Aggravators and Mitigators

Background information: Relevant United States Supreme Court precedent

• In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the [United States] Supreme Court held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Four years later, in Blakely v. Washington, 542 U.S. 296, 303-04 (2004), reh’g denied, the [United States] Supreme Court applied the Apprendi rule to the statutory sentencing scheme in Washington. The Washington sentencing scheme provided for a “standard range,” but the trial judge could impose a sentence above the standard range if he found substantial and compelling reasons to justify an exceptional sentence. Blakely v. Washington, 542 U.S. 296, 299 (2004), reh’g denied. The Court held that the “statutory maximum” in Washington's sentencing scheme was the standard range because a finding that additional facts existed was necessary to impose a greater sentence. Blakely v. Washington, 542 U.S. 296, 303-04 (2004), reh’g denied. The Court further held that the existence of additional facts to support a sentence longer than the “statutory maximum” must be determined by a jury to avoid running afoul of Apprendi. Blakely v. Washington, 542 U.S. 296, 303-04 (2004), reh’g denied.

Walsman v. State, 855 N.E.2d 645, 649 (Ind. Ct. App. 2006), reh’g denied

Background information: “Presumptive” sentences vs. “advisory” sentences

• [At the time that Blakely was decided,] Indiana's sentencing laws established a “presumptive” sentence and a “range” for each class of felony and misdemeanor. A sentence could be enhanced or reduced from the presumptive sentence based on aggravating or mitigating circumstances found by the trial judge.

Robertson v. State, 871 N.E.2d 280, 283 (Ind. 2007)

• In Smylie v. State, 823 N.E.2d 679 (Ind. 2005), cert. denied, 546 U.S. 976 (2005), [the Indiana Supreme Court] held that this Indiana sentencing scheme violated the Sixth Amendment as explained in Blakely because a sentence greater than the presumptive sentence required additional facts, but those facts were neither found by a jury nor admitted by the defendant.

Robertson v. State, 871 N.E.2d 280, 283 (Ind. 2007)

• The [Indiana] legislature responded to Blakely by eliminating the requirement that the sentencing judge find aggravating circumstances before imposing a sentence greater than the presumptive. Effective April 25, 2005, the legislature amended the sentencing statutes to replace “presumptive” sentences with “advisory” sentences and to authorize the sentencing court in its discretion to impose any sentence within the statutory range.

Robertson v. State, 871 N.E.2d 280, 283 (Ind. 2007)

• “[A]dvisory sentence” means a guideline sentence that the court may voluntarily consider when imposing a sentence.

IC 35-50-2-1.3

• Under the sentencing statutes as amended, the range for each sentence remained the same as the range under the former presumptive sentence . . . .

Walsman v. State, 855 N.E.2d 645, 649 (Ind. Ct. App. 2006), reh’g denied

Background information: Impact on aggravators and mitigators

• Because the sentencing statute no longer requires a trial court to impose a presumptive sentence except when deviating from it on the basis of aggravating or mitigating circumstances, the correlation between those factors and a given sentence will not be as close as under the presumptive sentencing scheme.

Hamilton v. State, 955 N.E.2d 723, 726 (Ind. 2011)(citing Pedraza v. State, 887 N.E.2d 77, 80 (Ind. 2008))

• Under the new advisory sentencing scheme, “a court may impose any sentence that is authorized by statute and permissible under the Indiana Constitution ‘regardless of the presence or absence of aggravating circumstances or mitigating circumstances.’”

Primmer v. State, 857 N.E.2d 11, 15 (Ind. Ct. App. 2006), trans. denied(quoting Weaver v. State, 845 N.E.2d 1066, 1070 (Ind. Ct. App. 2006), trans. denied(quoting IC 35-38-1-7.1(d)))

• Even though the statute unambiguously declares that a trial judge may impose any sentence within the statutory range without regard to the existence of aggravating or mitigating factors, it is important to note that the statute does not prohibit the judge from identifying facts in aggravation or mitigation.

Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007), as amended (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)

• Indeed the statute requires that if the trial court “finds” the existence of “aggravating circumstances or mitigating circumstances” then the trial court is required to give “a statement of the court's reasons for selecting the sentence that it imposes.” This language suggests a legislative acknowledgement that a sentencing statement identifying aggravators and mitigators retains its status as an integral part of the trial court's sentencing procedure.

Anglemyer v. State, 868 N.E.2d 482, 489-90 (Ind. 2007), as amended (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)(quoting IC 35-38-1-3)

Background information: Sentencing statements

• [C]onstruing what we believe is a legislative intent to retain the traditional significance of sentencing statements we conclude that under the new statutory regime Indiana trial courts are required to enter sentencing statements whenever imposing sentence for a felony offense. . . . [T]he statement must include a reasonably detailed recitation of the trial court's reasons for imposing a particular sentence. If the recitation includes a finding of aggravating or mitigating circumstances, then the statement must identify all significant mitigating and aggravating circumstances and explain why each circumstance has been determined to be mitigating or aggravating.

Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), as amended (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)

Background information: Relevant statutory text

• A court may impose any sentence that is:

(1) authorized by statute; and

(2) permissible under the Constitution of the State of Indiana; regardless of the presence or absence of aggravating circumstances or mitigating circumstances.

IC 35-38-1-7.1(d)(emphasis added)

• Before sentencing a person for a felony, the court must conduct a hearing to consider the facts and circumstances relevant to sentencing. The person is entitled to subpoena and call witnesses and to present information in his own behalf. The court shall make a record of the hearing, including:

(1) a transcript of the hearing;

(2) a copy of the presentence report; and

(3) if the court finds aggravating circumstances or mitigating circumstances, a statement of the court's reasons for selecting the sentence that it imposes.

IC 35-38-1-3(emphasis added)