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819 N.E.2d 840

Patrick v. State

Indiana Court of Appeals

Decided December 23, 2004

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Indiana Court of Appeals · decided 2004-12-23

Cited by 9 later decisions — most recently May 2008

9 state decisions

Key passage — most relied on by later courts

“the fact that the defendant was on probation at the time he committed the instant offense is derivative of the defendant's criminal history and, therefore, proper under Blakely.”

quoted by 1 later decision, including Patrick v. State

“A defendant's 'probationary period' begins immediately after sentencing, even if his or her actual probation begins at a later date.”

quoted by 1 later decision, including Neff v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2004-12-23

View the full empirical analysis of this case →

VAIDIK, Judge,

¶1concurring in part.

¶2I concur in result. I part ways with the majority's conclusion that Blakely is not implicated as to the aggravator that Patrick was on probation at the time he committed the instant offense. The majority reaches this conclusion, pursuant to Bled-soe, by finding that this aggravator is derivative of Patrick's criminal history.

¶3One cannot be on probation without having been convicted of a crime; thus, being on probation infers that one has a criminal record. In this sense, the act of being on probation is derivative of criminal history. The opposite-someone with a criminal record must currently be on probation or have been on probation at some point in his life-is not necessarily true. Similarly, whether someone is on probation on a given day, which is fundamental to the *851aggravator in question above, is a question of fact that is not derivative of criminal history. In some cases, whether a defendant is on probation on a certain day is not entirely clear. See, eg., Kopkey v. State, 7483 N.E.2d 381, 339 (Ind.Ct.App.2001) ("A defendant's 'probationary period' begins immediately after sentencing, even if his or her actual probation begins at a later date."). In sum, the fact that someone has a criminal history does not mean that that individual was on probation on a certain day. Therefore, I think that the aggravator at issue here-that Patrick was on probation at the time of the offense-is a "fact" that must be admitted by Patrick or that a jury must find beyond a reasonable doubt.

¶4KIRSCH, Chief Judge, concurring in part and dissenting in part.

¶5I fully agree with the holding of the majority that the decision of the United States Supreme Court in Blakely v. Washington, - U.S. --, 124 S.Ct. 2581, 159 L.Ed.2d 408 (2004), reh'g denied, implicates Indiana's sentencing schenie, but I believe that the Patrick failed to preserve the issue for appellate review by failing to object at the time of sentencing. I, therefore, respectfully dissent and would affirm the decision of the trial court in all respects.

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