MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Jul 31 2017, 6:00 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
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estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Eric K. Koselke                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alex E. Witmer,                                          July 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A04-1610-CR-2231
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Joseph V. Sutton,
Appellee-Plaintiff                                       Special Judge
                                                         Trial Court Cause No.
                                                         20D01-0111-CF-241




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017        Page 1 of 14
[1]   Alex E. Witmer pled guilty in 2002 to charges of Class B felony armed robbery 1

      and murder, 2 and the trial court sentenced him to an aggregate sentence of

      eighty-five years executed. After his sentence was affirmed on direct appeal,

      Witmer filed a petition for post-conviction relief, which the post-conviction

      court denied. Witmer appeals that denial asserting his sentencing court relied

      on aggravating factors not charged or subject to proof to a jury beyond a

      reasonable doubt in violation of Blakely v. Washington, 542 U.S. 296 (2004), reh’g

      denied.


[2]   Freestanding claims of sentencing error are, and remain, unavailable in post-

      conviction proceedings. Reed v. State, 856 N.E.2d 1189, 1193-94 (Ind. 2006)

      (“The law in this jurisdiction is settled that sentencing issues which are known

      or available at the time of direct appeal but are not raised are waived for post-

      conviction review.”). Nevertheless, an extremely improbable set of procedural

      circumstances, which we doubt will ever again occur, leads us to consider the

      merits of Witmer’s sentencing claim. See infra at 11, n.4. After determining the

      three aggravators found by the trial court without a jury and used to enhance

      Witmer’s sentence did not violate Witmer’s right to a jury as explained in

      Blakely, we affirm.




      1
          Ind. Code § 35-42-5-1 (1986).
      2
          Ind. Code § 35-42-1-1 (1998 & Supp. 1999).


      Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017   Page 2 of 14
                                 Facts and Procedural History
[3]   Our Indiana Supreme Court set out the facts of this case when it reviewed

      Witmer’s sentence on direct appeal:


[4]              Alex Witmer committed robbery and murder in one two-year
                 period. On March 25, 1998, sixteen-year-old Witmer pointed a
                 gun at Preston Hall in Elkhart County during a “drug deal gone
                 bad.” Initially, Hall thought that Witmer was playing around,
                 but Witmer pointed the rifle at Hall’s throat and stated, “Give me
                 your damn wallet.” (App. at 53.) Hall complied, and Witmer
                 took the wallet, which contained money. The State thereafter
                 charged Witmer with robbery on September 30, 1998, though it
                 did not serve the warrant until November 1999.


[5]              Almost one and a half years after the robbery, Witmer, who had
                 turned eighteen[,] picked up Jason Powell and drove to the Pierre
                 Moran Mall. Witmer had a .22 caliber rifle in his car. As they
                 rode about town, Witmer and Powell discussed shooting an
                 African-American to earn a tattoo of a spider web. Witmer told
                 Powell that one earns the tattoo by killing a black person. Powell
                 expressed an interest in “earning” the tattoo, and Witmer “called
                 him on it,” meaning “put up or shut up.” (GPR at 24.) 3


[6]              As they drove around the mall, Witmer and Powell noticed
                 seventeen-year-old Sasezley Richardson walking through the
                 Sears parking lot. (GPR at 25.) Neither of them knew
                 Richardson. Powell told Witmer to drive towards Richardson.
                 Witmer drove close to the victim as Powell picked up the rifle
                 and began to shoot. Powell fired ten to twelve shots at
                 Richardson. As they abandoned the scene, Witmer looked into



      3
          The “GPR” abbreviation is used to reference citation to the transcript of the guilty plea.


      Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017             Page 3 of 14
              the mirror and saw the victim fall to the ground. Witmer and
              Powell drove away, without rendering any aid. Richardson died
              from a gunshot wound to the head.


[7]           Witmer drove Powell home and then returned to his house. He
              later took the rifle used in the shooting to his younger brother,
              who dismantled the gun and threw it in the river behind his
              father’s house.


[8]           The State requested the death penalty against Witmer but later
              agreed to drop the request in return for a plea of guilty. (GPR at
              29.) The trial court sentenced Witmer to twenty years for
              robbery and sixty-five years for murder, to be served
              consecutively. (App. at 136.) It found several aggravating
              circumstances: Witmer’s history of criminal or delinquent
              activity, his need for rehabilitative treatment best provided by
              commitment to a penal facility, that imposition of a reduced
              sentence would depreciate the seriousness of the crime, and the
              nature and selection of the victim - including the racial
              motivation of the perpetrators. It also found three mitigators:
              Witmer’s age, his upbringing, and his psychological conditions.


