A TTORNEYS FOR A PPELLANT A TTORNEYS FOR A PPELLEE Joel M. Schumm Steve Carter Ann M. Sutton Attorney General of Indiana Marion County Public Defender Agency Indianapolis, Indiana Matthew D. Fisher Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 49S04-0507-CR-321

R ANDAL Y OUNG , Appellant (Defendant below)
,

v.

S TATE OF I NDIANA , Appellee (Plaintiff below)

.

_________________________________ Appeal from the Marion County Superior Court, No. 49G06-0309-FB-151740 The Honorable Jane Magnus-Stinson, Judge

_________________________________ On Petition to Transfer from the Indi ana Court of Appeals, No. 49A04-0403-CR-143

_________________________________ October 4, 2005
Sullivan, Justice.

Defendant Randal Young pled guilty to seven counts of Robbery as a Class B felony and one count of Robbery as a Cla ss C felony after a crime spree during which he committed armed robberies of seven Indianapolis businesses. In return, the State dismissed several other felony and misdemeanor counts arising out of these incide nts. Under the terms of the plea agreement,the State and Defendant agreed that the maxi mum sentence that the trial court could impose would be 50 years. 1

Under the criminal sentencing statutes in effect at the time, the following sentencing ranges were available to the trial court in respect of the felony counts:

Class B felony: presumptive te rm of ten years, with not more than ten years added for aggravating circumstances or not more than four years subtracted for mitigating circumstances. Ind. Code § 35-50-2-5 (1998).
Class C felony: presumptive term of four years, with not more than four years added for aggravating circumstances or not more than two years subtracted for mitigating circumstances. Ind. Code § 35-50-2-6 (1998).

In sentencing Defendant, the trial court enhan ced the presumptive sentence of ten years on each of the seven Class B felony counts to 12 years and the presumptive sentence of four years on the one Class C felony count to five year s. The 12-year sentences on three of the Class B Robbery counts were imposed consecutively to one another; the remaining sentences were imposed concurrently. As is apparent, this resulte d in a total sentence of 36 years; because four years on each of the Class B felony counts were suspended, the total executed sentence was 24

years.

Six weeks after Defendant was sentenced, the United States Supreme Court decided Blakely v. Washington , 542 U.S. 296 (2004). We subsequently interpreted Blakely to dictate that sentences imposed under Indiana law can viol ate the Sixth Amendment to the United States Constitution when aggravating circumstances f ound by the trial court are not based on facts found to exist by a jury. Smylie v. State , 823 N.E.2d 679, 685 (Ind. 2005). However, Blakely does not require a jury finding to increase a senten ce based on “‘the fact of a prior conviction.’”

1 The State contends that because th e sentence imposed by the trial court was less than 50 years, the maximum Defendant agreed to in the plea agreement, Defenda nt is not entitled to appeal his sentence at all. Because of the way we resolve this case, we do not addr ess this issue, which is before the Court in two pending cases. See Carroll v. State , No. 61A04-0409-CR-483, 2005 Ind. App. LEXIS 810 (Ind. Ct. App. May 4, 2005), transfer pending , and Childress v. State , No. 61A01-0409-CR-391, 826 N.E.2d 165 (Ind. Ct. App. 2005), transfer pending

.

2Morgan v. State , 829 N.E.2d 12, 15 (Ind. 2005) (quoting Apprendi v. New Jersey , 530 U.S. 466, 490 (2000)). Nor does it require a jury finding to increase a sentence based on facts ‘“admitted by the defendant.’” Id. at 17 (quoting United States v. Booker , 125 S.Ct. 738, 756 (2005)).

As noted, the trial court, acting before Blakely was decided, enhanced the sentences on each of the counts to which Defendant pled gu ilty. Because this case was on appeal when Blakely was decided and Defendant timely appealed his sentence, he is entitled to argue that the trial
court violated Blakely in imposing the sentence it did. Smylie , 823 N.E.2d at 690-91.

The Court of Appeals affirmed the sentence imposed by the trial court, finding that the
trial court did not violate Blakely when it enhanced the presum ptive sentence on each of the counts on grounds that Defendant had “committed mu ltiple violent crimes within a short period
of time.” Young v. State , 826 N.E.2d 665, 669 (Ind. Ct. App. 2005). That is, because Defendant had admitted when he pled guilty that he had gone on a “crime spree,” the trial court was entitled
to use that admission to enhance his sentence. Id. We granted transfer. Young v. State , No. 49S04-0507-CR-321, 2005 Ind. LEXIS 604 (Ind. July 13, 2005). 2

We think the application by the Court of A ppeals of the “admitted by the defendant” alternative to the Blakely rule was not supported by authority and unnecessary in this instance. This is “because the trial court might have impos ed essentially the same [amount] of jail time by ordering other sentences served consecutively, see [Ind. Code] § 35-50-1-2, and a court’s authority to order consecutive sentences was not affected by Blakely .” Estes v. State , 827 N.E.2d 27, 29 (Ind. 2005) (citing Smylie , 823 N.E.2d at 686).

We believe this case is most expeditiously resolved by, as we did in the recent case of
Williams v. State , 827 N.E.2d 1127, 1128 (Ind. 2005), altering the sentences ourselves within the
bounds of Blakely using our constitutional power to review and revise sentences. Ind. Const. art. VII, § 4. We vacate the trial court’s sentences for each count and remand with instructions: (1) to impose the presumptive sentence of 10 years on each of the seven Class B felony counts; (2)

2 In addition to its disposition of the Blakely claim, the Court of Appeals also rejected Defendant’s claim that his sentence was inappropriate in light of the natu re of the offense and character of the offender. We summarily affirm this portion of the opinion of the Court of Appeals. Ind. Appellate Rule 58(A)(2).

3to impose the presumptive sentence of four year s on the one Class C felony count; (3) to impose the 10-year sentences on three of the Class B Robbery counts consecutive to one another and also consecutive to the four-year sentence on the one Class C felony count; (4) to impose the remaining sentences concurrently; and (5) to susp end three years of the 10-year sentence on each of the three Class B Robbery counts and also su spend one year of the four-year sentence on the Class C felony count. As is apparent, this results in a total sentence of 34 years and a total executed sentence of 24 years. The trial court, w ithout need for an additional sentencing hearing,
shall determine the order in which the consecutive sentences shall run.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

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