MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Apr 29 2020, 11:04 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald Thomas,                                            April 29, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2159
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G04-1801-FA-1615



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020                  Page 1 of 8
                                               Case Summary

[1]   Donald Thomas appeals his sentence after his conviction for rape, a Class A

      felony, and criminal deviate conduct, a Class A felony. We affirm.


                                                      Issue

[2]   Thomas raises one issue for our review, which we restate as whether Thomas’

      sentence violates his Sixth Amendment rights.


                                                      Facts

[3]   On September 2, 1998, A.A. lived on the second floor of an apartment complex

      in Marion County. Earlier in the day, while retrieving a belonging from her

      vehicle, A.A. noticed a man she did not know, later identified as Thomas,

      walking in the street of the apartment complex. A.A. returned to her apartment

      and, shortly thereafter, Thomas knocked on her apartment door.


[4]   Thomas asked if he could use A.A.’s telephone to call work. A.A. allowed

      Thomas to use the telephone outside of her apartment. After Thomas was done

      using the telephone, he told A.A. that he needed to call his work again in fifteen

      minutes. Fifteen minutes later, Thomas returned, and A.A. allowed him to use

      the telephone again. While Thomas was using the telephone, A.A. began

      cleaning dishes inside her apartment. Suddenly, Thomas was standing next to

      A.A., pointing a gun at A.A.’s head.


[5]   Thomas then raped A.A. and forced A.A. to perform oral sex on him while he

      pointed a gun at A.A.’s back. Thomas placed a pillow over A.A.’s face and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020   Page 2 of 8
      began to suffocate her. A.A. fought back, and Thomas stopped. While still in

      A.A.’s apartment, Thomas used a bathroom towel. Thomas left a few

      moments later and told A.A. to wait fifteen minutes before calling police.


[6]   When Thomas left, A.A. realized her phone had no dial tone. A.A. jumped off

      her second story balcony and found a woman in the street of the apartment

      complex who called law enforcement.


[7]   Officers from the Marion County Sheriff’s Office, now the Indianapolis

      Metropolitan Police Department (“IMPD”), 1 were dispatched to A.A.’s home.

      The officers collected items from A.A.’s apartment, including the towel

      Thomas used in the bathroom. A rape kit was performed on A.A. at the

      hospital. No suspects were identified at that time, and the case was dormant

      until 2016.


[8]   In October 2016, Detective Michelle Floyd, with IMPD, was assigned to

      investigate a “cold case”—the assault at A.A.’s apartment. Detective Floyd

      contacted A.A. and requested A.A. to identify the perpetrator of the 1998

      assault by way of a photo array containing Thomas’ photograph. Detective

      Floyd also obtained Thomas’ DNA from the bathroom towel that was collected

      and retained by IMPD, as evidence in the case. DNA testing was conducted on

      a sample taken from the towel and a sample taken from Thomas pursuant to a

      November 15, 2016 court order. The result of the DNA test revealed seminal




      1
          According to Detective Michelle Floyd, the police departments merged in 2007.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020      Page 3 of 8
       material on the towel, which matched the DNA profile of Thomas, “estimated

       to occur once in more than 330 billion unrelated individuals.” Tr. Vol. III p.

       14.


[9]    On January 16, 2018, the State charged Thomas with Count I, rape, a Class A

       felony; and Count II, criminal deviate conduct, a Class A felony. A jury trial

       was held in July 2019, and witnesses testified to the foregoing facts. The jury

       found Thomas guilty of both counts.


[10]   On August 23, 2019, the trial court held Thomas’ sentencing hearing. The trial

       court found as aggravating factors: (1) the harm, injury, loss, or damage

       suffered by the victim was greater than necessary; (2) Thomas’ criminal

       history; 2 and (3) Thomas’ probation violations. The trial court found as

       mitigating factors: (1) Thomas’ criminal history appears to end in 2009; and (2)

       Thomas was his elderly mother’s caretaker. 3


[11]   In its oral sentencing statement, the trial court identified the “most serious

       aggravator” as the nature of the offense and the impact that the offense had on




       2
         Thomas’ criminal history includes convictions for: battery resulting in bodily injury, a Class A
       misdemeanor, and a subsequent probation revocation in 1991; criminal confinement, a Class D felony, and a
       subsequent probation revocation in 1992; residential entry, a Class D felony in 1996; public intoxication, a
       Class B misdemeanor in 1997; operating a vehicle with an alcohol concentration equivalent to at least .08, a
       Class C misdemeanor in 2003 and subsequent probation revocation; operating a vehicle while intoxicated
       endangering a person, a Class D felony, possession of a controlled substance, a Class D felony, and a
       subsequent probation revocation in 2004; and possession of cocaine, a Class D felony in 2006. Thomas’ pre-
       sentence investigation report also lists a charge for “possession” in Baltimore County, Maryland, in 1994.
       No other information regarding this charge was provided.
       3
        The trial court entered a written supplemental sentencing statement on August 23, 2019, where these factors
       were identified.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020                   Page 4 of 8
       A.A. Id. at 67. At the end of the trial court’s oral sentencing statement, the

       trial court asked if “there [was] any legal defect in [the trial court’s] sentence or

       anything that [the trial court has] forgotten?” Id. at 71. Thomas’ counsel

       responded: “Not on behalf of the Defendant, Your Honor.” Id.


[12]   The trial court sentenced Thomas to thirty-five years on each count to run

       consecutively for an aggregate sentence of seventy years. Thomas now appeals

       his sentence.


