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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: BRUCE W. GRAHAM Trueblood & Graham P.C. Lafayette, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MICHAEL D. SHAW, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 79A02-0606-CR-497

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Donald C. Johnson, Judge Cause No. 79D01-9903-CF-28

February 7, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Michael Shaw appeals his sentence following his guilty plea for Child Molesting, as a Class A felony. He presents the following issues for our review: 1. Whether the trial court violated his Sixth Amendment right to have aggravating factors determined by a jury, in violation of Blakely v. Washington, 542 U.S. 296 (2004). Whether the trial court abused its discretion when it identified and weighed aggravators and mitigators. Whether his sentence is inappropriate in light of the nature of the offense and his character.

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We affirm. FACTS AND PROCEDURAL HISTORY On March 22, 1999, Shaw entered his then-ten-year-old daughter's bedroom, pulled her pajama bottoms to one side, and "put his tongue on her vagina." Appellant's App. at 20. Shaw admitted those facts to police when he was interviewed. Accordingly, the State charged Shaw with child molesting, as a Class A felony, and incest, as a Class B felony. Shaw and the State entered into a plea agreement whereby Shaw pleaded guilty to child molesting, and the State dismissed the incest charge. The plea agreement provided that Shaw's sentence would be capped at thirty-five years. At sentencing, the trial court identified four aggravators, namely: criminal

history, he committed another offense while on bond for the instant offense, violation of a position of trust with the victim, and that he is in need of correctional treatment that can best be provided by a penal facility. The trial court did not identify any mitigators. The court imposed a thirty-five year sentence. This belated appeal ensued.
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DISCUSSION AND DECISION Issue One: Blakely Shaw first contends that the trial court erred when it identified certain facts not found by a jury as aggravators, in violation of Blakely v. Washington, 542 U.S. 296 (2004). But the State points out that the trial court identified two valid aggravators that do not violate Blakely, which are sufficient to support Shaw's enhanced sentence. We agree with the State. Shaw concedes that the trial court's identification of his criminal history as an aggravator does not violate Blakely. But Shaw asserts that the position of trust

aggravator constitutes a Blakely violation. In support of that contention, Shaw cites to Trusley v. State, 829 N.E.2d 923 (Ind. 2005). There, the trial court listed several

aggravators, including that Trusley had abused a position of trust. Trusley appealed, arguing in part that the position of trust aggravator was neither found by a jury nor admitted in accordance with the holding in Blakely. Our supreme court found that the position of trust aggravator was supported factually by Trusley's admission that she was the victim's day care provider. The court noted that "the [trial] court did not enhance the sentence on the grounds that Trusley was both in a position of trust and [the victim's] day care provider. Rather, it supported the position of trust aggravator by reference to the admitted fact that Trusley was Small's day care provider." Trusley, 829 N.E.2d at 927. The supreme court's opinion in Trusley may be confusing when it states, "[o]f course, as we said in Morgan, judicial statements such as `in a position of trust' cannot `serve as separate aggravating circumstances.'" Trusley, 829 N.E.2d at 927 (citing
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Morgan v. State, 829 N.E.2d 12, 17 (Ind. 2005)). But the supreme court did not hold in Trusley that abuse of a position of trust may not be used as an aggravator. And despite the apparent implication of the language quoted from Trusley, the court in Morgan did not so hold. Rather, in Morgan, the court held that statements such as those that are "`derivative' of criminal history[] are legitimate observations about the weight to be given to facts appropriately noted by a judge alone under Blakely. [But] they cannot serve as separate aggravating circumstances." Morgan, 829 at 17. Read together,

Morgan and Trusley stand for the rule that facts derivative of and/or supporting an aggravator may be used to prove an aggravator but may not be used, by themselves, as separate aggravators. Here, Shaw admitted that he is the victim's father. Accordingly, the trial court's identification of the position of trust aggravator does not violate Blakely. The trial court identified two valid aggravators. Because we determine, below, that those two

aggravators are sufficient to support Shaw's enhanced sentence, we need not discuss the other two challenged aggravators under Blakely. Issue Two: Aggravators and Mitigators Shaw asserts that the trial court improperly identified and weighed aggravators and mitigators when it imposed an enhanced sentence. 1 The determination of the

appropriate sentence rests within the discretion of the trial court, and we will not reverse the trial court's determination absent a showing of manifest abuse of that discretion. Bacher v. State, 722 N.E.2d 799, 801 (Ind. 2000). The trial court's wide discretion
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Again, Shaw was sentenced in 1999. Thus, although the sentencing statutes were amended in 2005, we analyze Shaw's claims under the law applicable to the prior sentencing scheme.

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extends to determining whether to increase the presumptive sentence, to impose consecutive sentences on multiple convictions, or both. Singer v. State, 674 N.E.2d 11, 13 (Ind. Ct. App. 1996). If the sentence imposed is authorized by statute, we will not revise or set aside the sentence unless it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B); McCann v. State, 749 N.E.2d 1116, 1121 (Ind. 2001). Here, at sentencing, the trial court identified two valid aggravating circumstances, namely, Shaw's criminal history and his violation of a position of trust with the victim. The court did not identify any mitigating circumstances. Under the applicable sentencing scheme, the presumptive sentence for a Class A felony was thirty years, and the trial court was permitted to add up to twenty years for aggravating circumstances. See former Ind. Code

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