[9]           On appeal, Witmer (1) challenged the “correctional need” and
              “depreciate the seriousness” aggravators, (2) claimed there were
              several mitigators that should have been found and that the court
              gave inadequate weight to some it did find, and (3) contended the
              resulting sentence was unreasonable. The Court of Appeals
              agreed that the “depreciate” finding was inappropriate, but
              otherwise rejected Witmer’s claims and affirmed the sentence.
              Witmer v. State, No. 20A03-0208-CR-281, 790 N.E.2d 182 (Ind.
              Ct. App. 2003).


      Witmer v. State, 800 N.E.2d 571, 571-72 (Ind. 2003) (footnote text from original;

      footnote number changed), reh’g denied.


      Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017   Page 4 of 14
[10]   On December 23, 2003, our Supreme Court summarily affirmed the Court of

       Appeals decision, id. at 572, but granted transfer to explicitly hold “without

       hesitation that racially motivated crimes are intolerable and may constitute an

       aggravating circumstance.” Id. at 573. On January 22, 2004, Witmer filed a

       petition for rehearing. On September 10, 2004, Witmer requested permission to

       file an amended rehearing petition to argue his sentence was unconstitutional

       under Blakely, 542 U.S. 296, a case decided by the United States Supreme Court

       in June 2004. The Indiana Supreme Court denied Witmer’s petition for

       rehearing on September 30, 2004.


[11]   On October 6, 2005, Witmer filed a Petition for Post-Conviction Relief arguing:


[12]           8. The grounds known to petitioner at this time for vacating his
               sentence are as follows: The sentence was imposed in violation
               of the Sixth and Fourteenth Amendments to the Constitution of
               the United States and Art. 1, § 13 of the Constitution of the State
               of Indiana because the sentence was imposed using aggravating
               factors which were not plead in the charging instruments nor
               submitted to a jury and found unanimously beyond a reasonable
               doubt by a jury. These procedures violated the Court’s holding
               in Blakely v. Washington, 542 U.S. 296 (2004), as interpreted in
               Smylie v. State, 823 N.E.2d 679 (Ind. 2005), cert. [denied].


[13]           9. The facts supporting the claim plead [sic] in paragraph 8 are:
               The trial court aggravated Petitioner’s sentences for accessory to
               murder and robbery based upon three factors: (1) a lesser
               sentence would depreciate the seriousness of the offense; (2) the
               defendant needs correctional treatment; and (3) the defendant has
               a history of criminal or delinquent activity. These factors were
               not plead by the State in any charging document and Petitioner
               had no notice of them. These factors were not presented to a jury

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017   Page 5 of 14
               and found by them unanimously and beyond a reasonable doubt.
               There was no knowing, voluntary, and intelligent waiver secured
               from Petitioner regarding these constitutionally guaranteed
               rights.


       (App. Vol. II at 31) (underlining in original).


[14]   The post-conviction court held a hearing on that petition on September 11,

       2011, and further evidence was presented on May 7, 2015. Witmer’s Petition

       for Post-Conviction Relief was denied in an order that provided the following

       pertinent findings:


[15]           4.      Regarding the murder, Petitioner testified during his guilty
               plea hearing that he obtained a firearm from his father’s house
               prior to the murder. On the evening of the murder, Petitioner
               testified that he and his friend, Powell, were conversing about
               Powell’s desire to kill a black person so that Powell could get a
               tattoo that was a symbol for killing an African American (to
               white supremacists). Petitioner then “called [Powell] on it,”
               encouraging him to commit the killing or cease talking about it.
               Petitioner drove the vehicle in which Powell was a passenger
               around the City of Elkhart during which time Petitioner noticed
               a black person around the area of the Sears store at Pierre Moran
               Mall in Elkhart. Petitioner then circled the area at the direction
               of Powell while Powell pointed the gun out the window and fired
               twelve (12) shots at the black male. Thereafter, Petitioner drove
               away without rendering any aid to the individual who had been
               shot, took Powell home, then later disposed of the gun. . . .


