation of one year for the latter offense. As such, there was evidence 

of a criminal history on which the trial court could have relied. We defer for a moment the discussion of the weightiness of Prickett’s criminal history as a sentence enhancement factor. 

 Second, the trial court relied on Prickett’s need for correctional and rehabilitative treatment best provided by commitment to a penal institution. We have found that “[f]or this aggravating circumstance to justify in part an enhanced sentence, it must be understood to mean that 

the defendant is in need of correctional and rehabilitative treatment that can best be provided by 

a period of incarceration in a penal facility in excess of the presumptive sentence term.” Taylor 

v. State, 695 N.E.2d 117, 122 (Ind. 1998) (quoting Mayberry v. State, 670 N.E.2d 1262, 1271 

(Ind. 1996)). In sentencing Prickett, the trial court determined that the highly structured and controlled environment of the Department of Correction was of the type “to crystallize in [Prickett’s] 

mind and understanding the appropriate ways to relate to other human beings and to children.” 

Tr. at 427. This explanation, however, does not make clear how a sentence enhancement of ten 

years beyond the presumptive sentence of 30 years relates to and helps achieve the above-stated 

goal. Thus, we find that the trial court’s reliance on this factor was improper, as it failed to explain sufficiently how a sentence enhancement of ten years would better further the correctional 

and rehabilitative treatment of Prickett than the presumptive term. 

 Third, the trial court evaluated Prickett’s alleged use of force to commit the crime and 

concluded that force was an aggravating circumstance that warranted a sentence enhancement. 

There was conflicting testimony as to whether Prickett or A.M initiated their sexual encounter. 

For example, Justin Anderson and Quinn Bailey both testified to witnessing A.M. beginning the 

encounter by positioning herself on top of Prickett and initiating intercourse. Conversely, A.M. 

testified to having been passive as Prickett penetrated her. Use of force would be a valid aggravating factor for the crime charged here and so the trial court, subject to constitutional constraints,4

 could properly rely on it for sentence enhancement. We defer discussion of the 

weightiness of the use of force as an aggravator in this case. 

 

4

 Among the constitutional considerations that might well constrain a trial court’s reliance on this aggravating circumstance is the mandate of Blakely that certain facts used to support an enhanced sentence be 

6
 Fourth and finally, the trial court gave “substantial weight” as an aggravating factor to the 

fact that Prickett was on probation when he committed the crime. Prickett had been placed on 

probation on February 4, 2001, as part of his sentence for Class A misdemeanor conversion. 

Prickett’s probation status was a validly considered aggravating factor. We defer discussion of 

the weightiness of Prickett’s probation. 

B 

 We acknowledge the validity of three factors employed by the trial court in enhancing 

Prickett’s sentence: Prickett’s criminal history, use of force to commit the crime, and probation 

status. However, article VII, section 4, of the Indiana Constitution provides that “[t]he Supreme 

Court shall have, in all appeals of criminal cases, the power to . . . review and revise the sentence 

imposed.” The contours of that authority are outlined in Indiana Appellate Rule 7(B), which 

states “[t]he Court may revise a sentence authorized by statute if, after due consideration of the 

trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of 

the offense and the character of the offender.” Upon review of the aggravating factors considered by the trial court, we find none of them sufficiently weighty to justify a ten-year sentence 

enhancement. 

 First, we consider Prickett’s criminal history. We have previously concluded that the 

significance of a defendant’s prior criminal history in determining whether to impose a sentence 

enhancement will vary “based on the gravity, nature and number of prior offenses as they relate 

to the current offense.” Ruiz v. State, 818 N.E.2d 927, 929 (Ind. 2004) (quoting Wooley v. State, 

716 N.E.2d 919, 929 (Ind. 1999)). While recognizing that a defendant’s criminal history can be 

a valid aggravating circumstance, we find that it is of little weight in the instant case. None of 

Prickett’s prior offenses bears any relation to the crime for which the sentence enhancement was 

applied. They are neither similar in gravity nor nature to the current offense. Id. Prickett’s prior 

criminal history was neither sufficiently similar to the instant offense nor weighty enough to warrant consideration as an aggravating factor in enhancing his Class A felony sentence. 

 

found by a jury beyond a reasonable doubt. Because of the way we resolve this issue, it is unnecessary 

for us to address the applicability of Blakely to this aggravating circumstance. 

7
 Second, we consider Prickett’s alleged use of force. To show that an act was committed 

“forcibly” in this context would require evidence of force beyond that necessary to perform sexual intercourse and commit the crime of which Prickett was convicted. The record is insufficient 

to support such a conclusion. The inconsistent testimony of the witnesses in this case prevents a 

confident inference that such force was used. Though an evaluation of force as an aggravating 

factor was within the trial court’s purview (again, subject to constitutional constraints), the record here, with its conflicting accounts of force used, does not offer weighty enough evidence of 

force to justify a sentence enhancement of ten additional years. 

 Third and finally, we are left with Prickett’s probationary status at the time he committed 

the current offense. Probationary status is a valid aggravating factor, and sufficient to support 

sentence enhancement. However, in light of the lack of gravity in Prickett’s criminal history and 

the weakness of the evidence supporting Prickett’s use of force to commit the crime, probationary status alone does not support the ten-year sentence enhancement here. See Neff v. State, 849 

N.E.2d 556, 563 (Ind. 2006) (holding probationary status aggravator did not affect sentence calculation). 

Our analysis of these aggravating circumstances is such that they are not sufficiently 

weighty to warrant a sentence above the presumptive for a Class A felony. While we acknowledge that even one valid aggravating factor can, depending on the circumstances, be sufficient to 

enhance a presumptive sentence, Sherwood v. State, 702 N.E.2d 694, 699 (Ind. 1998), we nevertheless find that Prickett’s enhancement was inappropriate in light of the nature of the offense 

and the character of the offender. We conclude that the trial court gave too much weight to these 

aggravating factors and order Prickett’s sentence reduced to the presumptive term of 30 years. 

