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A former teacher’s assistant sentenced to more than 40 years on child molesting charges could win a partial resentencing after she presented an issue of first impression to the Court of Appeals of Indiana, which held her Sixth Amendment rights were violated.
Jennifer Holmgren, who was employed as a paraprofessional at an elementary school with the Tippecanoe County School Corporation, was convicted of Level 1 felony child molesting, Level 4 felony child molesting and Class A misdemeanor inappropriate communication with a child. The Tippecanoe Superior Court sentenced her to an aggregate of 47 years in the Department of Correction, with five years suspended to probation.
On appeal, Holmgren argued that her Sixth Amendment rights were violated when she was classified as a credit restricted felon and when she was sentenced under Indiana Code § 35-50-2-4(c) based upon a fact found by the trial court, not the jury — specifically, that the victim was under the age of 12.
The Court of Appeals partially affirmed, first rejecting Holmgren’s argument regarding her status as a credit restricted felon. The COA found Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny were inapplicable.
In a matter of first impression, however, the appellate court agreed that Holmgren’s Sixth Amendment rights were violated when she was sentenced to 40 years on Count II — Level 1 felony child molesting — under I.C. 35-50-2-4(c) based upon a fact not found by the jury.
“We conclude that, because the jury here was not presented with the determination of whether B.E. was under the age of twelve when he was molested, the trial court could not sentence Holmgren under Indiana Code Section 35-50-2-4(c) without violating Holmgren’s Sixth Amendment rights,” Judge Elizabeth Tavitas wrote.
“Our Supreme Court has held: ‘Where we find an irregularity in a trial court’s sentencing decision, we have the option to remand to the trial court for a clarification or new sentencing determination, to affirm the sentence if the error is harmless, or to reweigh the proper aggravating and mitigating circumstances independently at the appellate level,’” Tavitas continued, quoting Baber v. State, 842 N.E.2d 343, 345 (Ind. 2006), cert. denied, 549 U.S. 855, 127 S. Ct. 128 (2006).
“We elect the first option here. Accordingly, we reverse and remand for a new sentencing hearing regarding Count II in which the State: (1) may elect to prove before a jury that B.E. was molested when he was under the age of twelve; or (2) have Holmgren resentenced for Count II pursuant to Indiana Code Section 35-50-2-4(b).”
The case is Jennifer R. Holmgren v. State of Indiana, 21A-CR-2756.
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