State v. Lopez

¶1(concurring in part and dissenting in part).

¶2{64} I agree with the majority that there is sufficient evidence to support defendant’s convictions and I therefore concur with Section II of the majority opinion. However, because in my opinion NMSA 1978, Section 31-18-15.1 (1993), while constitutional on its face, may be applied in violation of the Sixth Amendment, I respectfully dissent from Section III of the majority opinion. The majority upholds the constitutionality of Section 31-18-15.1 by combining it with the basic sentence defined in NMSA 1978, Section 31-18-15 (2003) to create a range, reasoning that the combination is appropriate since a defendant does not have a right to be sentenced to the basic sentence. Majority Opinion ¶ 44. I respectfully disagree with the analysis and conclude that a defendant does indeed have a right to be sentenced to no more than the basic sentence unless and until there is a finding of aggravating circumstances. Yet the real question is whether a defendant has a Sixth Amendment right to have a jury, and not a judge, make the findings that will increase his or her sentence. In my opinion, the United States Supreme Court has consistently answered the question in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) to require a jury finding of any fact that increases the defendant’s sentence beyond the prescribed statutory maximum. In New Mexico, the prescribed statutory maximum is the basic sentence, as evidenced by the plain language of the statute, which requires the imposition of the basic sentence unless altered by the judge. NMSA 1978, Section 31-18-15(B) (“The appropriate basic sentence of imprisonment shall be imposed ... unless the court alters such sentence ... ”). An alteration increasing the basic sentence may only occur if there is a finding of aggravating circumstances. NMSA 1978, § 31-18-15.KA).

¶3{65} In this case, the sentencing judge increased the Defendant’s sentence based on his perception that the jury believed the victim remained alive after being tossed in the well. This fact was not found by the jury, and as such the judge’s perception may have been misplaced, which illustrates the importance of requiring a jury to make a finding of aggravated circumstances before a judge exercises discretion to increase a sentence. In my opinion, adhering to the Sixth Amendment requirement that a jury find facts which may increase a defendant’s confinement does not interfere with judicial discretion. Because I conclude that the United States Supreme Court in Apprendi, Blakely, and Booker has interpreted the Sixth Amendment to require a jury, absent a waiver by the defendant, to make findings which will increase a basic sentence, I would reverse the five-year increase of Defendant’s sentence in this case.

¶4A DEFENDANT HAS A RIGHT TO BE SENTENCED TO THE BASIC SENTENCE ABSENT A JURY FINDING OF AGGRAVATING CIRCUMSTANCES BEYOND A REASONABLE DOUBT

¶5{66} In State v. Wilson, 2001-NMCA-032, ¶¶ 18-21, 130 N.M. 319, 24 P.3d 351, Judge Pickard concisely set forth the historical evolution and intent of the Legislature in enacting Section 31-18-15.1. Important to this history was the noble goal of the Legislature to promote uniformity in sentencing by specifying a basic sentence and then requiring a sentencing judge to articulate findings of aggravating circumstances to justify increasing the period of confinement beyond the basic sentence. The majority concludes that a defendant does not have a right .to be sentenced to the basic sentence. Majority Opinion ¶ 54. This appears to me to be the polestar rationale for its conclusion that the Sixth Amendment does not preclude a sentencing judge from finding aggravating circumstances, which may lead to an increased period of incarceration. I respectfully disagree.

¶6{67} In my opinion, under a plain reading of the sentencing statutes, a defendant has a right to expect that he or she will receive the basic sentence, unless and until there is an articulated finding of either mitigating or aggravating circumstances. This is how the Legislature sought to accomplish uniformity in sentencing — by requiring an explanation of the findings justifying a departure from the basic sentence. If a sentencing judge finds mitigating circumstances, (s)he may reduce the basic sentence by up to one-third. This reduction does not have to be based on a jury finding of mitigating circumstances because the jury verdict during the guilt phase already authorizes a greater sentence, the basic sentence.