                                                     *****


[16]           6.   A sentencing hearing was held beginning on the 5th day of
               March, 2002, at which time Petitioner’s counsel advised there

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017   Page 6 of 14
               were no changes to the Pre-Sentence Investigation Report and
               supplemented same with evidence presented over the course of
               two (2) days of testimony. The State also presented evidence of
               aggravating circumstances. The Court articulated numerous
               aggravating factors, among which were Petitioner’s criminal
               history (from the Pre-Sentence Investigation Report), and the
               escalating nature of his criminal history (specifically citing a
               Criminal Mischief adjudication as a juvenile, a gun offense on
               school property as a juvenile, the Armed Robbery and the
               Murder). In addition, the Court articulated a specific aggravating
               factor in the context of the nature and circumstances of the
               crime, namely that the victim was selected merely due to his
               race, and the use of a deadly weapon during the murder.
               Petitioner specifically admitted the victim’s race was the
               motivating factor for the murder during his guilty plea testimony,
               and also admitted the use of the deadly weapon. The Court
               articulated that it had considered all of the mitigating evidence
               and found that the only mitigating factors present in Petitioner’s
               case were his age, upbringing and psychological condition. The
               Court then specifically found that the sentences should be run
               consecutive to each other as the aggravated sentences were
               justified, and sentenced Petitioner to a term of twenty (20) years
               for the Robbery, and sixty-five (65) years for the Murder. The
               State dismissed the Death Penalty enhancement.


[17]           7.     Petitioner filed an appeal on the 12th day of November,
               2002, alleging that the sentences were manifestly unreasonable
               and that the judge relied on inappropriate aggravating factors.
               The Indiana Court of Appeals agreed one of the factors the judge
               considered was inappropriate (depreciation of the seriousness of
               the offense if less than an aggravated sentence was imposed);
               however, found that the other aggravating factors were
               reasonable and affirmed the sentences in June of 2003. Transfer
               was sought and granted, on December 23, 2003, by the Indiana
               Supreme Court who summarily affirmed the findings of the
               Indiana Court of Appeals and went on to further articulate the

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017   Page 7 of 14
               severity of the aggravating factor that the crime was racially
               motivated. Witmer v. State, 800 N.E.2d 571 (Ind. 2003), rehearing
               denied.


[18]           8.    On the 22nd day of January 2004, Petitioner filed a Motion
               for Rehearing in the Indiana Supreme Court which was denied
               on the 30th day of September 2004.


[19]           9.     On June 24, 2004, the United State[s] Supreme Court
               issued its decision in Blakely v. Washington, 542 U.S. 296, 124 S.
               Ct. 2531, 159 L.Ed.2d 403 (2004), holding that, other than a
               prior criminal conviction and facts admitted by a defendant, any
               fact to be considered as an aggravating factor to increase the
               statutory penalty must be specifically pled and proven beyond a
               reasonable doubt to a jury. Id. at 2536.


[20]           10. On March 9, 2005, the Indiana Supreme Court held that
               portions of [ ] Indiana’s sentencing scheme do violate the Sixth
               Amendment right to trial by jury and that the new procedural
               ruled defined in Blakely should apply to all cases pending on
               direct review at the time it was decided. Smylie v. State, 823
               N.E.2d 679 (Ind. 2005)[, cert. denied.]


[21]           11. In as much as the Indiana Supreme Court had not ruled on
               Petitioner’s Petition for Rehearing at the time Blakely was
               decided, the subject case does appear to have been pending on
               direct review in June, 2004.


[22]           12. Additionally, counsel for Petitioner filed a Petition for
               Permission to File Amended Brief on or about the 10th day of
               September, 2004, which specifically argued that Blakely applied
               to the subject case. However, notwithstanding consideration of
               said argument, the Indiana Supreme Court denied rehearing and
               certified its Opinion affirming Petitioner’s sentence. Witmer v.
               State, 800 N.E.2d 571 (Ind. 2003).
       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017   Page 8 of 14
       (App. Vol. II at 105-107) (internal record citations omitted).


[23]   The court then concluded, in necessary part:


[24]           2.     Petitioner contends the Trial Court relied on aggravating
               circumstances neither admitted by him nor proven to a jury
               beyond a reasonable doubt in enhancing his sentence, in
               violation of his Sixth Amendment rights as set forth in Blakely v.
               Washington, supra and adopted by the Supreme Court of Indiana
               in Smylie v. State, supra. Pursuant to Blakely and Smylie, Trial
               Courts may only enhance a sentence above the presumptive time
               based upon facts that are established in one of several ways: (1)
               as a fact of prior conviction; (2) by a jury beyond a reasonable
               doubt; (3) when admitted by a defendant; and (4) in the course of
               a guilty plea where the defendant waived his or her Sixth
               Amendment rights and stipulated to certain facts. Trusley v. State,
               829 N.E.2d 923, 925 (Ind. 2005). In both Blakely and Smylie, the
               Courts focused on how certain facts were found, not as much
               with what the aggravators were alleged to be. Id.