                                                     Analysis

[13]   Thomas argues the trial court violated his Sixth Amendment rights by failing to

       apply the sentencing scheme in effect at the time of the offense in 1998. Our

       Supreme Court held that we must apply the sentencing scheme in effect at the

       time of the defendant’s offense. See Robertson v. State, 871 N.E.2d 280, 286 (Ind.

       2007) (“Although Robertson was sentenced after the amendments to Indiana’s

       sentencing scheme, his offense occurred before the amendments were effective

       so the pre-Blakely sentencing scheme applies to Robertson’s sentence.”).


[14]   At the time of this offense, in 1998, the presumptive sentencing scheme was in

       effect instead of the current advisory sentencing scheme. Indiana’s presumptive

       sentencing system, however, was found to “run[] afoul of the Sixth

       Amendment” pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531

       (2004), “because it mandates both a fixed term and permits judicial discretion in

       finding aggravating or mitigating circumstances to deviate from the fixed term.”

       Smylie v. State, 823 N.E.2d 679, 685 (Ind. 2005). Under Blakely, therefore:

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020   Page 5 of 8
                a trial court may not enhance a sentence based on additional
                facts, unless those facts are either (1) a prior conviction; (2) facts
                found by a jury beyond a reasonable doubt; (3) facts admitted by the
                defendant; or (4) facts found by the sentencing judge after the
                defendant has waived Apprendi [v. New Jersey, 530 U.S. 466, 490
                (2000)] rights and consented to judicial fact[-]finding.


       Robertson, 871 N.E.2d at 286 (emphasis added).


[15]   In 2005, our Supreme Court held:


                First, as a new rule of constitutional procedure, we will apply
                Blakely retroactively to all cases on direct review at the time
                Blakely was announced. Second, a defendant need not have
                objected at trial in order to raise a Blakely claim on appeal
                inasmuch as not raising a Blakely claim before its issuance would
                fall within the range of effective lawyering. Third, those
                defendants who did not appeal their sentence at all will have
                forfeited any Blakely claim.


       Smylie, 823 N.E.2d at 690-91. 4


[16]   Subsequently, Indiana amended its sentencing scheme to the advisory

       sentencing scheme “apparently. . . to resolve the Sixth Amendment problem

       Blakely presented.” Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007). The

       new sentencing scheme still required trial courts to enter sentencing statements




       4
         In Kincaid v. State, 837 N.E.2d 1008 (Ind. 2005), our Supreme Court again allowed a defendant to
       raise a Blakely claim for the first time on appeal when the sentencing hearing occurred two weeks after
       Blakely was issued. See Kincaid, 837 N.E.2d at 1010. Thus, our Supreme Court ordered our Court to
       review Kincaid’s Blakely claim on the merits.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020                     Page 6 of 8
       which identified the aggravating and mitigating factors that led to imposition of

       a particular sentence. See id. at 490.


[17]   Turning to the present case, at the time of Thomas’ crime, in 1998, the prior

       sentencing scheme was in effect and, therefore, applied to Thomas. Under the

       prior sentencing scheme, the sentence for a Class A felony was a fixed term of

       thirty years, with not more than twenty years added for aggravating

       circumstances or not more than ten years subtracted for mitigating

       circumstances. Ind. Code § 35-50-2-4 (1995). The trial court sentenced

       Thomas to thirty-five years for each Class A felony, to run consecutively for an

       aggregate sentence of seventy years.


[18]   Thomas argues that he was entitled to have a jury determine whether the

       additional facts surrounding the nature of the offense and impact on the victim

       should have constituted an aggravating factor pursuant to Blakely’s application

       to the prior sentencing scheme. The State responds that Thomas waived this

       argument because Thomas did not object at the time of sentencing, even when

       invited by the trial court to do so. We agree with the State that Thomas has

       waived this argument. Although cases such as Smylie and Kincaid have allowed

       defendants to raise the Blakely issue for the first time on direct appeal, Thomas,

       unlike the defendants in those cases, was sentenced many years after Blakely

       was handed down, and these exceptions do not apply.


[19]   Thomas’ sentencing hearing occurred approximately fifteen years after Blakely.

       If Thomas wanted the jury to determine these aggravating factors, he should


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020   Page 7 of 8
       have objected at sentencing. At the very least, Thomas should have objected

       when the trial court invited the objection. To allow Thomas to do otherwise

       would allow Thomas to sit by, wait to see what sentence he receives from the

       trial court, and then claim error on appeal if he is not in favor of the sentence he

       received. See Robles v. State, 705 N.E.2d 183, 187 (Ind. Ct. App. 1998) (“[A]

       party may not sit idly by, permit the court to act in a claimed erroneous

       manner, and then attempt to take advantage of the alleged error at a later

       time.”) (citations omitted). Accordingly, Thomas’ sole argument on appeal is

       waived. 5 See Muncy v. State, 834 N.E.2d 215, (Ind. Ct. App. 2005) (“Muncy did

       not object on Sixth Amendment grounds during his sentencing hearing and

       thereby ‘forfeited [his] ability to appeal [his] sentence on Blakely grounds.’”)

       (quoting Smylie, 823 N.E.2d at 689).


                                                    Conclusion

[20]   Thomas waived his argument by failing to object at his sentencing hearing,

       especially when the trial court specifically invited the objection. Accordingly,

       we affirm.


[21]   Affirmed.


       Riley, J., and Mathias, J., concur.




       5
        We, therefore, need not address Thomas’ argument that the trial court sentenced him improperly to
       consecutive sentences because his argument rests on a finding that one of the aggravators was improper
       under Blakely.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2159 | April 29, 2020                   Page 8 of 8