¶7{68} If a sentencing judge finds aggravating circumstances, (s)he may increase the basic sentence by up to one-third. As with mitigating circumstances, the sentencing judge must articulate the findings in the record. NMSA 1978, § 31-18-15.1(A). Requiring the sentencing judge to articulate the findings allows the appellate courts to determine whether the findings are supported by the record. See State v. Wilson, 117 N.M. 11, 19, 868 P.2d 656, 664 (Ct.App.1993) (“We will uphold the trial court’s aggravation of a sentence if the circumstances relied on are supported in the record and constitute proper factors to consider under the enhancement statute.”). As demonstrated by appellate court opinions, aggravating circumstances require findings of fact and not simply the consideration of sentencing factors. See e.g. Swafford v. State, 112 N.M. 3, 17, 810 P.2d 1223, 1237 (1991) (“[W]e save for later the question of the reliability of a lack of remorse as a significant factor in sentencing. In the interests of justice, in any event, future sentence enhancements based on a lack of remorse will merit specific findings, and where not so supported will be subject to careful scrutiny on review.” (emphasis added)). Because findings of fact which constitute aggravating circumstances are required to permit a sentencing judge to increase the basic sentence, I agree with the United States Supreme Court that the Sixth Amendment requires a jury to make these specific findings. This is because the jury verdict alone does not authorize the increased sentence. The basic sentence is the maximum authorized by the jury verdict. Additional findings are required to increase the basic sentence. These findings should be made by a jury beyond a reasonable doubt following the guilt phase. Of course, the defendant may stipulate to the facts that constitute aggravating circumstances or waive a jury finding of such aggravating circumstances, in which case the Sixth Amendment is not implicated.

¶8THE JUDGE’S SPECULATION ABOUT WHAT THE JURY FOUND IN ORDER TO INCREASE THE BASIC SENTENCE ILLUSTRATES THE IMPORTANCE OF REQUIRING A JURY FINDING OF AGGRAVATING CIRCUMSTANCES

¶9{69} In this case, before increasing Defendant’s sentence by one-third for conspiracy to commit murder, the judge stated:

For the reasons pointed out by the state this was a very egregious killing. And I’m satisfied that the jury felt — and there’s certainly sufficient evidence — that when [the victim] was thrown into the well he was still alive. And he was left to die there without having means of extricating himself from his predicament. The well was covered over. And the evidence before the jury and the court was that he didn’t die from the blow in the head. I just see no mitigating circumstances in this case.

¶10{70} The sentencing judge both speculated about what the “jury felt” and weighed the evidence on a critical issue, which he ultimately relied on to increase Defendant’s sentence. The issue is critical because during trial the prosecution was adamant that the evidence proved the victim was alive after being tossed into the well. The prosecution also argued vehemently that the evidence established that Defendant knew the victim was alive when he helped to toss him in the well. Defendant’s version, as presented through the testimony of the investigating officer who took Defendant’s statement, was that the co-defendant had killed the victim during a robbery, and that out of fear for his own life, Defendant assisted the co-defendant in tossing the lifeless body into the well.

¶11{71} Important to my analysis is the fact that the jury acquitted Defendant of first-degree premeditated murder. They found him guilty of first-degree felony murder, and perhaps as an accomplice. We do not know which because a special interrogatory is not required for accomplice liability. The speculation by the sentencing judge as to what the “jury felt” may not be unreasonable. However, one might also reasonably speculate that the jury had a reasonable doubt that the victim remained alive once tossed in the well. Did their acquittal of Defendant for premeditated murder mean the jury rejected the prosecutor’s argument that the victim remained alive in the well with Defendant covering the well to leave the victim there to die? If so, the judge’s finding that the victim “was left to die there without having means of extricating himself from his predicament” was inconsistent with the jury finding. Did the jury reject the prosecutor’s argument that Defendant knew the victim was alive after being tossed in the well? Did the jury find Defendant’s version of the events closer to the truth? Did the jury accept Defendant’s version that he believed the victim was already dead when the victim was tossed in the well? Defendant’s version of the events certainly is sufficient to support a conviction for felony murder under an accomplice theory, and could also explain why the jury acquitted him of premeditated murder. After all, if the prosecution was correct that the victim was alive after being tossed in the well, and that Defendant covered the well knowing the victim was alive in order to prevent the victim from getting out and saving himself, what better evidence of premeditated murder? Suffice it to say that adherence to the Sixth Amendment would have permitted the jury to clarify for the court whether it believed the victim was alive after being tossed in the well and was left there to die. Such a jury finding would constitutionally permit the sentencing judge to exercise discretion to increase the basic sentence by one-third under the provisions of Section 31-18-15.1. If the jury did not make such a finding, the very rationale relied on by the judge for increasing Defendant’s sentence would not have been supported in the record and the increase would not have been permissible.

