Well, Heath made its appearance today. Perhaps the Five were talking about some difference between it and Smylie, and decided to treat them the same. If not, there doesn't appear to be anything on the face of the opinion that would have prevented it from being issued together with Smylie.
In short, Heath adds nothing, although it does reiterate the State's option on remand of trying the aggravating circumstances to a jury.
The opinion also says nothing about the common law crimes or double jeopardy problems that may arise when treating aggravating circumstances as elements. The three aggravating circumstances recited in the opinion are:
1) the crime was committed in the presence of a person less than 18-years-old; 2) there were many unarmed observers in extreme danger nearby; and 3) the circumstances represented the “[w]orst type of Class D Criminal Recklessness facts.”
None of these are statutory aggravators. Sooner or later the court is going to have to address whether use of non-statutory aggravators under the now-defunct sentencing regime amounts to the creation of common law crimes. Also, if these aggravators are now elements, Heath has already been convicted of the lesser offense that do not include these elements. Does the State get to go back and retry Heath for the now greater offense that includes these aggravators?
Perhaps Smylie and Heath implicitly decide these issues by remanding the cases for jury trials of the aggravators at the State's option. It seems to me that the issues are both presented by the cases, at least in the context of the court's actions in both, and important enough to warrant decision by discussion.
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