[25]           3.     Contrary to Petitioner’s argument, the evidence in the
               subject case demonstrates that the Trial Court did rely upon the
               Petitioner’s criminal history and facts that the Petitioner
               personally admitted during his guilty plea hearing in determining
               the sentence. Id.


[26]           4.     The Trial Court specifically enumerated the Petitioner’s
               juvenile and criminal history as an aggravating factor, as well as
               the fact that the crime of murder was racially motivated.
               Juvenile adjudications are available to consider as aggravating
               factors just as adult convictions may be. Ryle v. State, 842 N.E.2d
               320 (Ind. 2005)[, cert. denied], and Kincaid v. State, 839 N.E.2d
               1201 (Ind. [Ct.] App. 2005). As Petitioner admitted details of the
               crime, the use of a deadly weapon in the murder, as well as the
               racial motivation for same during his own testimony after being

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017   Page 9 of 14
               advised of his rights and waived same, the Court’s finding that
               these aggravating factors existed was permissible under both
               Blakely and Smylie.


       (Id. at 108.) The post-conviction court therefore denied Witmer’s petition for

       post-conviction relief.



                                  Discussion and Decision
[27]   A post-conviction petitioner has the burden of proving by a preponderance of

       the evidence that he is entitled to relief. Humphrey v. State, 73 N.E.3d 677, 681

       (Ind. 2017). If the post-conviction court denies him relief, he appeals from a

       negative judgment and “must show that the evidence leads unerringly and

       unmistakably to a conclusion opposite that reached by the post-conviction

       court.” Id. The court entered findings of fact when denying Witmer’s petition,

       and we may not reverse the court’s findings and judgment unless Witmer

       demonstrates “clear error - that which leaves us with a definite and firm

       conviction that a mistake has been made.” See id. at 682 (quoting Ben-Yisrayl v.

       State, 729 N.E.2d 102, 106 (Ind. 2000), reh’g denied, cert. denied). However, we

       owe no deference to the post-conviction court’s conclusions of law. Id.


[28]   Pursuant to Blakely, when a trial court enhances a defendant’s sentence beyond

       the fixed term provided by our statute, the aggravating circumstances specified

       for that enhancement must be proven beyond a reasonable doubt to a jury,

       unless the aggravator was admitted by the defendant or is prior criminal

       convictions. Smylie, 823 N.E.2d at 682-83 (citing Blakely, 542 U.S. at 301 (prior

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017   Page 10 of 14
       conviction), at 303 (admitted by defendant)). Our Indiana Supreme Court

       considered the retroactive application of Blakely and determined Blakely’s

       holding applied retroactively to cases pending on direct review or not yet final

       at the time Blakely was announced, so long as those appeals had asserted some

       form of sentencing error when originally filed. Id. at 690-91.


[29]   Although Blakely applies to Witmer’s sentence, 4 we cannot hold the post-

       conviction court committed clear error when it concluded Blakely does not

       require Witmer be resentenced. Following Witmer’s direct appeal, three

       aggravators remained in support of Witmer’s maximum consecutive sentences:

       Witmer’s history of criminal or delinquent activity; Witmer’s need for

       correctional treatment; and the racial motivation for the murder. Witmer

       asserts all of those aggravators are improper.




       4
         Witmer filed a petition for rehearing in January 2004, and Blakely was decided in June 2004. In September
       2004, Witmer filed a motion asking the Indiana Supreme Court to re-consider its decision affirming his
       sentencing in light of Blakely. Shortly thereafter, his petition for rehearing was denied. Because Witmer’s
       direct appeal was still in process and he raised a sentencing argument on appeal, we affirm the post-
       conviction court’s conclusion that Blakely applies to Witmer’s sentencing. See Smylie, 823 N.E.2d at 690-91
       (holding Blakely applies to all cases on direct review at the time Blakely was decided, so long as the appeal had
       raised a sentencing issue).
       We also agree with the post-conviction court’s decision to address the merits of Witmer’s Blakely argument,
       rather than summarily deny his petition based on the State’s res judicata argument. Although the Indiana
       Supreme Court denied Witmer’s petition for rehearing after Witmer filed a petition asking the Court to allow
       him to submit an amended brief on transfer to argue his sentence was wrong under Blakely, the Indiana
       Supreme Court did not, in fact, grant Witmer’s request to file that new brief. Nor did the Indiana Supreme
       Court decide until 2005 whether, how, and when Blakely would apply to Indiana’s sentencing scheme or to
       defendants who had been sentenced thereunder. In this rare circumstance, we decline to hold the Indiana
       Supreme Court considered the implications of Blakely on the aggravators found by the trial court before
       denying Witmer’s petition for rehearing in 2004, and we address the merits of Witmer’s Blakely argument.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017               Page 11 of 14
[30]   Witmer asserts he “never admitted any juvenile convictions during his guilty