¶12A SENTENCING JUDGE’S DISCRETION IS NOT COMPROMISED BY A JURY’S CONSIDERATION OF EVIDENCE OF AGGRAVATING CIRCUMSTANCES

¶13{72} During oral argument, some concern was expressed regarding the importance of judicial sentencing discretion and how reversing the enhanced sentence in this case might interfere with that discretion. As a preface to my discussion of Apprendi Blakely, and Booker, I think this concern merits comment. I firmly believe a sentencing judge must have discretion in sentencing a defendant convicted of committing a crime. Requiring a jury finding of aggravating circumstances does not interfere with this discretion. Even if a jury finds aggravating circumstances, the sentencing judge does not automatically increase the basic sentence by one-third. The judge may increase it by less or not at all. Likewise, if a jury does not find aggravating circumstances, the judge’s sentencing discretion is still not frustrated. Although the sentencing judge may not increase the basic sentence, the judge may still use discretion in deciding whether to run the sentences concurrently or consecutively, whether to suspend or defer a sentence, or to determine the period and conditions of probation or parole. In doing so, the judge may consider pre-sentence reports, victim impact statements, the circumstances of the crime and the character of the defendant.

We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentenced] within statutory limits in the individual case.

¶14Apprendi, 530 U.S. at 481, 120 S.Ct. 2348 (emphasis omitted).

¶15{73} What occurred during the sentencing of Defendant illustrates how a sentencing judge may continue to exercise discretion, whether or not a jury makes a finding of aggravating circumstances. At the sentencing hearing, the prosecutor urged the sentencing judge to impose the maximum sentence on Defendant. Life in prison for felony murder. Fifteen years for conspiracy to commit murder. Nine years for robbery. Three years for conspiracy to commit robbery. Eighteen months for tampering with evidence. Three years for burglary. Eighteen months for felon in possession of a firearm.2 The prosecutor also asked that the sentences for all but the felony murder be increased by one-third and that all of the sentences run consecutively. The basic sentences would have totaled life plus thirty-three years if run consecutively. The prosecution also sought an increase of sixteen and one-half years, which would have resulted in a total sentence of life plus forty-nine and one-half years.

¶16{74} Although the sentencing judge increased the fifteen year sentence for conspiracy to commit murder by five years, the judge declined to run all of the sentences consecutively. Instead, the judge sentenced Defendant to life plus twenty years, deciding to run the sentences for Counts III-VII concurrent with sentences for Counts I and II. Assuming the jury was asked to, and did, find aggravating circumstances, the sentencing judge could still have imposed the same sentence. Alternatively, had the jury rejected the aggravating cireumstance(s), the sentencing judge could have imposed the same sentence by exercising discretion to run more sentences consecutively so as to still arrive at a sentence equaling life plus twenty years. In my judgment, the sentencing judge exercised wisdom, justice and sound discretion in sentencing Defendant. However, that is not the issue. The issue is whether the United States Supreme Court has interpreted the Sixth Amendment to require juries to make findings of aggravating circumstances before a sentencing judge may exercise discretion to increase a basic sentence. For the following reasons I believe it has.

¶17THE UNITED STATES SUPREME COURT HAS INTERPRETED THE SIXTH AMENDMENT TO REQUIRE JURIES TO FIND BEYOND A REASONABLE DOUBT FACTS THAT MAY INCREASE A DEFENDANT’S SENTENCE

¶18{75} At issue here is whether the sentence enhancements authorized by Section 31-18-15.1 are constitutional in light of the United States Supreme Court’s recent holdings in Blakely and Booker. In Blakely, the Court invalidated a Washington sentencing scheme which provided a basic sentencing range authorized by a defendant’s plea or jury finding of guilt, but which granted the judge the discretion to enhance the sentence above the basic range, up to a separately defined statutory maximum, if the judge found “substantial and compelling reasons justifying an exceptional sentence.” 124 S.Ct. at 2535 (internal quotation marks and citations omitted). There, the defendant pleaded guilty to kidnapping, a Class B felony punishable by incarceration for no more than 10 years. Id. However, specific provisions of Washington law required the judge to sentence the defendant to a standard range of 49 to 53 months, based on the defendant’s “offender score” and the seriousness of the crime, unless the judge found aggravating facts justifying an exceptional sentence. Id. Although the prosecutor recommended imposition of the standard sentence, after a sentencing hearing the judge found that the defendant had acted with deliberate cruelty and had done so in the presence of his minor child. State v. Blakely, 111 Wash.App. 851, 47 P.3d 149, 157 (2002), rev’d by 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. Based on finding these two aggravating circumstances, the judge increased the sentence to 90-months. Blakely, 124 S.Ct. at 2535-36. Note the similarity with New Mexico’s statute, which requires imposition of a basic sentence unless the judge finds aggravating circumstances justifying an increase of the basic sentence by up to one-third.

