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remanding for a new sentencing hearing, but summarily affirming in all other respects
Summary of this case from Sharp v. StateOpinion
No. 79S05-0507-CR-325.
July 19, 2005.
PUBLISHED ORDER GRANTING TRANSFER AND REMANDING TO TRIAL COURT
Following a jury trial, Lloyd Lichti ("Lichti") was found guilty of Felony Murder, Kidnapping as a Class A felony, Criminal Confinement as a Class B felony, Robbery as a Class C felony, and Theft as a Class D felony. The trial court sentenced Lichti to enhanced terms of sixty-five years on the Felony Murder conviction and eight years on the Robbery conviction, to run consecutively. The trial court did not enter judgment or sentence on the remaining verdicts due to double jeopardy concerns.
The presumptive sentence for Felony Murder is fifty-five years, with a maximum of ten years added for aggravating circumstances. Ind. Code § 35-50-2-3. The presumptive sentence for a Class C felony is 4 years, with a maximum of 4 years added for aggravating circumstances. Ind. Code § 35-50-2-6.
The trial court found the following aggravating factors justified enhancement of Lichti's sentences: (1) the risk Lichti would commit another crime; (2) the nature and circumstances of the crime; (3) the victim being over 65 years of age; and (4) the victim's family's desire that Lichti receive an enhanced sentence. Lichti appealed both his convictions and his sentence. The Court of Appeals affirmed. Lichti v. State, 827 N.E.2d 82 (Ind.Ct.App. 2005).
This matter is presently before this Court on a petition to transfer jurisdiction filed by the Appellant pursuant to Appellate Rule 57. Upon review we find Lichti's enhanced sentences cannot be sustained in light of our recent decisions interpreting and applying Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See, e.g., Smylie v. State, 823 N.E.2d 679 (Ind. 2005); Patrick v. State, 827 N.E.2d 30 (Ind. 2005) (per curiam); Wright v. State, 829 N.E.2d 928 (Ind., 2005); Mask v. State, 829 N.E.2d 932 (Ind., 2005). Accordingly, we GRANT the Appellant's transfer petition and REMAND this case to the trial court for a new sentencing hearing at which the State may elect to prove adequate aggravating circumstances before a jury or stipulate to Lichti being sentenced to consecutive statutory fixed terms on the Felony Murder and Class C Robbery convictions. See Smylie, 823 N.E.2d at 691.
Except for Part V(A) and any reference to the trial court's weighing of aggravating and mitigating circumstances, we SUMMARILY AFFIRM the Court of Appeals' opinion. Ind. Appellate Rule 58(A). Except for the resentencing required by this Order, the trial court is AFFIRMED.
The Clerk is directed to send a copy of this order to Chief Judge James Kirsch of the Indiana Court of Appeals; to Judges John Baker and Michael Barnes, Indiana Court of Appeals; to Steve Lancaster, Indiana Court of Appeals Administrator; to Judge Thomas H. Busch, Tippecanoe Superior Court; the Clerk of the Tippecanoe Superior Court; to all counsel of record; and to West Publishing Company for publication in its advance sheets and the bound volumes of this Court's official reporter.
All justices concur.