¶1concurring.
¶2I concur, but write to clarify that it is because the aggravators needed to enhance Walsman's sentence were not proper aggravators, that application of the advisory sentence regime would violate the prohibition against ex post facto laws. Under the presumptive sentence regime, Walsman could not be sentenced, as we conclude, to more than the presumptive sentence. Under the advisory sentence regime, Walsman could be sentenced to any sentence within the range for a class B felony without regard to aggravators or the lack of them.
¶3Where there are aggravators that would support an enhanced sentence under the presumptive sentence regime and would not implicate Blakely concerns, application of the advisory sentence regime would not expose the defendant to a possibly more severe sentence.
¶4As a practical matter, it would appear that analysis of the sentence under the presumptive regime should be first done. If the sentence is properly enhanced under that regime, it would also be proper under the advisory sentence regime. If the sentence is improperly enhanced under the presumptive sentence regime, it would violate ex post facto to apply the advisory sentence.