ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Kenneth R. Martin Steve Carter 

Goshen, IN Attorney General of Indiana 

Monika Prekopa Talbot 

Deputy Attorney General 

 Indianapolis, IN 

In the 

Indiana Supreme Court _________________________________ 

No. 20S04-0506-CR-00277 

LISA C. MORGAN, 

 Appellant (Defendant below), 

v. 

STATE OF INDIANA, 

 Appellee (Plaintiff below). 

_________________________________ 

Appeal from the Elkhart Circuit Court, No. 20C01-0309-FA-00169 

The Honorable Terry C. Shewmaker, Judge 

_________________________________ 

On Petition to Transfer from the Indiana Court of Appeals, No. 20A04-0404-CR-00239 

_________________________________ 

June 15, 2005 

Shepard, Chief Justice.

Lisa Morgan has appealed her sentence for dealing methamphetamine on a variety of 

grounds, including an adequately preserved claim under Blakely v. Washington, 542 U.S. __, 

124 S.Ct. 2531 (2004). Her appeal produces three conclusions about post-Blakely sentencing 

under our then existing code: 1) aggravators that may be found by a judge alone must still be 

weighed to determine whether they warrant sentence enhancement; 2) sentence enhancements 

may rest upon facts acknowledged by the defendant; and 3) observations a court makes about 
such factors may reflect on the weight of acknowledged facts or prior convictions but are not 

themselves separate aggravators. 

Facts and Procedural History 

On September 23, 2003, Lisa Morgan was arrested while attempting to arrange the sale of 

methamphetamine to an undercover police officer. Following her apprehension, police searched 

Morgan and her vehicle and uncovered thirty-eight grams of methamphetamine, several items of 

drug paraphernalia, and a drug ledger. 

 The State charged Morgan for possession of methamphetamine in excess of three grams 

with intent to deliver, a class A felony. Ind. Code Ann. § 35-48-4-1 (West 2004). Morgan 

eventually pled guilty to the charge pursuant to a plea agreement that dismissed an unrelated 

charge of theft pending against her. 

 At a sentencing hearing on April 1, 2004, the court found four aggravating 

circumstances: 1) Morgan had a prior class B felony conviction for delivery of a controlled 

substance; 2) she committed the offense while she was on probation; 3) she intended to sell the 

methamphetamine for profit; and 4) that previous punishments had failed to rehabilitate Morgan. 

The trial court also found five mitigating factors: 1) Morgan’s age; 2) her willingness to accept 

responsibility for her conduct; 3) Morgan’s history of psychological issues; 4) her drug 

addiction; and 5) the existence of family support. 

 After concluding that the aggravating factors outweighed the mitigating factors, the court 

added five years to the standard fixed term of imprisonment, for a total penalty of thirty-five 

years. 

 Morgan appealed her sentence. In an amended brief, Morgan advanced two contentions. 

First, she claimed that the sentencing court considered improper aggravators and wrongly 

balanced the aggravating and mitigating factors. Second, she argued that U.S. Supreme Court’s 

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ruling in Blakely v. Washington required her sentence be set aside because the aggravators were 

not found by a jury. (Appellant’s Am. Br. at 5.) 

 The Court of Appeals rejected both of Morgan’s arguments. Morgan v. State, No. 

20A04-0404-CR-00239, slip op. at 4-9 (Ind. Ct. App. Dec. 7, 2004). We grant transfer. 

Framework of the Sentencing Claim 

Morgan properly preserved her Blakely claim by challenging her sentence in her initial 

brief, even though she did not specifically mention Blakely until the filing of an amended brief. 

See Smylie v. State, 823 N.E.2d 679, 689-91 (Ind. 2005). 

At the core of both of Morgan’s arguments is a challenge to the propriety of the 

aggravators. The trial court found four: 1) Morgan’s prior conviction; 2) that she committed the 

offense while she was on probation; 3) that she intended to sell the methamphetamine for profit; 

and 4) that previous punishments had failed to rehabilitate Morgan. Morgan argues that the last 

three of these aggravators were improperly considered either because they should have been 

submitted to a jury, or because the trial court improperly applied and weighed legitimate 

aggravators. (Pet. to Transfer at 4-5.) 

We note that the State readily conceded that the third aggravator, that Morgan intended to 

sell the drugs for profit, was improper (Appellee’s Am. Br. at 5.) and we agree that the trial court 

erred in considering this as an aggravating circumstance. 

