A TTORNEYS FOR A PPELLANT A TTORNEYS FOR A PPELLEE Susan Carpenter Steve Carter Public Defender of Indiana Attorney General of Indiana
Mary Joan Hamilton Cynthia L. Ploughe Deputy Public Defender Deputy Attorney General Bloomington, IN Indianapolis, IN


# In the 

# Indiana Supreme Court

_________________________________ No. 53S01-0506-CR-278

R OSE M. S OWDERS , Appellant (Defendant below),

v.

S TATE OF I NDIANA , Appellee (Plaintiff below)

.

_________________________________ Appeal from the Monroe Circuit Court, No. 53C04-0208-MR-00787 The Honorable Elizabeth N. Mann, Judge

_________________________________ On Petition to Transfer from the Indi ana Court of Appeals, No. 53A01-0310-CR-00404

_________________________________ June 16, 2005
SHEPARD, Chief Justice.

Appellant Rose M. Sowders received three consecutive enhanced sentences for murder. While the aggravating circumstances warranted ordering consecutive sentences, using them to
enhance the individual counts violates Blakely v. Washington . We remand for possible further
consideration.

1Facts and Procedural History

Rose M. Sowders pled guilty but mentally ill to three counts of murder. The trial court found a total of four aggravating circumstances, in cluding: 1) a substantial level of planning and aforethought; 2) failure to accept responsibility; 3) a lack of remorse; and 4) certain circumstances of the crimes (shots fired at clos e range, defenseless victims, the young age of one of the victims, a demonstrated level of call ousness, and a fair amount of time for reflection between murders). The court found two mitiga ting circumstances -- no criminal history and mental illness. It sentenced Sowders to sixty-two years for count I, fifty-seven years for count II, and fifty-seven years for count III, all to run c onsecutively. The fixed term presumptive sentence for murder is fifty-five years. Ind. Code Ann. § 35-50-2-3(a) (West 2004).

Analysis

Sowders preserved a Blakely claim in her initial appellate brief by challenging her sentence and arguing Blakely on rehearing. See Smylie v. State , 823 N.E.2d 679, 689-91 (Ind. 2005); (Appellant’s Br. at 9-14). The Court of Appeals affirmed Sowders’ sentence, Sowders v.
State , No. 53A01-0310-CR-00404 (Ind. Ct. App. July 30, 2004), and then denied her petition for rehearing. We grant transfer to address Sowders’ Blakely claim, but summarily affirm the Court of Appeals’ disposition of her claim about certain mitigators. Ind. Appellate Rule 58(A).

Sowders’ enhanced sentences were based on va rious aggravating factors that were neither prior convictions, nor reflected in the jury’s ve rdict, nor admitted by Sowders. Also, Sowders did not stipulate to the relevant facts or consent to judicial factfinding when she pled guilty. The enhancements were thus improper. Blakely , 542 U.S. at __, 124 S.Ct. at 2536-37, 2541; United
States v. Booker , 543 U.S. __, 125 S.Ct. 738, 756 (2005).

The consecutive sentences, however, do not vi olate Sowders’ Sixth Amendment right to trial by jury. See Smylie , 823 N.E.2d at 686. The aggravating circumstances the court found were adequate to support consecutive sentences.

2Conclusion

We vacate the trial court’s enhancement of the sentences for each crime and remand with instructions to impose three consecutive sentences of fifty-five years unle ss the State elects to prove aggravating circumstances before a jury.

Dickson, Boehm, and Rucker, JJ., concur. Sullivan, J., concurs and dissents with separate opinion.

3Sullivan, Justice, concurring and dissenting.

I agree with the Court that Sowders’s sentence enhancements are not permitted under Blakely . I respectfully dissent, however, from the C ourt’s decision to remand the case to the trial court with instructions to impose an executed sentence of 165 years (with the potential of even more if the State elects to prove aggravating circumstances before a jury).

The Indiana Constitution provides, “The Supr eme Court shall have, in all appeals of criminal cases, the power to . . . review and revise the sentence imposed.” Ind. Const. art. VII, § 4. Pursuant to this authority, we have provided by rule that “[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 na ture of the offense and the character of the offender.” Ind. Appellate Rule 7(B).

I believe that a sentence in the order of ma gnitude sanctioned by the Court here (at least 165 years, with the potential of even more) is not appropriate in light of the nature of this offense and the character of this offender. I would exercise our authority to review and revise sentences to reduce the sentence imposed in this case.

The multiple murders committed here are aggravating circumstances entitled to weight in the highest range. But I also believe that there are mitigating circumstances here entitled to significant weight.

First, Sowders had no criminal history whatsoev er. I have previously expressed the view that absence of criminal history is the we ightiest of all mitigating circumstances. Prowell v.
State , 687 N.E.2d 563, 572 (Ind. 1997) (Sullivan, J., dissenting), post-conviction relief granted
, 741 N.E.2d 704 (Ind. 2001).

Second, a trial court’s judgment of guilty but mentally ill has regularly been given mitigating weight by this Court. See, e.g. , Crawford v. State , 770 N.E.2d 775, 783 (Ind. 2002)

4(reduction of defendant’s 65-year sentence to th e presumptive 55 years in part due to the “significant mitigating circumstance” of defendant’s mental illness); Weeks v. State , 697 N.E.2d 28, 31 (Ind. 1998) (reduction of defendant’s 60-year sentence to the presumptive sentence of 50 years due to defendant’s mental illness); Archer v. State , 689 N.E.2d 678, 685-86 (Ind. 1997) (defendant’s long-standing mental illness should have been considered as a mitigator and therefore warranted a reduction in defendant’s total sentence); Gambill v. State , 675 N.E.2d 668, 677-78 (Ind. 1996) (defendant’s mental illness was a substantial mitigator calling for the imposition of the presumptive sentence); Mayberry v. State , 670 N.E.2d 1262, 1271 (Ind. 1996) (finding an abuse of discretion where the trial c ourt failed to consider defendant’s mental illness as a mitigator; remanded for imposition of presumptive sentence); Barany v. State , 658 N.E.2d 60, 67 (Ind. 1995) (finding a relationship between defendant’s mental illness and the commission of the crime; remanded for imposition of presumptive sentence).

Third, a guilty plea demonstrates a defendant’s acceptance of responsibility for the crime.
Scheckel v. State , 655 N.E.2d 506, 511 (Ind. 1995). A guilty plea further extends a benefit to the
State and the victim or the victim’s family by avoiding a full-blown trial. Id . Thus, a defendant who pleads guilty deserves to have some mitigating weight extended to the guilty plea in return.
Id

. Accord
, Widener v. State , 659 N.E.2d 529, 534 (Ind. 1995); Hardebeck v. State , 656 N.E.2d 486, 493 (Ind. Ct. App. 1995), trans. denied

.

Based on these considerations, I would reduce the sentence imposed in this case.

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