ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Ellen M. O’Connor Steve Carter 

Marion County Public Defender Agency Attorney General of Indiana 

Indianapolis, Indiana 

Ellen H. Meilander 

Deputy Attorney General 

 Indianapolis, Indiana 

In the 

Indiana Supreme Court _________________________________ 

No. 49S02-0505-CR-207 

KENNA D. RYLE, 

 Appellant (Defendant below), 

v. 

STATE OF INDIANA, 

 Appellee (Plaintiff below). 

_________________________________ 

Appeal from the Marion Superior Court, No. 49G03-0303-MR-035666 

The Honorable Sheila Carlisle, Judge 

_________________________________ 

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0405-CR-423 

_________________________________ 

December 13, 2005 

Shepard, Chief Justice.

 When the trial court ordered an enhanced sentence for appellant Kenna D. Ryle’s 

manslaughter conviction, it cited his four juvenile adjudications and the fact that he was on 

probation when he committed the crime. Our analysis of Apprendi v. New Jersey leads us to 

conclude that these factors are proper sentencing considerations for a trial judge and need not be 

submitted to a jury. 

1
Facts and Procedural History 

 Kenna Ryle shot and killed Maurice Sanders at an apartment complex in Indianapolis on 

February 25, 2003. The State charged Ryle with murder, unlawful possession of a firearm by a 

serious violent felon, and carrying a handgun without a license. The State dismissed the two 

firearm offenses, and the jury found Ryle guilty of the lesser-included offense of voluntary 

manslaughter, a class A felony. IND. CODE ANN. § 35-42-1-3 (West 2004). 

 In sentencing Ryle, the trial court allotted minimal mitigating weight to the fact that he 

was only twenty-two years old. It found two aggravating circumstances: Ryle’s criminal history 

and the fact that he was on probation at the time he killed Sanders. Ryle’s criminal history 

included four juvenile adjudications -- two offenses that would have been burglary had Ryle 

been an adult, one of battery, and one of carrying a handgun without a license. His history also 

revealed two adult convictions -- one for possession of cocaine and a firearm, a class C felony, 

and one for conspiracy to commit dealing in cocaine, a class A felony. On April 23, 2004, the 

court sentenced Ryle to forty-five years executed time, fifteen years over the presumptive term. 

IND. CODE ANN. § 35-50-2-4 (West 2004). 

 The Court of Appeals affirmed Ryle’s enhanced sentence, rejecting his argument that the 

trial court improperly considered the four juvenile adjudications and his probation status. Ryle v. 

State, 819 N.E.2d 119, 123 (Ind. Ct. App. 2004) vacated. We granted transfer to address the 

questions related to Blakely v. Washington1

 and Apprendi v. New Jersey.

2

I. Juvenile Adjudications 

 

1

 542 U.S. 296 (2004). 

2

 530 U.S. 466 (2000). 

2
 Since nearly the beginning of our present criminal code, Indiana courts have recognized 

that criminal behavior reflected in delinquent adjudications can serve as the basis for enhancing 

an adult criminal sentence. See, e.g., Simms v. State, 421 N.E.2d 698, 703-04 (Ind. Ct. App. 

1981). We have emphasized that it is the criminal behavior reflected in earlier proceedings 

rather than the adjudications that is the proper proof of a prior history of criminal behavior. 

Jordan v. State, 512 N.E.2d 407, 410 (Ind. 1987). Ryle challenges the trial court’s use of four 

prior juvenile adjudications to support the sentencing enhancement, arguing that juvenile 

adjudications are not prior convictions for Apprendi purposes. He says that whether these 

adjudications exist or not should be decided by a jury. 

 The federal circuits are divided over whether juvenile adjudications are an exception to 

the Apprendi requirement that all facts used to enhance a sentence over the statutory maximum 

must be found by a jury beyond a reasonable doubt. Apprendi, 530 U.S. at 490. The Third, 

Eighth, and Eleventh Circuits have held that they are. United States v. Burge, 407 F.3d 1183, 

1187-91 (11th Cir. 2005)(defendant received all constitutional protections due in his prior 

juvenile adjudication), cert. denied, 126 S.Ct. 551 (2005); United States v. Jones, 332 F.3d 688, 

694-96 (3d Cir. 2003)(prior non-jury juvenile adjudication with all constitutionally-required 

procedural safeguards is a prior conviction for Apprendi purposes), cert. denied, 540 U.S. 1150 