I. Not All Aggravtors/Mitigators Weigh the Same 

 

Morgan concedes that the trial court could find that her prior conviction for delivery of a 

controlled substance was an aggravating circumstance without submitting the question to a jury, 

consistent with the Sixth Amendment. Her concession is based on the fact that the general Sixth 

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Amendment rule that “any fact that increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury” contains an exception for “the fact of a prior 

conviction.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). See also Smith v. State, 825 

N.E.2d 783 (Ind. 2005). However, Morgan asserts that it is “ questionable, . . . , as to whether 

[her] criminal record, standing alone, [is] a sufficient aggravator to support any enhancement 

above the presumptive term.” (Appellant’s Am. Br. at 17.) 

While a sentence enhanced because it is based on the fact of a prior conviction does not 

violate the Sixth Amendment, the question of whether the sentence should be enhanced and to 

what extent turns on the weight of an individual’s criminal history. This weight is measured by 

the number of prior convictions and their seriousness, by their proximity or distance from the 

present offense, and by any similarity or dissimilarity to the present offense that might reflect on 

a defendant’s culpability. 

We Indiana judges often recite that “a single aggravator is sufficient to support an 

enhanced sentence.” While there are many instances in which a single aggravator is enough, this 

does not mean that sentencing judges or appellate judges need do no thinking about what weight 

to give a history of prior convictions. The significance of a criminal history “varies based on the 

gravity, nature and number of prior offenses as they relate to the current offense.” Wooley v. 

State, 716 N.E.2d 919, 929 n.4 (Ind. 1999). We observed in Wooley that “a criminal history 

comprised of a prior conviction for operating a vehicle while intoxicated may rise to the level of 

a significant aggravator at a sentencing hearing for a subsequent alcohol-related offense. 

However, this criminal history does not command the same significance at a sentencing hearing 

for murder.” Id. A different example might help illustrate the same point. A conviction for theft 

six years in the past would probably not, standing by itself, warrant maxing out a defendant’s 

sentence for class B burglary. But, a former conviction for burglary might make the maximum 

sentence for a later theft appropriate. See also Hollen v. State, 761 N.E.2d 398 (Ind. 2002). 

Certainly not all cases will produce as clear-cut a separation between significant and nonsignificant prior convictions as these examples. The need for clarity and careful weighing, made 

by reference to appropriate prior criminal convictions, is more pronounced than ever given the 

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increased importance prior criminal convictions play in the sentencing process in a post-Blakely

world. 

Morgan’s class B conviction for delivering a controlled substance was certainly worthy 

of some weight because of the similarity and proximity to the present offense. Given the number 

of mitigating factors found by the court, however, we think that her criminal record, standing on 

its own, would not support the imposition of the enhanced sentence. 

II. Some Sentencing Factors Are Acknowledged 

Morgan contends that only a jury could find the second aggravator considered by the 

court -- that she had committed the present crime while on probation for another offense. 

Morgan’s appeal does not actually present this question, because Morgan acknowledged 

during the sentencing hearing the fact that she was on probation. The exchange between the trial 

judge and Morgan on this point is as follows: 

The Court: [Y]ou and your counsel convinced Judge Platt to send you to the 

Indiana Department of Corrections for ten years but suspend it and put you on 

probation. . . . . Right? 

Ms. Morgan: Yes. 

The Court: And then you got arrested for theft while you were on probation from 

Judge Platt. Correct? 

Ms. Morgan: Yes. 

The Court: And five months later you got arrested for this charge. Correct? 

Ms. Morgan: Yes. . . . 

The Court: There’s no question you’re guilty of this offense. Correct? 

Ms. Morgan: Yes. 

The Court: There’s no question you had a prior felony, and you were out dealing 

while you were on probation for dealing. Correct? 

Ms. Morgan: Yes. 

(Tr. at 13, 15.) 

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Because Morgan admitted to the fact that she was on probation at the time of her arrest it 

was permissible for the trial court to consider that fact as an aggravating circumstance without 

submitting it to a jury. As the Court in Blakely stated, “nothing prevents a defendant from 

waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial 

sentencing enhancements so long as the defendant either stipulates to the relevant facts or 

consents to judicial factfinding.” Blakely, 542 U.S. at __, 124 S.Ct. at 2541. See also United 

States v. Booker, 543 U.S. __, 125 S.Ct. 738, 756 (2005) (“Accordingly, we reaffirm our holding 

in Apprendi: Any fact . . . which is necessary to support a sentence exceeding the maximum 

authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the 

defendant or proved to a jury beyond a reasonable doubt.”) (emphasis added). 

