Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                     Oct 08 2013, 5:23 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                                GREGORY F. ZOELLER
Marion County Public Defender Agency              Attorney General of Indiana
Indianapolis, Indiana
                                                  MICHAEL GENE WORDEN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

LARRY WARREN,                                     )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )       No. 49A04-1301-CR-25
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable Anne M. Flannelly, Judge Pro Tempore
                             Cause No. 49G22-1001-FA-1153



                                        October 8, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       Larry Warren appeals his sentence following his convictions for three counts of

child molesting, as Class A felonies, and two counts of child solicitation, as Class D

felonies, following a jury trial. He presents a single issue for our review, namely,

whether the trial court erred when it enhanced his sentence based on aggravators that

were neither found by a jury nor admitted in accordance with the holding in Blakely v.

Washington, 542 U.S. 296 (2004).

       We remand for resentencing.

                      FACTS AND PROCEDURAL HISTORY

       In approximately 1998, Warren met and became business partners with D.R., the

mother of two minor daughters, J.R. and H.R. J.R. was nine years old when she met

Warren, who was then approximately thirty-three years old. Soon Warren and D.R.

began dating, and Warren began spending more time at D.R.’s house. Warren became a

companion to J.R., driving her to skating lessons, taking her to movies, and taking her out

to eat. At some point while J.R. was still nine years old, Warren began engaging in

frequent sexual activity with her. For the first few years, the sexual activity included

activities like oral sex but excluded intercourse. Then, when J.R. was thirteen years old,

she and Warren began engaging in intercourse. Warren would often videotape sexual

encounters with J.R., and he took inappropriate photographs of her. When J.R. was

approximately fourteen and a half years old, Warren moved out of state for work.

       When J.R. was eighteen or nineteen years old, she began a relationship with

Warren, and he paid her rent on an apartment for one year. When Warren informed J.R.


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that he would not be renewing her lease, J.R. contacted police to report the incidents of

child molesting Warren had committed during her childhood. J.R. had recovered a

videotape recording depicting Warren and then-fourteen-year-old J.R. engaging in sexual

activity, and she turned that videotape over to the police.        J.R. also gave police

inappropriate photographs Warren had taken of her when she was a minor.

       The State charged Warren with five counts of child molesting, as Class A felonies,

and five counts of sexual misconduct with a minor, as Class B felonies. The trial court

subsequently dismissed the sexual misconduct counts because the statute of limitations

had run, and the State moved to amend the information to add two counts of child

solicitation, as Class D felonies. The trial court granted the State’s motion to amend. A

jury found Warren guilty of three counts of child molesting, as Class A felonies, and the

two child solicitation counts, but acquitted Warren on two of the child molesting counts.

       The trial court imposed sentence as follows: forty years for each child molesting

conviction, and three years for each child solicitation conviction. The trial court ordered

that the sentences would run concurrently, except that one of the sentences for child

molesting would run consecutive to the others, for an aggregate term of eighty years.

This appeal ensued.

                            DISCUSSION AND DECISION

       Warren’s sole contention on appeal is that the trial court sentenced him in

violation of his rights under Blakely. 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, Warren committed the


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instant offenses 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 (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

(emphasis original). 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).

       Warren concedes that he did not make a Blakely objection at sentencing, but he

maintains that the violation of his Sixth Amendment right to a jury trial constitutes


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fundamental error. But our supreme court has held that a defendant can raise a Blakely

claim for the first time on appeal. See Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind.

2005). Thus, Warren need only prove error, not fundamental error.

       Here, the trial court identified three aggravators, namely:     Warren was in a

position of trust with J.R.; at least one incident occurred when J.R.’s minor sister was

present; and Warren violated a no contact order. With respect to the position of trust

aggravator, our supreme court has stated:

       a defendant’s “Sixth Amendment rights are not implicated when the
       language of an aggravator is meant to describe the factual circumstances,
       not to serve as a fact itself.” Morgan v. State, 829 N.E.2d 12, 17 (Ind.
       2005). In Morgan, the trial judge took note of the defendant’s multiple
       prior convictions and observed that previous convictions had failed to
       rehabilitate the offender. We categorized such statements as “observations
       [that] merely describe the moral or penal weight of [underlying facts].” Id.
       Because such observations do not involve impermissible judicial fact-
       finding, but rather reflect “the efforts of a judge to describe in a concise
       manner what the underlying facts mean, and why they demonstrate that a
       particular defendant deserves an enhanced sentence,” we concluded that
       their use did not violate the Sixth Amendment. Id. at 17-18. Nevertheless,
       we also held that to satisfy the requirements of Blakely such statements
       must be “1) supported by facts otherwise admitted or found by a jury and 2)
       meant as a concise description of what the underlying facts demonstrate
       and therefore [rely] upon a legal determination otherwise reserved as a
       power of the judge.” Id.

Here, Warren testified at trial that he had dated D.R., was “close to the family,” and

“helped them out.” Transcript at 206. Warren also testified that he had spent time with

J.R., including buying her things at the mall and taking her to ice skating practices and

dinners. We hold that Warren’s testimony is sufficient to establish that he was in a

position of trust with J.R.




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       But there is insufficient evidence to support the remaining two aggravators. The

presentence investigation report indicates that Warren’s alleged violation of a no contact

order was only pending at the time of sentencing. And our review of the record does not

reveal that Warren admitted either that he violated a no contact order or that J.R.’s minor

sister was present during any of the incidents supporting his convictions. Thus, those two

aggravators violate Blakely and cannot stand.

       While Blakely violations are subject to a harmless error analysis, examining the

one properly found aggravator found by the trial court leaves us unable to say with

confidence that the enhanced sentence should be affirmed on appeal. See Trusley, 829

N.E.2d at 927. Accordingly, we remand to the trial court with instructions to afford the

State an election to prove to a jury those aggravating circumstances initially presented to,

and found by, the trial court. See Neff v. State, 849 N.E.2d 556, 561 (Ind. 2006). Should

the State forgo this election, the trial court should reconsider the appropriate sentence

based on the violation of a position of trust aggravator. See id.

       Remanded for resentencing.

MATHIAS, J., and BROWN, J., concur.




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