Neff v. State

849 N.E.2d 556

Kyle NEFF, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 12S02-0606-CR-232.

Supreme Court of Indiana.

June 27, 2006.

COPYRIGHT MATERIAL OMITTED

Stephanie C. Doran, Kokomo, IN, Teresa D. Harper, Bloomington, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 12A02-0411-CR-920

SHEPARD, Chief Justice.

This appeal raises familiar questions regarding the permissibility of aggravators used in sentencing a criminal defendant. It also raises the novel question of whether the appropriate remedy when aggravators are found improper is always remand with opportunity for the State to prove to a jury those aggravators found improper under Blakely. We conclude the Court of Appeals was correct simply to revise Neff's sentence.

Facts and Procedural History

The State charged Neff for his role in helping Elizabeth Balser and Jonathan Yates lure Tabitha Raines to a city park and kill her over a drug dispute. In April 2004, Neff and the State agreed that the prosecution would drop all counts against him except for aiding, inducing, or causing battery as a class C felony if Neff pled guilty to that count and testified against Balser and Yates. The State also granted Neff use and derivative use immunity for his testimony against them. Neff testified against Balser in accordance with the plea agreement, but the jury acquitted. The State dismissed the charges against Yates.

In October 2004, Neff came before the court for sentencing. At the sentencing hearing, the judge identified several mitigating facts, including that incarceration would impose undue hardship on Neff's family, that Neff testified against Balser, and that he pled guilty. As aggravating circumstances, the court cited Neff's criminal record,¹ his failure to "obtain rehabilitative treatment" for his drug use, the failure of prior punishments to rehabilitate him, a substantial risk that he would re-offend, and Neff's commission of the crime while on probation. (Tr. Sent. Hr'g at 54-55.)

The judge articulated his impression of Neff's demeanor and behavior as it related to the crime and the weight to be assigned to the aggravators. In doing so, the judge made apparent reference to Neff's testimony in the Balser trial, saying:

Everyone has said now that [Neff's unwillingness to take responsibility for his actions] has changed and that you are now trying to now go forward with your life. I am impressed with the fact though that your testimony in the Elizabeth Balser case where today you have talked about Tabitha as your friend but I am still startled by your testimony that you took cigarette breaks between the killing of her and delivering her body into the river. I cannot imagine any definition of friendship that would include not being appalled by the killing of your friend and not taking responsibility at that point.

(Tr. Sent. Hr'g at 54.)

Finding the aggravating circumstances outweighed the mitigating, the court sentenced Neff to an eight-year term, adding the maximum allowable four years to the presumptive sentence for class C felonies. It permitted Neff to serve the last two years of his sentence in a community corrections facility.

On appeal, Neff has argued that the trial court improperly considered his immunized testimony and that his sentence violated his Sixth Amendment rights as defined in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Court of Appeals agreed that the trial court had improperly considered Neff's testimony during sentencing and that all the aggravators used by the trial court, except Neff's criminal history, were invalid. Neff v. State, 832 N.E.2d 1006, 1008, 1010 (Ind.Ct.App.2005) vacated. It then reweighed the mitigators against Neff's criminal history and revised Neff's sentence to a six-year term, the last two of which were to be spent in a community corrections work release program. Id. at 1012.

The State sought transfer, contending among other things that the Court of Appeals erred in revising Neff's sentence without remand to the trial court for the option to prove additional aggravators before a jury. (Pet. Transfer at 1-2.) We grant transfer to consider subsequent developments in our case law and the question just posed.

Immunized Testimony

The State argues that the trial court did not improperly rely on Neff's immunized testimony during sentencing because "the court made no indication that the Defendant's prior testimony supported any of the aggravating circumstances." (Pet. Transfer at 6-7.) Whether or not the court made explicit reference to a particular aggravator in discussing Neff's immunized testimony, it is apparent that the immunized testimony came to bear as the court worked to assign appropriate weight to the aggravating and mitigating circumstances. We summarily affirm the Court of Appeals' holding regarding use of that testimony. Ind. Appellate Rule 58(A).²