In this case, the record of the sentencing hearing clearly indicates that Morgan admitted 

to the fact that she was on probation at the time she committed the instant offense. As a result, 

the court could properly consider this fact in sentencing her to a term above the presumptive. 

III. Judicial Statements About Aggravators 

The fourth aggravator was that prior punishments had failed to rehabilitate Morgan. We 

conclude that such statements, which our Court of Appeals has called “derivative” of criminal 

history, are legitimate observations about the weight to be given to facts appropriately noted by a 

judge alone under Blakely. They cannot serve as separate aggravating circumstances. 

 In response to the holdings in Blakely and Smylie, this Court and the Court of Appeals 

have received a good many appeals alleging that sentences imposed by this state’s trial courts 

were unconstitutional because they were enhanced beyond the presumptive term by the presence 

of aggravators not found by a jury beyond a reasonable doubt. Like Morgan, a number of other 

appellants challenge the imposition of the sentence in part because the precise language of the 

aggravator used to enhance the sentence was not submitted to the jury or admitted by the 

defendant. We conclude instead that in some of these cases the trial court appears to have relied 

either on facts implicit in the jury’s finding, or on facts admitted by the defendant in choosing to 

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articulate a particular aggravator. A good example of this sort of challenge is this case, in which 

Morgan argues that because she was never specifically questioned regarding, nor specifically 

admitted to, the fact that “previous punishments had failed to rehabilitate” the trial court 

impermissibly found that aggravator. 

 

 The Court in Booker described the Sixth Amendment right of a criminal defendant to a 

jury trial, as articulated in Blakely, and suggested that the right is only violated “whenever a 

judge seeks to impose a sentence that is not solely based on ‘facts reflected in the jury verdict or 

admitted by the defendant.’” Booker, 543 U.S. __, 125 S.Ct. at 749 (emphasis added) (quoting 

Blakely, 542 U.S. __, 124 S.Ct. at 2537). We do not see how the Sixth Amendment is 

implicated or endangered by permitting judges to use aggravators to enhance sentences so long 

as the underlying facts supporting the aggravator are found by a jury or admitted by a defendant. 

Put another way, Sixth Amendment rights are not implicated when the language of an 

aggravator is meant to describe the factual circumstances, not to serve as a fact itself. This is 

certainly the case with an aggravator such as “failed to rehabilitate” or “failed to deter” where the 

language used is not itself a fact. Such observations merely describe the moral or penal weight 

of actual facts. The “fact” of being undeterred is not established by a statement to that effect, but 

rather by the underlying fact of prior convictions. Indeed, Blakely “left in tact [sic] the trial 

judge’s authority to determine whether facts alleged and found are sufficiently substantial and 

compelling to warrant imposing an exceptional sentence . . . . [T]hat decision is a legal judgment 

which, unlike factual determinations, can still be made by the trial court.” State v. Hughes, 110 

P.3d 192, 202 (Wash. 2005) (relying in part on Blakely, 124 S.Ct. at 2538 n.8). 

The aggravators in such instances are not found by the separate inquiry of a judge, but 

rather by reference to facts already admitted by the defendant or found by a jury. Thus the use of 

such underlying facts to support an aggravator does not require the independent judicial factfinding at issue in Blakely. Rather, it reflects the efforts of a judge to describe in a concise 

manner what the underlying facts mean, and why they demonstrate that a particular defendant 

deserves an enhanced sentence. 

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 Because the use of underlying facts to support an enhanced sentence does not violate the 

Sixth Amendment requirements of Blakely by allowing impermissible independent judicial fact 

finding, we hold that sentences enhanced by aggravators whose language is not specifically 

found by a jury or admitted by the defendant, are not necessarily impermissible so long as the 

aggravator in question was 1) supported by facts otherwise admitted or found by a jury and 2) 

meant as a concise description of what the underlying facts demonstrate and therefore relies upon 

a legal determination otherwise reserved as a power of the judge. 

Disposition 

Of the four aggravators found by the trial court, two are valid under Blakely, one was 

conceded by the State to be improper under state law, and one was a conclusion about the weight 

of the first two. The trial court found five valid mitigating circumstances, as described above. 

We believe these were collectively in equipoise and direct the trial court to revise the sentence to 

the standard term of thirty years. 

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

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