C 

 Prickett also contends that his sentence is unconstitutional, on grounds that it exceeds the 

presumptive sentence established by the Legislature and was based upon aggravating factors not 

found by a jury. Prickett’s argument on this point is a direct invocation of the United States Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 301 (2004), which held that, 

8
with certain exceptions, facts that are used to support an enhanced sentence must be found by a 

jury beyond a reasonable doubt. Because we hold that Prickett’s sentence be reduced from 40 

years to the statutory presumptive term of 30 years on the basis of our constitutional review and 

revise authority for the reasons above, we do not address his Blakely claim. 

III

 As part of his sentence, the trial court also ordered Prickett to pay restitution to his victim 

and register as a sex offender. Prickett contends the trial court’s actions in this regard were improper, as “there was no independent finding by a jury beyond a reasonable doubt that Prickett’s 

conduct met the requirements to merit the additional penalty of restitution and sexual offender 

registry.” Appellant’s Br. at 15. Both of these questions are issues of first impression for this 

court and we address each in turn. 

A 

 Indiana Code section 35-50-5-3 authorizes trial courts to order a defendant “to make restitution to the victim of the crime, the victim’s estate, or the family of a victim who is deceased.” 

It may fashion its order “upon a consideration of: . . . medical and hospital costs incurred by the 

victim . . . as a result of the crime; [and] the cost of medical laboratory tests to determine if the 

crime has caused the victim to contract a disease or other medical condition.” I.C. § 35-50-5-

3(a)(2) & (3) (2004). Prickett was ordered by the trial court to pay $732.00 to his victim for uncovered medical expenses she incurred as result of his crime. 

 A small number of federal courts have addressed the issue of whether restitution orders 

are affected by Blakely. At this point they have concluded they are not. See United States v. 

Reifler, 446 F.3d 65, 113-20 (2nd Cir. 2006) (finding that Blakely does not affect restitution orders after a survey of other circuits’s holdings in similar cases); United States v. Gordon, 393 

F.3d 1044, 1051 & n.2 (9th Cir. 2004) (quoting United States v. DeGeorge, 380 F.3d 1203, 1221 

(9th Cir. 2004) to hold that a “restitution order made by the district court . . . is unaffected by 

Blakely.”), cert. denied, 126 S. Ct. 472 (2005); DeGeorge, 380 F.3d at 1221 (quoting United 

9
States v. Baker, 25 F.3d 1452, 1456 (9th Cir. 1994), to hold that “[r]estitution determinations . . . 

are quite different from sentencing determinations under the Sentencing Guidelines.”). Their 

reasoning has been that “historically judges [have] imposed restitution.” United States v. Visinaiz, 344 F. Supp. 2d 1310, 1323 (D. Utah 2004), aff’d, 428 F.3d 1300 (10th Cir. 2005), cert. 

denied, 126 S. Ct. 1101 (2006). They conclude that because the scope of the Framers’ conception of the Sixth Amendment “did not embrace restitution orders, Blakely does not require a jury 

trial on restitution.” Id. We follow this reasoning and find that the trial court’s order of restitution for Prickett did not violate the requirements of Blakely, as they are inapplicable in this context. 

B 

 We reach the same conclusion with respect to the sex offender registry. Indiana Code 

sections 5-2-12-4 through 5 govern who must register as a sex offender within the state. An “offender” is defined under the statute as any person convicted of any of the sex and violent offenses the statute lists, including child molesting. See I.C. § 5-2-12-4(a)(1) (2004). Any sex offender who resides in Indiana and has been convicted of any of the enumerated acts of section 5-

2-12-4 is then required to register. See I.C. § 5-2-12-5(a)(1) (2004). Thus, a sex offender’s 

submission to registration is by virtue of being found guilty by a jury of a sex offense. It is based 

upon the fact of the conviction. No additional finding is necessary from the jury or the court under those circumstances. See Doe v. O’Connor, 790 N.E.2d 985, 986 (Ind. 2003). 

Conclusion 

 We affirm the trial court’s decision with respect to Prickett’s conviction and its order of 

restitution and to register as a sex offender. We, however, remand the issue of Prickett’s sentence to the trial court with instructions to issue an amended sentencing order and to issue or 

make any other documents or docket entries necessary to impose a sentence of 30 years, without 

a hearing. 

10
Shepard, C.J., and Dickson and Rucker, JJ., concur. Boehm, J., concurs in result with separate 

opinion. 

11
Boehm, J., concurring in result. 

 I agree with Prickett and the majority that Prickett’s criminal history and his resulting 

probation are not enough to enhance his sentence. However, I would find the use of force to be 

an aggravating circumstance justifying the sentence imposed by the trial court. Although the 

majority finds the evidence not “weighty enough” based on the presence of inconsistent testimony, I do not believe it is appropriate for an appellate court to disregard the trial court’s conclusion as to factual issues bearing on sentencing. The trial court found that this crime was committed by use of force. 

Although I believe the trial court is in the best position to evaluate the credibility of these 

conflicting accounts, I agree that the sentence should be reduced for a different reason: the use of 

force was not found by a jury beyond a reasonable doubt as required by Blakely v. Washington, 

542 U.S. 296 (2004). See Smylie v. State, 823 N.E.2d 679 (Ind. 2005). But for Blakely, I would 

not agree that Prickett’s sentence must be reduced. However, after Blakely, I believe that 

Prickett’s enhanced sentence violates the Federal Constitution. I therefore concur in the majority’s conclusion that Prickett’s sentence should be reduced to the presumptive thirty-year term. 

12