(2004); United States v. Smalley, 294 F.3d 1030, 1031-33 (8th Cir. 2003)(district court justified 

in considering juvenile adjudications at sentencing), cert. denied, 537 U.S. 1114 (2003). The 

Ninth Circuit held contra, concluding that juvenile adjudications are not the equivalent of prior 

convictions. United States v. Tighe, 266 F.3d 1187, 1191-95 (9th Cir. 2001)(district court 

violated Apprendi in counting Tighe’s previous juvenile adjudication as a predicate offense 

under Armed Career Criminal Act). Our analysis of Apprendi leads us to conclude that the 

Third, Eighth, and Eleventh Circuits are right. 

 The Apprendi Court explained the reason for a prior conviction exception by saying that, 

there is a vast difference between accepting the validity of a prior 

judgment of conviction entered in a proceeding in which the 

defendant had the right to a jury trial and the right to require the 

prosecutor to prove guilt beyond a reasonable doubt, and allowing 

the judge to find the required fact under a lesser standard of proof. 

3
Apprendi, 530 U.S. at 496. Juvenile adjudications were not specifically addressed in Apprendi, 

and unfortunately they “lie in between these two poles,” because they do not provide a jury trial 

right but do require proof beyond a reasonable doubt. Smalley, 294 F.3d at 1032. 

 Indiana’s juvenile code guarantees respondents the right to notice, the right to a speedy 

trial, the right to confront and cross-examine witnesses, the right to compulsory process to obtain 

witnesses and evidence, the right to counsel, the right against self-incrimination, and the right to 

require the State to prove all allegations beyond a reasonable doubt. IND. CODE ANN. § 31-37-

12-5 (West 2004). As in most other states, Indiana juvenile proceedings do not afford trial by 

jury, but of course the U.S. Supreme Court has rejected the claim that the Fourteenth and Sixth 

Amendments mandate jury trials in juvenile matters, holding that the special ideal of the juvenile 

courts produces fair, equitable, and reliable results. McKeiver v. Pennsylvania, 403 U.S. 528, 

547 (1976).3 

 While Apprendi does specifically mention the right to a jury trial, the Court has made it 

“crystal clear” that the decisions that it relied on in making prior convictions a sentencing 

exception “turned heavily” on the fact that the additional sentences were based on recidivism, 

which may well be the most common basis for sentencing enhancements. Apprendi, 530 U.S. at 

488. 

The Apprendi Court explained the holding of Almendarez-Torres v. United States4

 that 

prior convictions need not be charged in an indictment, by saying that “the certainty that 

procedural safeguards attached to any ‘fact’ of prior conviction” mitigates Sixth Amendment 

 

3

 Some studies suggest that judges are more likely than juries to favor police testimony and that juries’ 

give-and-take format and diverse backgrounds enhance reliability. Constitutional Law -- Right to Jury 

Trial -- Eighth Circuit Holds an Adjudication of Juvenile Delinquency to Be a “Prior Conviction” for the 

Purpose of Sentence Enhancement at a Subsequent Criminal Proceeding. -- United States v. Smalley, 294 

F.3D 1030 (8th Cir. 2002), 116 HARV. L. REV. 705, 709 (2002). To be sure, the juvenile court and adult 

court have their shortcomings, but we think the modern work of juvenile judges and court staff warrants 

the optimism Justice Blackman expressed in McKeiver. 4

 523 U.S. 224, 226-27 (1998). Justice Thomas observed that a majority of the Court had declared itself 

in favor of overruling Almendarez-Torres. Shepard v. U.S., 544 U.S. __, 125 S.Ct. 1254, 1264 (2005) 

(Thomas, J., concurring). We take such a declaration to be a matter for the court in Washington D.C. and 

not for us. Roper v. Simmons, 543 U.S. 551, __, 125 S.Ct. 1183, 1209 (2005) (O'Connor, J., dissenting). 

4
concerns. Id. The main concern was whether the prior conviction’s procedural safeguards 

ensured a reliable result, not that there had to be a right to a jury trial. Like that of most states, 

Indiana’s code regards juvenile adjudications as reliable enough to form the basis for 

confinement of a juvenile delinquent or for ordering a wardship. IND. CODE ANN. § 31-37-19-6 

(West 2004). Similarly, a misdemeanor conviction is a conviction nonetheless despite the fact 

that there is no Sixth Amendment jury trial right for misdemeanor offenses carrying a maximum 

prison term of six months or less. Lewis v. United States, 518 U.S. 322, 325-26 (1996). 

