- There is not a word about procedural default, although we know the State argued it. The court merely decides the case--also without saying the magic words "fundamental error."
- The court sets aside entirely aggravating circumstances subject to Blakely and says the sentence is not sustainable only on the basis of a minimal criminal history.
- The court remands "for further proceedings consistent with this opinion" without saying anything about what proceedings might be permissible either procedurally or on double jeopardy grounds.
Traylor is a long opinion, so I will pull out the essential Blakely/Apprendi portion of it below. Stacy Uliana's prevailing briefs in Word format are here and here.
Traylor was subsequently found guilty by a jury and convicted of dealing (manufacturing) in methamphetamine over three grams as a Class A felony, possession of methamphetamine over three grams as a Class C felony, and visiting a common nuisance as a Class B misdemeanor. The trial court sentenced him to forty years for the Class A felony conviction, six years for the Class C felony conviction, and 180 days for the Class B misdemeanor conviction, all sentences to be served concurrently. Additionally, the trial court imposed a $10,000 fine and required Traylor to pay a $1,000 drug fee.
. . . .
Under Indiana law, after a jury returns a guilty verdict, the trial court can only impose the presumptive sentence, as outlined in the statute, without finding any additional facts. Therefore, the presumptive sentence for an offense is the prescribed statutory maximum for Apprendi/Blakely purposes. For Traylor’s Class A felony conviction, the presumptive sentence was thirty years. See Ind. Code § 35-50-2-4. For his Class C felony conviction, the presumptive sentence was four years. See Ind. Code § 35-50-2-6.
Traylor was sentenced to an enhanced term of forty years for the Class A felony conviction and an enhanced term of six years for the Class C felony conviction. In enhancing Traylor’s sentences, the trial court found the following aggravating circumstances: (1) there is a great risk that Traylor will commit another crime; (2) the particularized nature and circumstances of the crime committed; (3) Traylor’s prior criminal history; (4) Traylor’s character; and (5) Traylor is in need of correctional and rehabilitative treatment that can best be provided by commitment to a penal facility.
Under Apprendi, “[o]ther 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.” Apprendi, 530 U.S. at 490 (emphasis added). Because the aggravating circumstances upon which the trial court enhanced Traylor’s sentences were not submitted to a jury and proved beyond a reasonable doubt, under Apprendi, only Traylor’s prior criminal convictions could be used by the trial court to enhance Traylor’s sentences in this case.
Traylor contends, however, that it was improper for the trial court to enhance his sentences based on his prior criminal history. We agree. Traylor’s prior criminal history consists of one misdemeanor conviction in 1998 for battery. The trial court noted that it found “this to be an aggravating factor of minimal weight.” Appellant’s Appendix at 494. A misdemeanor battery conviction nearly five years before the instant offenses, standing alone, is insufficient to enhance Traylor’s sentences. See, e.g., Newsome v. State, 797 N.E.2d 293, 300 (Ind. Ct. App. 2003), trans. denied (stating that a criminal history that consisted of three fairly recent misdemeanor convictions, two of which were for battery, would not be sufficient, standing alone, to enhance a defendant’s sentence); Westmoreland v. State, 787 N.E.2d 1005, 1010 (Ind. Ct. App. 2003) (concluding that “a criminal history comprised of misdemeanors that are unrelated to the present offense are not significant aggravators in the context of a sentencing hearing for criminal deviate conduct.”); Watson v. State, 784 N.E.2d 515, 523 (Ind. Ct. App. 2003) (holding “a criminal history comprised of two, nonviolent misdemeanors that are unrelated to the present offense are not significant aggravators in the context of a sentencing hearing for battery.”). Therefore, we vacate Traylor’s sentences for his Class A felony conviction and his Class C felony conviction, and we remand this cause to the trial court for further proceedings consistent with this opinion. See footnote
. . . .
Under Indiana law, after a jury returns a guilty verdict, the trial court can only impose the presumptive sentence, as outlined in the statute, without finding any additional facts. Therefore, the presumptive sentence for an offense is the prescribed statutory maximum for Apprendi/Blakely purposes. For Traylor’s Class A felony conviction, the presumptive sentence was thirty years. See Ind. Code § 35-50-2-4. For his Class C felony conviction, the presumptive sentence was four years. See Ind. Code § 35-50-2-6.
Traylor was sentenced to an enhanced term of forty years for the Class A felony conviction and an enhanced term of six years for the Class C felony conviction. In enhancing Traylor’s sentences, the trial court found the following aggravating circumstances: (1) there is a great risk that Traylor will commit another crime; (2) the particularized nature and circumstances of the crime committed; (3) Traylor’s prior criminal history; (4) Traylor’s character; and (5) Traylor is in need of correctional and rehabilitative treatment that can best be provided by commitment to a penal facility.
Under Apprendi, “[o]ther 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.” Apprendi, 530 U.S. at 490 (emphasis added). Because the aggravating circumstances upon which the trial court enhanced Traylor’s sentences were not submitted to a jury and proved beyond a reasonable doubt, under Apprendi, only Traylor’s prior criminal convictions could be used by the trial court to enhance Traylor’s sentences in this case.
Traylor contends, however, that it was improper for the trial court to enhance his sentences based on his prior criminal history. We agree. Traylor’s prior criminal history consists of one misdemeanor conviction in 1998 for battery. The trial court noted that it found “this to be an aggravating factor of minimal weight.” Appellant’s Appendix at 494. A misdemeanor battery conviction nearly five years before the instant offenses, standing alone, is insufficient to enhance Traylor’s sentences. See, e.g., Newsome v. State, 797 N.E.2d 293, 300 (Ind. Ct. App. 2003), trans. denied (stating that a criminal history that consisted of three fairly recent misdemeanor convictions, two of which were for battery, would not be sufficient, standing alone, to enhance a defendant’s sentence); Westmoreland v. State, 787 N.E.2d 1005, 1010 (Ind. Ct. App. 2003) (concluding that “a criminal history comprised of misdemeanors that are unrelated to the present offense are not significant aggravators in the context of a sentencing hearing for criminal deviate conduct.”); Watson v. State, 784 N.E.2d 515, 523 (Ind. Ct. App. 2003) (holding “a criminal history comprised of two, nonviolent misdemeanors that are unrelated to the present offense are not significant aggravators in the context of a sentencing hearing for battery.”). Therefore, we vacate Traylor’s sentences for his Class A felony conviction and his Class C felony conviction, and we remand this cause to the trial court for further proceedings consistent with this opinion. See footnote
In the footnote, the court says:
We note that in Carson v. State, 813 N.E.2d 1187 (Ind. Ct. App. 2004), a panel of this court held a trial court did not err, under Apprendi/Blakely, in enhancing a defendant’s sentence, based on the following aggravating circumstances: prior criminal history; a need for corrective or rehabilitative treatment best provided by commitment to a penal facility; and the strong likelihood that the defendant would commit another crime. Id. at 1189. After stating that prior criminal convictions are exempt from the requirement of jury findings under Apprendi, the panel held the other two aggravating circumstances “are simply derivative of that extensive history of convictions and thus would seem also not to implicate the Blakely analysis.” Id. at 1189. Because we hold Traylor’s one misdemeanor criminal conviction five years ago is not a proper aggravator to enhance his sentence, any circumstances that may or may not derive from his prior criminal history also are not proper aggravators to enhance Traylor’s sentences.
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