¶19{76} The Supreme Court held the Washington statute violated the Sixth Amendment because it violated the rale in Apprendi 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.” Blakely, 124 S.Ct. at 2536 (internal quotation marks omitted).3 The Court rejected the State’s argument and the Washington Court of Appeals’ analysis that the sentence did not violate the rale in Apprendi because the verdict authorized a sentence up to 10 years as a class B felony conviction. Id. at 2537. Instead, the Court concluded that the “statutory maximum” for Apprendi purposes was 49 to 53 months, the maximum sentence authorized solely by facts reflected in the defendant’s plea or a jury verdict, rather than the separately defined maximum up to which a judge could elevate a standard sentence based on facts not admitted by a defendant or found by a jury. Id. at 2536. Because Washington law mandated sentencing within the basic range authorized by a defendant’s plea or jury verdict, and only granted discretion to the judge to enhance a sentence beyond this range after finding facts not found by a jury, the Court held that the defendant’s enhanced sentence violated the defendant’s Sixth Amendment right to trial by jury. See id. at 2543. Applying this analysis, I conclude that since the New Mexico Legislature mandates imposition of the basic sentence, and only grants discretion to the judge to increase the basic sentence upon a finding of aggravating circumstances, that an increased sentence would violate the Sixth Amendment if increased without a jury finding of the aggravating circumstances.4

¶20{77} Similarly, in Booker, the United States Supreme Court held that the Federal Sentencing Guidelines violated the Sixth Amendment by authorizing a sentencing judge to enhance a sentence above the amount permitted by the plea or jury verdict alone, based on the judge’s determination of a fact that was not found by the jury or admitted by the defendant. 125 S. Ct at 755-56. In Booker, the defendant was found guilty by a jury of possession with intent to distribute more than 50 grams of crack cocaine, based on evidence presented to the jury that defendant possessed 92.5 grams. Id. at 746. The Anti-Drug Abuse Act (ADAA) prescribed only two quantity-based offenses per drug type, in this case, crack cocaine: (1) the offense of possessing with intent to distribute at least 5 grams of cocaine base, not involving death or serious bodily injury, punishable as 5 to 40 years, 21 U.S.C. § 841(b)(1)(B)(iii) (1986); and (2) the comparable offense of possessing at least 50 grams, punishable as 10 years to life. 21 U.S.C. § 841(b)(l)(A)(iii); see 18 U.S.C. § 3551 et seq. (2000); 28 U.S.C. §§ 991-998 (2000). Had Congress not acted further, a life sentence would have constituted the relevant “statutory maximum” for Apprendi purposes under the federal scheme; therefore, the defendant’s conviction would have permitted the trial judge to sentence him to any term between 10 years and life in prison.

¶21{78} However, Congress altered the relevant “statutory maximum” when the Federal Sentencing Commission, cloaked with legislative authority, adopted narrower guidelines prescribing mandatory sentencing ranges based on a defendant’s criminal history and offense level. See 28 U.S.C. § 994 (1984); Mistretta v. United States, 488 U.S. 361, 367, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (stating that Federal Sentencing Guidelines were binding on the courts). Under these mandatory guidelines, Booker’s criminal history qualified him as a category VI offender, and the jury finding that he possessed 92.5 grams of crack made his crime a level 32 offense. United States v. Booker, 375 F.3d 508, 510 (7th Cir.2004) (citing U.S. Sentencing Guidelines Manual §§ 2D1.1(c)(4), 4A1.1 (Nov. 2003) (“U.S.S.G.” or “Guidelines”), and explaining that under the Guidelines, 32 is the base offense level when a defendant possesses at least 50 grams but less than 150 grams of crack). The sentencing table under the Guidelines mandated that a trial judge select a “base” sentence of 210 to 262 months incarceration for a category VI criminal committing a level 32 offense. See U.S.S.G. §§ 2Dl.l(c)(4), 4A1.1. Thus, under the Guidelines, the “statutory maximum” for Apprendi purposes, under which the judge could sentence Booker based on the plea or jury verdict alone, was 262 months rather than life.