 Other than treating juvenile adjudications as exceptions, we perceive two other options. 

One would be to retry juvenile cases anew in front of juries. As a practical matter, requiring a 

jury to decide whether a defendant was a juvenile delinquent beyond a reasonable doubt by 

hearing stale evidence no more ensures reliability than allowing the trial judge to make a 

decision based upon a properly admitted record of conviction. The other would be to conduct 

jury trials in which the jury would be asked to decide whether the earlier court found the juvenile 

guilty or not guilty. A decision to require the jury to determine the “fact” of prior juvenile 

adjudications would result in an untold number of defendants clogging the trial courts on 

remand, granted they properly preserved a sentencing claim on appeal. Smylie v. State, 823 

N.E.2d 679, 688-89 (Ind. 2005). 

II. Committing a Crime While on Probation 

 The trial court enhanced Ryle’s sentence partly on the basis that he was on probation 

when he committed the present offense, a fact reflected in the presentence investigation report. 

The question is whether this fact needs to be proven before a jury. 

The Indiana Code requires that judges consider a presentence investigation report 

prepared by the court’s probation officer when sentencing a defendant convicted of a felony. 

IND. CODE ANN. § 35-38-1-8 (West 2004). The code requires that this report contain information 

on the present crime, the impact of the crime on the victim (including statements submitted by 

the victim), the convicted person’s criminal history, social history, employment history, family 

5
situation, economic status, education, and personal habits, and any other matters the court 

requires. IND. CODE ANN. §§ 35-38-1-8, 9(b)-(c) (West 2004). The court provides the 

completed report to the defendant and the defendant’s lawyer, who have the opportunity to 

contest its accuracy. IND. CODE ANN. § 35-38-1-12 (West 2004).5

 Recognizing the important role presentence investigation reports play in criminal 

sentencing, the General Assembly has obliged the Board of Directors of the Judicial Conference 

of Indiana to adopt minimum standards for presentence investigation reports. IND. CODE ANN. § 

11-13-1-8(b)(4) (West 2004 & Supp. 2004).6

 Pursuant to this mandate, the board of the Judicial 

Conference adopted a standard presentence investigation report that included all of the 

information specified in section 35-38-1-9(b)-(c); it also required all probation officers to adhere 

strictly to this format. INDIANA JUDICIAL CENTER, STANDARD INDIANA PRESENTENCE 

INVESTIGATION REPORT 1-2 (1993). The board provided specific and thorough instructions to 

probation officers for acquiring and reporting the required information. Id. at 9-19.

Probation in Indiana is a court function, and probation officers are trained, tested, hired, 

and supervised directly by the judiciary. Before probation officers serve, they must pass a test 

covering juvenile law, criminal sentencing (including presentence reports), and general probation 

matters. They must then attend a training program conducted by the Judicial Conference during 

their first year of employment, and complete twelve hours of continuing education during each 

 

5

 Recent Court of Appeals opinions have held that a judge can enhance a defendant’s sentence without a 

jury determination of probationary status because probation is derivative of criminal history and/or a 

defendant admitted to being on probation by not objecting to the presentence investigation report. 

Alexander v. State, 837 N.E.2d 552, 556-57 (Ind. Ct. App. 2005); Devries v. State, 833 N.E.2d 511, 515 

(Ind. Ct. App. 2005) trans. denied; Abney v. State, 822 N.E.2d 260, 268 (Ind. Ct. App. 2005) trans. 

denied; Ryle v. State, 819 N.E.2d 119, 122-23 (Ind. Ct. App. 2004) vacated; Bledsoe v. State, 815 N.E.2d 

507, 508 (Ind. Ct. App. 2004), trans. denied. To the extent that these decisions advance this reasoning, 

they are disapproved. 

Probation stands on its own as an aggravator. While a criminal history aggravates a subsequent 

crime because of recidivism, probation further aggravates a subsequent crime because the defendant was 

still serving a court-imposed sentence. 

Moreover, using a defendant’s failure to object to a presentence report to establish an admission 

to the accuracy of the report implicates the defendant’s Fifth Amendment right against self-incrimination. 

