(Footnote omitted). Judge Vaidik's dissent can be boiled down fairly, I think, to this snippet:
More importantly, perhaps, is a footnote giving the first appellate blessing that I know of to sentencing juries in Indiana, despite the lack of any statutory authority for such a creature:
Trusley directs us to no statute or case law that explicitly states a trial court may not convene a jury for sentencing proceedings that do not involve habitual offenders. We decline to hold that the legislature’s reference to jury hearings in habitual offender proceedings must necessarily be read to prohibit jury involvement in any other sentencing proceeding. We must interpret a statute in a way that renders it constitutional. Dep’t of Revenue of State of Ind. v. There To Care, Inc., 638 N.E.2d 871, 873 (Ind. Ct. App. 1994), trans. denied. When a statute can be construed to support its constitutionality, that construction must be adopted. Id. Trusley’s interpretation of Ind. Code § 35-38-1-3 as prohibiting jury involvement in the factfinding process for determining the existence of aggravating circumstances would almost certainly render Ind. Code § 35-38-1-3 unconstitutional as violative of the Blakely standard. We therefore decline to adopt that interpretation.
This is very reminiscent of Justice Dickson's suggestion during the Heath and Smylie arguments that courts could construe "shall" to mean "may" to save a statute. In this case, Indiana Code § 35-38-1-3(3) specifically says that it the "court" that is to do the finding of aggravating and mitigating circumstances. So if "shall" can become "may," I guess "court" can become "jury."
Notably, there is nothing facially unconstitutional about § 35-38-1-3. A court may constitutionally find all of the aggravating circumstances it likes. Blakely merely restricts what a court may do with aggravating circumstances it, and not a jury, has found. So the Court of Appeals has reinterpreted a statute that is constitutional on its face in order to save a particular application of the statute.
I really invite comments from anyone who has seen any other court do something like this. This is unique in my experience.