¶22{79} However, at a sentencing hearing the trial judge found by a preponderance of the evidence that Booker possessed a total of 658.5 grams of crack and that he had obstructed justice. Booker, 125 S.Ct. at 746, 763. Based on these findings, while Booker’s criminal history remained a category VI, his offense level was increased to 36 for possessing between 500 grams and 1.5 kilograms of crack, and was increased another two levels because of the finding of obstructing justice. See Booker, 375 F.3d at 509; U.S.S.G. § 4A1.1, 3C1.1. These findings mandated a sentence under the Guidelines of between 360 months and life imprisonment. The judge chose the lowest sentence within the range and sentenced Booker to 30 years. Booker, 125 S.Ct. at 746 (“Thus, instead of the sentence of 21 years and 10 months that the judge could have imposed on the basis of the facts proved to the jury beyond a reasonable doubt, Booker received a 30-year sentence.”).

¶23{80} In invalidating Booker’s sentence under the mandatory Guidelines, the United States Supreme Court reaffirmed its holding in Apprendi that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at 756. The Court explained that had the Guidelines been “advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment,” as there has never been any doubt about the authority of a judge to exercise discretion in imposing a sentence within a statutory range. Id. at 750 (citing Apprendi, 530 U.S. at 481, 120 S.Ct. 2348; Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). However, because the Guidelines were mandatory, the statutory range for Apprendi purposes was not 10 years to life, as stated in Section 841(b)(1)(A)(iii), but rather 210 to 262 months based on Booker’s criminal history and the quantity of drugs the jury found he possessed. In other words, the statutory range Booker faced based solely on the jury finding that he possessed 92.5 grams of crack was 210 to 262 months, not 10 year's to life. Had the jury considered evidence and found beyond a reasonable doubt that Booker possessed 658.5 grams of crack and was guilty of obstruction of justice, the statutory range would have been 360 months to life. Under the latter hypothetical, the sentence imposed on Booker would not have violated his Sixth Amendment rights.

¶24{81} To remedy the constitutional vice, the United States Supreme Court severed and excised two provisions of the Federal Sentencing Act: (1) the provision requiring sentencing courts to impose a sentence within the Guidelines range, and (2) the provision that set forth standards for review of sentences on appeal. Booker, 125 S.Ct. at 764 (citing 18 U.S.C. §§ 3553(b)(1), 3742(e) (Supp.2004)). As applied to Booker, this remedy effectively made the Guidelines discretionary so that the jury finding that the defendant was guilty of possessing over 50 grams of crack cocaine authorized a sentence of incarceration between 10 years and life. A judge could then exercise discretion to sentence the defendant to any period between 10 years and life by consulting the Guidelines and other sentencing goals. See id. at 764 (citing 18 U.S.C. § 3553(a) (Supp. 2004)).

¶25{82} New Mexico’s sentencing statute provides a basic sentence for different degrees of noncapital felonies, based on a defendant’s guilty plea or a jury finding of guilt. NMSA 1978, § 31-18-15. The judge must hold a sentencing hearing to determine the existence of aggravating or mitigating circumstances. NMSA 1978, § 31-18-15.1(A). A judge has discretion on whether or not to alter a basic sentence up to one-third of the basic range “upon a finding by the judge of any mitigating or aggravating circumstances surrounding the offense or concerning the offender.” Id. In making such findings, the judge may rely on any evidence or statements he or she finds useful. Id. If a judge enhances a sentence, Section 31-18-15.1 requires a judge to state his or her reasons for doing so on the record, which allows appellate courts to review the increase to ensure the reasons are supported in the record and not based on an improper motive. See, e.g., Reyes v. Quintana, 853 F.2d 784, 785 (10th Cir.1988).

¶26{83} The State urges us to uphold our sentencing scheme as providing a broad range authorized by a guilty plea or jury verdict within which a judge has unfettered sentencing discretion. The majority does so. Indeed, before the United States Supreme Court decided Blakely, the New Mexico Court of Appeals held that Sections 31-18-15 and 31-18-15.1 should be read together to provide a range of permissible sentencing, and that sentencing within this range was constitutional under Apprendi so long as the judge placed on the record any finding of aggravating or mitigating circumstances. Wilson, 2001-NMCA-032, ¶ 4, 130 N.M. 319, 24 P.3d 351. This holding was called into question by a different panel of the Court of Appeals, which held Section 31-18-15.1 unconstitutional in light of Blakely. State v. Frawley, 2005-NMCA-017, ¶¶ 12-13, 137 N.M. 18, 106 P.3d 580. This panel concluded that the basic sentence in Section 31-18-15 was the maximum sentence a judge could impose solely on the basis of the facts reflected in the jury verdict. Id. at ¶¶ 12-13. The Court of Appeals in Frawley read Blakely to say:

When the jury considers the facts relevant to the elements of an offense in determining guilt or innocence, the criminal sanctions for that offense cannot be increased after the verdict based on facts the jury has not specifically considered in connection with its finding of guilt, whether or not the facts are labeled “sentencing factors,” and even if the facts are not material to the statutory elements of the offense.

