Cowens v. State , 817 N.E.2d 255 ( 2004 )

817 N.E.2d 255 (2004)

Joshua L. COWENS, Appellant-Defendant,
v.
STATE of Indiana, Appellee.

No. 01A02-0312-CR-1048.

Court of Appeals of Indiana.

October 6, 2004. Publication Ordered October 25, 2004.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION ON PETITION FOR REHEARING

SULLIVAN, Judge.

Joshua Cowens has filed a petition for rehearing alleging violation of the holding in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Concluding that Blakely is not implicated in the situation where a trial court orders consecutive sentences based upon its discretion as granted by Indiana Code § 35-50-1-2(c) (Burns Code Ed. Supp.2003), we decline to extend the holding of Blakely to consecutive sentences.

Judgment affirmed.

MAY, J., and VAIDIK, J., concur.

ORDER

This Court having heretofore handed down its Memorandum Decision on the Appellant's Petition for Rehearing marked Not for Publication;

The Appellee, by counsel, has filed herein a Verified Motion for Publication of Memorandum Decision, alleging therein that this decision clarifies the effect that Blakely has on judicial discretion for sentencing and that there are no published decisions in Indiana that have applied Blakely in this manner.

The Court having examined said Motion for Publication now finds that the same should be granted.

IT IS THEREFORE ORDERED that the Appellee's Verified Motion for Publication of Memorandum Decision addressed to this Court's decision on rehearing, heretofore handed down in this cause on October 6, 2004, is now ORDERED PUBLISHED.