¶1concurring.
¶2I agree with the majority that Guter-muth’s sentence was proper, but I do not believe the trial court’s finding “position of trust” as an aggravating circumstance to be acceptable under Blakely. The remaining proper aggravators were, however, sufficient to permit the trial court to sentence Gutermuth as it did. I accordingly concur in the result.
¶3Gutermuth did not testify at his sentencing hearing. The position of trust aggra-vator was premised on information in the probable cause affidavit, which affidavit had been admitted into evidence without objection. I do not believe information contained in a probable cause affidavit, but not admitted or stipulated to by the defendant, can support the finding of an aggravating circumstance under Blakely.
¶4In Vela v. State, 832 N.E.2d 610 (Ind.Ct.App.2005), we determined information in a pre-sentence investigation report could not support a finding of an aggravating circumstance, even though the defendant had stated the report was correct: “acknowl-edgement the pre-sentence report was correct is not, without more, an admission sufficient to support an aggravator based on the nature and circumstances of the crime.” I believe the same is true of information in a probable cause affidavit. Gutermuth did not admit or stipulate to the information in the affidavit, so information included therein cannot properly support the finding of an aggravating circumstance under Blakely.
¶5Transfer was not sought in Vela, and two panels of this court have since held such information could be utilized at sentencing without violating Blakely if the defendant admitted the information was correct. See Sullivan v. State, 836 N.E.2d 1031, 1036 (Ind.Ct.App.2005) (Sullivan did not object to or contest the accuracy of the probable cause affidavit), and Davis v. State, 835 N.E.2d 1102 (Ind.Ct.App.2005) (Davis made several corrections to his pre-sentence investigation report, then stated *738he had no further corrections), trans. denied.
¶6I believe Velawas correctly decided and the facts before us — Gutermuth’s failure to object to the incorporation of the probable cause affidavit as part of the factual basis for the guilty plea — are more like those in Velathan those in Davis. I would therefore find the position of trust aggravator runs afoul of Blakely.
¶7. The Davispanel noted the Velaholding that a defendant's acknowledgement the pre-sentence report was correct is not, without more, an admission sufficient to support an aggravator based on the nature and circumstances of the crime. It then stated:
Our opinion is not necessarily contrary to Vela's holding, inasmuch as our opinion is factually distinguishable on two grounds: (1) we consider whether Davis admitted that he was on probation when he committed these crimes for purposes of Blakely, not whether he admitted the nature and circumstances of the crimes; and (2) Davis actually made corrections to the PSI, including a correction involving his release to probation, and confirmed the date on which he was released to probation.
¶8835 N.E.2d at 1118 n. 9.