¶27Id. at ¶ 12.

¶28{84} As explained in Frawley, the United States Supreme Court explicitly rejected an approach taken by the Washington court in Blakely, which was similar to our Court of Appeals’ analysis in Wilson, and now to the analysis of the majority. See Frawley, 2005-NMCA-017, ¶¶ 11-13, 137 N.M. 18, 106 P.3d 580. In Blakely, the Washington court had read the statutory provisions together to provide a permissible range of sentencing up to a statutory maximum, so that a judge’s finding of aggravating factors did not increase the punishment authorized by a jury’s findings or defendant’s plea. See Blakely, 47 P.3d at 159, rev’d by 124 S.Ct. at 2537-38. In rejecting the Washington court’s reasoning, the Supreme Court emphasized that:

[T]he relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum [sentence] he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.

¶29Blakely, 124 S.Ct. at 2537 (internal citation omitted). The Washington Court of Appeals’ attempt to construe the 90 month sentence as falling within the statutory range of no more than 10 years for a Class B felony failed because the trial judge was required to impose a standard sentence of 49 to 53 months unless the judge found aggravating facts justifying an exceptional sentence. Id. at 2537-38. Stated differently, the statutory maximum based on the guilty plea or jury verdict alone was 53 months, not 10 years, and enhancing the sentence above that amount based on judicial findings violated the Sixth Amendment. Stated in terminology used by the majority, the defendant had a right to be sentenced to 53 months, not anything up to 10 years. Before the defendant could be sentenced to more than 53 months, the United States Supreme Court held that the defendant had a Sixth Amendment right to have a jury make the requisite findings justifying the increase.

¶30{85} My interpretation of Apprendi, Blakely, and Booker leads me to conclude that Section 31-18-15.1 is not unconstitutional on its face but, nevertheless, may be unconstitutional as applied. A trial judge, even upon finding aggravating circumstances, is not required to increase a sentence and therefore may apply the statute in a manner that comports with Blakely. Therefore the statute is constitutional on its face. However, I believe the trilogy of Apprendi Blakely, and Booker requires us to determine the maximum sentence authorized solely by the facts established by a plea of guilty or facts established at trial and reflected in a jury verdict. If the trial judge enhances a sentence above the statutory basic sentence after finding facts not supported by a plea of guilty or the jury verdict, the increased sentence violates the Sixth Amendment. This is true regardless of whether the judge is required to increase the sentence or has discretion to increase the sentence; in either scenario the sentence violates the rule in Apprendi as explained in Blakely and Booker, because the judge exercises discretion only after finding facts not established by the plea or facts not established at trial and reflected in the jury verdict. Blakely, 124 S.Ct. at 2537 (“Our precedents make clear, however, that the ‘statutory maximum’ for Apprendi purposes 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.” (emphasis omitted)).

¶31{86} Under Blakely, Booker and Apprendi, Section 31-18-15.1 may be constitutionally applied so long as: (1) the defendant has stipulated to the judicial fact-finding for sentencing purposes; or (2) the defendant admits the facts relied on by the court to increase the sentence. Where the prosecution serves notice of its intent to seek an increase in the basic sentence, unless the defendant admits such facts or stipulates to the judge’s authority to decide such facts, I would hold that such facts must be found by a jury beyond a reasonable doubt. Without a jury determination, application of Section 13-18-15.1 under such circumstances would violate the Sixth Amendment under Blakely and Booker. To the extent Wilson (declaring Section 31-18-15.1 to be constitutional) and Frawley (declaring Section 31-18-15.1 to be unconstitutional on its face) conflict, I would overrule these' cases.

¶32{87} For all of the foregoing reasons, I respectfully dissent from Section III of the majority opinion and would reverse the increase of Defendant’s sentence by five years. I would remand to the trial court for imposition of a sentence without the five year increase or to convene a jury to consider whether aggravating circumstances exist which would justify imposition of the increased five year sentence.