This also explains why Ryle did not admit to the juvenile adjudications. 

6

 The Judicial Conference of Indiana, consisting of the state’s judicial officers, acts as administrator for 

probationers. It also promotes the improved operation of Indiana’s judicial system, continuing education 

of judges, and a better public understanding of the judiciary. IND. CODE ANN. § 33-38-9-6 (West 2004). 

6
subsequent year. INDIANA JUDICIAL CENTER, INDIANA PROBATION STANDARDS 10-11 (2001). 

When they recite a defendant’s criminal history and probation status in a presentence 

investigation report, probation officers must follow the instructions provided by the Judicial 

Conference of Indiana, which direct officers to accurately list sources of information. 

STANDARD INDIANA PRESENTENCE INVESTIGATION REPORT at 9-11. 

These requirements governing probation officers and their presentation of information to 

the sentencing court ensure the reliability of their work product. Thus, probation officers can 

properly contribute to the character and outcome of prior convictions by researching the judicial 

documents sanctioned in Shepard v. United States, 544 U.S. __, 125 S.Ct. 1254, 1259-60 (2005). 

Shepard pled guilty to possession of a firearm by a felon. The Armed Career Criminal 

Act mandates a minimum fifteen-year sentence for those possessing a firearm after three prior 

convictions for serious violent felonies. 18 U.S.C. § 924(e) (2000 ed. & Supp. II). According to 

the Act, burglary is a violent felony only if committed in a building or enclosed space. To prove 

that Shepard’s prior state convictions for burglary were committed in a building or enclosed 

space (thus violent felonies qualifying Shepard for the mandatory minimum) the Government 

submitted police reports and complaint applications that represented the predicates of the 

burglary prosecution against Shepard in the courts of Massachusetts. Shepard, 544 U.S. at__, 

125 S.Ct. at 1258. 

The Court had earlier held that such determinations could be made only by reference to 

the statutory definition of the earlier offense, or to the “charging paper and jury instructions.” 

Taylor v. United States, 495 U.S. 575, 602 (1990). The Court considered the Government’s 

argument as an attempt to go “beyond conclusive records made or used in adjudicating guilt and 

look[] to documents submitted to lower courts even prior to charges.” Shepard, 544 U.S. at __, 

125 S.Ct. at 1260. It held that a sentencing court could not consider these documents to establish 

facts that support sentencing enhancements. Id. at __, 1257. It noted the earlier concern in 

Taylor was a “demand for certainty.” Id. at __, 1260. However, it reaffirmed its holding in 

Taylor that when a later court determines the character of a prior conviction, it can examine the 

“statutory definition, charging document, written plea agreement, transcript of plea colloquy, and 

7
any explicit factual finding by the trial judge to which the defendant assented,” or “some 

comparable judicial record of this information.” Id. at __, 1257, 1263. 

 Police reports and complaint applications run afoul of Apprendi, said the Court, because 

“[w]hile the disputed fact [in the report] can be described as a fact about a prior conviction, it is 

too far removed from the conclusive significance of a prior judicial record, and too much like the 

findings subject to . . . Apprendi, to say that Almendarez-Torres clearly authorizes a judge to 

resolve the dispute.” Id. at __, 1262. 

But such disputed documents were not used here. The trial court’s finding that Ryle was 

on probation at the time of the present offense rested on prior judicial records as reflected in the 

presentence investigation report prepared by the probation officer. (Appellant’s App. at 136-38.) 

The probation officer compiled information on Ryle’s criminal history and probation 

status for the presentence investigation report in this case by referring to case files from the 

courts in which Ryle was convicted. (Appellant’s App. at 136.) The report indicated that Ryle 

was convicted of possession of cocaine and a firearm, and conspiracy to commit dealing cocaine 

in 2000. (Appellant’s App. at 137.) Ryle was to serve two years of probation after his release 

from prison for these convictions. (Id.) According to the Department of Correction documents, 

his release date was January 20, 2003, just five weeks before the present offense. (State’s 

Sentencing Ex. 1.) A probation violation notice was filed in the 2000 case. (Appellant’s App. at 

138.) The presentence investigation report relies on “judicial record[s]” that guarantee the 

conclusive significance that is the focus of Apprendi. Shepard, 544 U.S. at __, 125 S.Ct. at 

1263. 

Conclusion 

 We affirm Ryle’s sentence. 

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

8