Two Aggravators Not Really Separate Items

Based on our ruling in Morgan v. State, 829 N.E.2d 12 (Ind.2005), the Court of Appeals correctly disregarded, as separate aggravators, the trial court's finding that previous punishment had failed to rehabilitate Neff, and that he posed a significant risk to re-offend. Neff, 832 N.E.2d at 1010-11. In Morgan we held that aggravators such as "failure to rehabilitate" and "risk to re-offend" are properly categorized as conclusory "observations about the weight to be given to facts." 829 N.E.2d at 17. As such, they "merely describe the moral or penal weight of actual facts" and do not stand as separate aggravators when the factual basis that supports the conclusion also serves as an aggravator. Id. See also Trusley v. State, 829 N.E.2d 923, 927 (Ind.2005).

Probation is a Permissible Aggravator

The Court of Appeals noted the split among its own panels as to whether the fact that a criminal defendant was on probation when he or she committed an offense needed to be admitted or found by a jury beyond a reasonable doubt before it could be considered in aggravation consistent with Blakely. Neff, 832 N.E.2d at 1011-12 vacated. It held that the trial court's finding that Neff was on probation at the time of the instant offense was improper. Id.

We have since decided Ryle v. State, 842 N.E.2d 320 (Ind.2005), holding that probationary status need not to be proven to a jury beyond a reasonable doubt before it can be considered in aggravation. The trial court's use of this aggravator was thus permissible.

Reweighing by Court of Appeals Proper

The State's final contention is that the Court of Appeals erred in revising Neff's sentence without affording it the opportunity to prove additional aggravators before a jury. The State relies on our decisions in Blakely-related cases such as Smylie and Trusley, in which, after invalidating certain aggravators, we remanded to the trial court with instructions to allow the State to seek to prove those aggravators. See Smylie v. State, 823 N.E.2d 679, 687 (Ind.2005); Trusley v. State, 829 N.E.2d 923, 927 (Ind.2005).

On the other hand, in three other Blakely-related cases we revised the sentences imposed without remanding for re-sentencing. See Young v. State, 834 N.E.2d 1015, 1017-18 (Ind.2005); Morgan v. State, 829 N.E.2d 12, 18 (Ind.2005); Williams v. State, 827 N.E.2d 1127, 1129 (Ind.2005).

Our decisions in these cases obviously do not reflect an adherence to a single determinative practice in concluding whether or not to remand a case with the option to prove additional aggravators. Rather, they indicate that the decision is the result of a complex calculus that must take account of numerous considerations. We illustrate that calculus here in the hope that it will provide basic guidelines when dealing with Blakely-related litigation.

In both Smylie and Trusley, we invalidated numerous aggravators as they were never submitted to a jury nor admitted by the defendant. In Smylie, we held improper all the aggravators used to impose the enhanced sentences. Those aggravators were "1) Smylie's pattern of criminal activity, 2) his position of trust with the victim, 3) the effect of the crime on the victim, and 4) the imposition of a reduced or suspended sentence would depreciate the seriousness of the crime." 823 N.E.2d at 682. In Trusley, we invalidated three of the five aggravators found by the trial court. In particular, we held that the fact "that Trusley was in need of incarceration; that the imposition of anything other than an enhanced sentence would depreciate the seriousness of the crime; and the nature and circumstances of the crime" could not be used to impose an enhanced sentence. 829 N.E.2d at 927.

In both cases at least one of the improper aggravators was a fact or represented a judicial statement about the weight to be assigned to an underlying fact. It was possible that the facts necessary to support the aggravators could have been properly established consistent with the Sixth Amendment. The State might well have attempted to do so had it been clear at the time of sentencing that Blakely required proving such facts to a jury. But of course when Smylie and Trusley were sentenced, the Supreme Court had not handed down Blakely, and we had not yet addressed the issue. In other words, there was no indication the State needed to follow a procedure for proving the aggravators beyond a reasonable doubt.

We held in Smylie that a defendant should not be denied the opportunity to challenge her sentence under Blakely because of a failure to make a specific objection at trial. Smylie, 823 N.E.2d at 687-91. We based our decision in that matter on the conclusion that "[b]ecause Blakely represents a new rule that was sufficiently novel that it would not have been generally predicted, much less envisioned to invalidate part of...