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Tuesday, September 28, 2004

Indiana Decisions - Four posted today by Court of Appeals

Damorrow Bledsoe v. State of Indiana (9/28/04 IndCtApp) [Criminal Law & Procedure - OPINION ON REHEARING]
Baker, Judge

Damorrow Bledsoe petitions for rehearing with regard to our unpublished memorandum decision in Bledsoe v. State, No. 49A05-0311-CR-586 ( Ind. Ct. App. June 29, 2004). In our original opinion, we determined that Bledsoe failed to show that the trial judge had been biased or prejudiced against him. Thus, we rejected Bledsoe’s argument that he was denied the right to a fair trial on this basis. We now grant rehearing for the limited purpose of addressing Bledsoe’s arguments regarding sentencing errors that were purportedly triggered by the recent decision of Blakely v. Washington, 124 S. Ct. 2531 (2004). * * *

In this instance, Bledsoe acknowledges that the trial court sentenced him to twelve years—two years beyond the presumptive—for committing the offense of burglary as a class B felony. [See footnote] In so doing, the trial court relied upon Bledsoe’s prior criminal history, noted that his rehabilitation could only occur in a penal institution, that he was on probation at the time of the offense, and that the trial court believed that Bledsoe would continue to engage in criminal activities. As we have established in [(Jason) Carson v. State (Ind. Ct. App. August 20, 2004)], prior convictions shown by a defendant’s criminal history are exempt from the Apprendi rule as clarified by Blakely. Also, just as we observed with respect to the circumstances in Carson, the remaining aggravating circumstances in Bledsoe’s case merely derive from his criminal history. Thus, the Blakely analysis is not implicated. Finally, there is no indication that Bledsoe objected to the contents of the pre-sentence investigation report.

In any event, it has been determined that a single aggravating circumstance will justify a sentence enhancement. Powell v. State, 769 N.E.2d 1128, 1135 (Ind. 2002). That said, even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons that were articulated in Blakely, such a determination would have no effect on Bledsoe’s sentence. Accordingly, we grant Bledsoe’s petition for rehearing, but deny his requested relief. Thus, our original opinion stands in all respects.
FRIEDLANDER, J., and BAILEY, J., concur.
_____
Footnote: The trial court added fifteen years to this count after it was determined that Bledsoe was a habitual offender. Thus, an aggregate sentence of twenty-seven years was imposed.


Daryl Burnett v. State of Indiana (9/28/04 IndCtApp) [Criminal Law & Procedure]
Najam, Judge

Daryl Burnett, Jr., appeals his convictions, following a jury trial, for Kidnapping, a Class A felony, and Robbery, as a Class B felony. Burnett presents two issues for review: [1.] Whether the trial court abused its discretion under Indiana Evidence Rule 702 when it allowed the State’s fingerprint expert to testify as an expert at trial. [2.] Whether the State presented sufficient evidence to sustain Burnett’s convictions. We affirm. * * *
SULLIVAN, J., and BARNES, J., concur.
In the Matter of the Adoption of M.A.S. (9/28/04 IndCtApp) [Family Law]
Sharpnack, Judge
Dale Wayne Evans (“Father”) appeals the trial court’s grant of a petition to adopt M.A.S. filed by Christopher Murray (“Stepfather”). Father raises three issues, which we consolidate and restate as whether the trial court erred by granting Stepfather’s petition to adopt M.A.S. We affirm. * * *

For the foregoing reasons, we affirm the trial court’s grant of Stepfather’s petition to adopt M.A.S. Affirmed.
BAILEY, J. and MAY, J. concur

M.B. v. State of Indiana (9/28/04 IndCtApp) [Juvenile Law]
Friedlander, Judge
Fifteen-year-old M.B. appeals a true finding that he committed an act that would constitute the offense of Battery, a class A misdemeanor, if committed by an adult. M.B. presents the following restated issues for review: [1.] Did the juvenile court lack jurisdiction by virtue of its failure to enter a separate order, pursuant to [IC] 31-37-10-2, finding probable cause to believe M.B. had committed a delinquent act and that it was in the best interests of the child or society to file the petition? [2.] Did the juvenile court err in placing M.B. with the Department of Correction? We affirm. * * *
BAKER, J., and DARDEN, J., concur.

Posted by Marcia Oddi on September 28, 2004 01:49 PM
Posted to Indiana Decisions