       plea hearing.” (Br. of Appellant at 9.) However, as the post-conviction court

       concluded, juvenile adjudications “may be considered as a ‘prior conviction’ for

       the purposes of sentencing under Blakely.” Mitchell v. State, 844 N.E.2d 88, 92

       (Ind. 2006). Our Indiana Supreme Court so held because “juvenile

       adjudications afford individuals sufficient procedural safeguards [to be]

       considered as a ‘prior conviction.’” Id. Thus, Witmer’s sentencing court did

       not commit any error by considering Witmer’s juvenile adjudications as an

       aggravator. See id. (“the trial court properly considered Mitchell’s juvenile

       record as part of his criminal history”).


[31]   Next, Witmer asserts “there was no evidence subject to proof beyond a

       reasonable doubt that he needed correctional treatment.” (Br. of Appellant at

       10.) We have held, however, that need for correctional or rehabilitative

       treatment best provided by commitment in a penal facility “does not implicate

       Blakely” when it derives from a defendant’s criminal history. Gillem v. State, 829

       N.E.2d 598, 606 (Ind. Ct. App. 2005), trans. denied. The trial court in Gillem

       found a need for correctional rehabilitation because “prior attempts of

       probation and court ordered counseling have been unsuccessful and the Court is

       unsure of exactly what will deter [Gillem] from this behavior except through

       penal incarceration.” Id. at 606 n.6 (quoting Tr. at 85).


[32]   At Witmer’s sentencing, the trial court said:

               One of the statutory factors is whether or not I believe the
               defendant needs correctional rehabilitative treatment in excess of
       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017   Page 12 of 14
               the presumptive sentence – ah – when I take a look at what’s
               happened particularly in respect to the homicide there had been
               prior incarcerations, probation, parole. All of those attempted to
               work with Mr. Witmer prior to the commitment or being
               involved with the homicide. Certainly those statutory factors are
               meet [sic]. I mean it’s just clear here. It’s been argued that his
               criminal behavior escalated. It certainly did escalate going from
               a criminal mischief up to a homicide.


       (Exhibit Book Vol. 4 at 136.) As the trial court’s finding of Witmer’s need for

       correctional rehabilitation was merely derivative of Witmer’s criminal history,

       this judicial finding did not violate Blakely. See Gillem, 829 N.E.2d at 606.


[33]   Finally, there remains the aggravator of the racial motivation for the murder.

       At his guilty plea hearing, Witmer admitted Powell “had previously been

       talking about wanting to kill a black person to get what he thought was a

       symbol of his killing an African American and I called him on it.” (Exhibit

       Book Vol. 3 at 24.) The prosecutor asked if Witmer had told Powell,

       essentially, to “put up or shut up[.]” (Id. at 25.) Witmer confirmed that

       meaning. Witmer also admitted that after they saw Richardson, Witmer drove

       the car around the block so that Powell could shoot at Richardson. Witmer

       admitted that the gun was his, that he did not stop Powell from shooting, that

       he did not stop to help Richardson even though he knew Richardson had been

       shot, and that he disposed of the gun after the shooting. Witmer’s admission at

       the guilty plea hearing that Robertson’s murder was racially motivated rendered

       that aggravator proper under Blakely. See Smylie, 823 N.E.2d at 683 (Blakely

       permits sentencing court to consider facts admitted by the defendant).


       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017   Page 13 of 14
[34]   Witmer has not demonstrated that any of the three aggravators that remained

       after his direct appeal were invalid under Blakely, and our Indiana Supreme

       Court already determined his sentence lengths were valid based on those same

       three aggravators. See Witmer, 800 N.E.2d at 573-74 (trial court adequately

       assessed aggravators and mitigators to arrive at sentence). Thus, Witmer has

       not demonstrated the post-conviction court’s decision was contrary to law, and

       we affirm the denial of Witmer’s petition for post-conviction relief.


[35]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1610-CR-2231 | July 31, 2017   Page 14 of 14
