Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                     FILED
any court except for the purpose of                     Mar 14 2012, 9:10 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                         CLERK
                                                             of the supreme court,

case.                                                        court of appeals and
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ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

KELLY N. BRYAN                                 GREGORY F. ZOELLER
Muncie, Indiana                                Attorney General of Indiana
                                               Indianapolis, Indiana

                                               GARY R. ROM
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

SCOTT C. HAISLEY,                              )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )      No. 18A02-1106-CR-568
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                           The Honorable John M. Feick, Judge
                             Cause No. 18C04-0910-FA-16

                                     MARCH 14, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                              STATEMENT OF THE CASE

       Scott Haisley appeals the sentence he received after pleading guilty to child

molesting, a Class A felony. Ind. Code § 35-42-4-3 (1994).

       We affirm.

                                          ISSUE

       Haisley presents one issue, which we restate as: whether the trial court sentenced

him in violation of his rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531,

159 L. Ed. 2d 403 (2004).

                        FACTS AND PROCEDURAL HISTORY

       Haisley was charged with three counts of child molesting in October 2009. In

December 2010, he pleaded guilty to one count of child molesting as a Class A felony.

Pursuant to the plea agreement, Haisley’s sentence was left to the discretion of the trial

court. The court sentenced Haisley to forty-five years executed with credit for time

served in jail and on home detention. It is from this sentence that Haisley now appeals.

                             DISCUSSION AND DECISION

       Haisley’s sole contention is that the trial court sentenced him in violation of his

rights under Blakely. Specifically, Haisley argues that he did not waive his rights under

Blakely and consent to judicial fact-finding for the determination of aggravating factors to

support his enhanced sentence. We note that Blakely is not applicable under Indiana’s

current advisory sentencing scheme. Anglemyer v. State, 868 N.E.2d 482, 489 (Ind.

2007), clarified on reh’g, 875 N.E.2d 218 (2007). However, Haisley committed the

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instant offense prior to the amendments to Indiana’s sentencing scheme in April 2005;

therefore, he is entitled to be sentenced under the former presumptive sentencing scheme

to which Blakely does apply. See Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007).

       In Apprendi v. New Jersey the Supreme Court declared that “[o]ther than the fact

of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Four years later Blakely

clarified that the statutory maximum referred to in Apprendi is “the maximum sentence a

judge may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant.” 542 U.S. at 303. Subsequently, our Supreme Court held that Blakely

was applicable to Indiana’s sentencing scheme because our presumptive term constituted

the statutory maximum as that term was defined in Blakely. See Smylie v. State, 823

N.E.2d 679, 683 (Ind. 2005).

       Under Blakely, a trial court may enhance a sentence based only on those 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 has waived Apprendi rights and stipulated to certain facts

or consented to judicial fact-finding. Trusley v. State, 829 N.E.2d 923, 925 (Ind. 2005).

Blakely rights are subject to knowing, intelligent, and voluntary waiver. Higginbotham v.

State, 826 N.E.2d 5, 6 (Ind. Ct. App. 2005). In his brief, Haisley asserts that this case

involves only the fourth factor. He claims that the language in his plea agreement was

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ineffective to constitute a waiver of his Blakely rights and that he did not knowingly,

intelligently, and voluntarily waive his rights.

       Paragraph 3 of Haisley’s plea agreement provides as follows:

       The Defendant understands that the State and Federal Constitutions
       guarantee all criminal Defendants certain rights, among them being the
       right to trial by jury (including the possibility, under Blakely v.
       Washington, that the Defendant might have the right to have a jury
       determine beyond a reasonable doubt the existence of aggravating factors to
       support an aggravated sentence), to a speedy, public trial, to be free from
       self-incrimination, to confront and cross-examine the State’s witnesses, to
       have compulsory process for obtaining witnesses for the defense, to require
       the State to prove guilt beyond a reasonable doubt, and the right to appeal a
       finding of guilt if the Defendant had gone to trial. The Defendant further
       understands that [t]he entry of a guilty plea pursuant to this agreement
       waives those rights, constitutes an admission of the truth of all the facts
       alleged in the information count to which a plea of guilty has been entered,
       and requests that the judge determine the existence of any aggravating
       factors after consideration of the Pre-Sentence Investigation report and the
       arguments and evidence to be presented at sentencing.

Appellant’s App. p. 63.        The plea agreement specifically refers to Blakely and

“aggravating factors” that would support an “aggravated sentence.” Id. Moreover, the

final sentence clearly sets forth that Haisley waives the rights discussed in paragraph 3

and specifically requests that the judge determine the existence of any aggravating

factors. Further, the second page of the agreement required Haisley to sign below the

statement:   “The Defendant has read, understood and approved all the foregoing

provision[s].” Id. at 64. In addition, at the plea hearing, Haisley acknowledged to the

trial court that it was his signature on the plea agreement and that no one had forced him

to sign the plea agreement. Haisley has not persuaded us that his waiver was not made


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knowingly, intelligently, and voluntarily. See, e.g., Miller v. State, 884 N.E.2d 922, 926-

28 (Ind. Ct. App. 2008) (concluding that defendant waived his Blakely rights based upon

terms of plea agreement that he had “voluntarily waived the right to have a jury

determine the aggravating or mitigating circumstances that can enhance or reduce your

sentence above or below the presumptive sentence” and his acknowledgments at plea

hearing), modified on other grounds on reh’g, 891 N.E.2d 58 (2008), trans. denied; see

also Williams v. State, 836 N.E.2d 441, 443-45 (Ind. Ct. App. 2005) (finding a valid

waiver of defendant’s Blakely rights based upon provisions of plea agreement).

                                     CONCLUSION

      Based upon the foregoing discussion and authorities, we conclude that Haisley

knowingly, intelligently, and voluntarily waived his Blakely rights and consented to

judicial fact-finding based upon the language contained in his plea agreement.

      Affirmed.

RILEY, J., and KIRSCH, J., concur.




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