¶1concurring.
¶2I fully concur but in doing so write separately to set forth a view with regard to the Supreme Court’s footnote statement in Prickett v. State, 856 N.E.2d 1203, 1207 n. 3 (Ind.2006), that “[w]e apply the version of the statute in effect at the time of Prickett’s sentence.... ” I do not agree that such statement dictates a conclusion that in all cases the sentencing date is the critical date. I would note that the majority opinion does not so conclude but only says that the Supreme Court statement “seems to indicate” such. Slip op. at 3 n. 2.
¶3At the outset, it may be worthy of note that as stated in Ewing v. State, 171 Ind.App. 593, 358 N.E.2d 204, 206 (1976); “footnotes are comments upon the text rather than a part of it.” Depending upon the facts, such comments may be considered as dictum as opposed to a holding of the decision. Id.To this extent, one might deduce that as stated in Jones v. State, 807 N.E.2d 58, 67 (Ind.Ct.App.2004), “Our supreme court does not decide important questions of law in footnotes.”
¶4Be that as it may, the Ewingcourt appropriately observed that such footnote comments as are indicative of an intent to benefit the bench and bar are deserving of “respect from an intermediate court and require[ ] special consideration.” 358 N.E.2d at 206.
¶5In Prickett, I do not construe the footnote statement as an all-inclusive holding. In that case, the law in place at all pertinent times, including the date of sentencing, was the pre-April 25, 2005 law. Therefore, it was a foregone conclusion that our Supreme Court would use the old sentencing scheme in assessing Prickett’s sentence. To the same effect is Reyes v. State, 848 N.E.2d 1081 (Ind.2006), cited in the Prickettfootnote.
¶6More importantly, in Prickett, the Court relied upon Weaver v. State, 845 N.E.2d 1066 (Ind.Ct.App.2006), trans denied. In this light, therefore, I am unable to discern an intent on the part of the Supreme Court to repudiate the rationale underlying the Weaverdecision. To the contrary, I believe that because Prickettpin-point cites to 845 N.E.2d at 1070-1072 it is to be construed as an approval of the Weaverrationale as set forth on those pages. That rationale is that any sentence imposed after April 25, 2005 must be viewed under the pre-existing sentencing scheme if the offense for which the sentence is being imposed was committed prior to April 25, 2005. To do otherwise would be to “violate the constitutional protections against ex post facto laws.” 845 N.E.2d at 1070.