ATTORNEY FOR APPELLANT                                               ATTORNEYS FOR APPELLEE
Eugene C. Hollander                                                  Steve Carter
Special Assistant to the Office                                      Attorney General of Indiana
of the State Public Defender
Indianapolis, Indiana                                                George P. Sherman
                                                                     Deputy Attorney General
                                                                     Indianapolis, Indiana
______________________________________________________________________________

                                                In the
                                  Indiana Supreme Court
                                  _________________________________

                                         No. 03S04-0512-CR-681

UNDRAY L. KNIGHTEN,

                                                                     Appellant (Defendant below),

                                                   v.

STATE OF INDIANA,

                                                                  Appellee (Plaintiff below).
                                  _________________________________

               Appeal from the Bartholomew Superior Court, No. 03D01-0402-FB-281
                              The Honorable Chris D. Monroe, Judge
                             _________________________________

       On Petition to Transfer from the Indiana Court of Appeals, No. 03A04-0407-CR-410
                             _________________________________

                                           December 22, 2005

Sullivan, Justice.


         While serving time as an inmate in the Bartholomew County Jail, Undray L. Knighten
attacked an officer, causing injury to the officer’s ankle such that he had to use crutches for sev-
eral weeks. A jury convicted Knighten of aggravated battery, a Class B felony, and resisting law
enforcement, a Class D felony, and found him guilty of being a habitual offender. He was sen-
tenced to 50 years in prison. Knighten appealed.
       On appeal, Knighten argued that the evidence supporting his convictions was insufficient,
that his conviction for resisting law enforcement constituted double jeopardy, that the evidence
did not support the habitual offender enhancement, and that his sentence was manifestly unrea-
sonable. In his appellate brief, filed on December 27, 2004, Knighten challenged his sentence on
the specific ground that the trial court relied upon improper factors in enhancing his sentence.
Br. of Appellant at 28. Although he did not explicitly argue that his sentence violated the United
States Supreme Court decision in Blakely v. Washington, 542 U.S. 296 (2004), he cited Blakely
in his brief. Id. at 29. The Court of Appeals rejected Knighten’s insufficient evidence and habit-
ual offender claims, but remanded with instructions to vacate the resisting law enforcement con-
viction. Knighten v. State, No. 03A04-0407-CR-410 (Ind. Ct. App. June 8, 2005) (mem.). The
Court of Appeals, however, found that Knighten had waived his sentencing argument because
his “many citations [were] unpersuasive in the absence of cogent reasoning.” Id., slip op. at 11.


       Knighten petitioned for rehearing, arguing, among other things, that he did not intention-
ally waive his sentencing argument and that in light of our decision in Smylie v. State, 823
N.E.2d 679, 689 (Ind. 2005), he had preserved his Blakely claim by contesting his sentence on
appeal. The Court of Appeals granted rehearing for the limited purpose of clarifying a suffi-
ciency of the evidence issue and affirmed its original opinion.


       In Kincaid v. State, No. 20S04-0511-CR-611, 2005 Ind. LEXIS 1080 (Ind. Nov. 29,
2005), we explained that although a claim is not normally available for review on appeal unless
first made at trial, an appellate court may review claims of sentencing error without insisting that
the claim first be presented at trial. Id. at *3. We held that when the appellant’s initial brief on
direct appeal was filed prior to March 9, 2005, the date on which we decided Smylie, “an appel-
lant who had contested his or her sentence in some respect in the appellant’s initial brief on di-
rect appeal is entitled to review on the merits of a subsequently-raised Blakely claim.” Id. at *3-
4.


       As mentioned above, Knighten filed his initial appellate brief challenging his sentence
prior to the date on which we decided Smylie. He subsequently raised a specific Blakely claim



                                                 2
in his petition for rehearing, filed on July 8, 2005. Pet. for Reh’g at 9. Therefore, Knighten is
entitled to review on the merits of his Blakely claim.


       We grant transfer, summarily affirm the decision of the Court of Appeals as to all issues
except sentencing, and remand this case to the Court of Appeals for consideration of and ruling
on Knighten’s Blakely claim.


Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.




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