ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

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 

ROSE M. SOWDERS, 

 Appellant (Defendant below), 

v. 

STATE OF INDIANA, 

 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 Indiana 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. 

1
Facts 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, including: 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 close range, defenseless victims, the young age of one 

of the victims, a demonstrated level of callousness, and a fair amount of time for reflection 

between murders). The court found two mitigating 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 consecutively. 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 various aggravating factors that were neither 

prior convictions, nor reflected in the jury’s verdict, 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 violate 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. 

2
Conclusion 

 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 unless the State elects to 

prove aggravating circumstances before a jury. 

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

Sullivan, J., concurs and dissents with separate opinion. 

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Sullivan, 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 Court’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 Supreme 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 nature of the offense and the character of the 

offender.” Ind. Appellate Rule 7(B). 

I believe that a sentence in the order of magnitude 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 whatsoever. I have previously expressed the view 

that absence of criminal history is the weightiest 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) 

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(reduction of defendant’s 65-year sentence to the 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 court 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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