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ATTORNEY FOR APPELLANT Kimberly S. Robinson Indianapolis, IN

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Ellen H. Meilaender Deputies Attorney General Indianapolis, IN

In the

Indiana Supreme Court
_________________________________ No. 41S01-0506-CR-282 KELLI JO TRUSLEY, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Johnson Superior Court, No. 41D02-0110-CF-158 The Honorable Cynthia S. Emkes, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 41A01-0403-CR-109 _________________________________ June 17, 2005 Shepard, Chief Justice. Appellant Kelli Jo Trusley received an enhanced sentence for reckless homicide. Her appeal requires us to consider whether various aggravators used to enhance the sentence were proper under Blakely v. Washington.

We conclude that three of the aggravating circumstances the court found were improper under Blakely. Two were proper based on admissions during the sentencing hearing.

Considering the weight of these two as against the mitigating factors, we conclude that the enhanced sentence should not be affirmed, and thus remand for a new sentencing.

Facts and Procedural History

Kelli Jo Trusley provided day care services to a child named Brian Small. On February 27, 2001, Brian was placed in Trusley's care. During the time Small was in Trusley's care, he fell out of the bed she had placed him in for a nap. Apparently, Trusley did not discover that Small had fallen from the bed until sometime after the fall. 1 Although Trusley attempted to resuscitate Small after she discovered him on the bedroom floor, he died as a result of the injuries sustained in the fall. 2

A grand jury indicted Trusley for neglect of a dependent, a class B felony. Ind. Code Ann.

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Indiana Law