Baker, J.
Hitch argues that the trial court violated his Sixth Amendment right to a jury trial when it made a domestic violence determination and found a fact that increased the penalty for his crime beyond the prescribed statutory maximum. He contends that this determination violated Blakely v. Washington, which requires that facts that increase the penalty for a crime beyond the statutory maximum be submitted to a jury. [Footnote omitted.] 542 U.S. at 301.
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In relevant part, Indiana Code section 35–31.5-2-78 defines a “crime of domestic violence” as an offense that has as an element the use of physical force or threatened use of a deadly weapon against 1) a current or former spouse, parent, or guardian, 2) a person with whom the defendant has a child in common, 3) a person who was cohabitating with or had cohabitated with the defendant as a spouse, parent, or guardian, or 4) a person who was or had been similarly situated to a spouse, parent or guardian. Here, the trial court made a domestic violence determination regarding Hitch pursuant to the domestic violence determination statute, which provides:
(a) At the time of sentencing, a court shall determine whether a person has committed a crime of domestic violence (as defined in IC 35–41–1–6.3). [Footnote omitted.]
(b) A determination under subsection (a) must be based upon:
(1) evidence introduced at trial; or
(2) factual basis provided as part of a guilty plea.
(c) Upon determining that a defendant has committed a crime of domestic violence, a court shall advise the defendant of the consequences of this finding.
(d) A judge shall record a determination that a defendant has committed a crime of domestic violence on a form prepared by the division of state court administration.
I.C. § 35–38–1–7.7. Under federal law, any person convicted of a misdemeanor crime of domestic violence is prohibited from possessing a firearm. 18 U.S.C. § 922(g)(9). Therefore, the trial court’s determination that Hitch committed a crime of domestic violence means that Hitch may not possess a firearm.
The State argues that this result of the domestic violence determination does not implicate the rule in Blakely because that rule was only intended to apply to the length of a defendant’s incarceration or criminal fines. It maintains that “Ind. Code § 35-38-1-7.7 was enacted in 2003 and defines ‘crime of domestic violence’ the same way as federal law. . . . [t]he trial court’s domestic violence finding does not change the elements of Hitch’s offense but only specifies the consequences intended by federal law, that Hitch may not possess a firearm.” Appellee’s Br. p. 10. The State argues that the Indiana legislature intended the domestic violence determination to “facilitate compliance” with preexisting federal law and contends that the application of Indiana Code section 35-38-1-7.7 is not a criminal punishment or penalty. Id. at 11-12.
It is true that the Supreme Court included the traditional role of the jury in its reasoning when determining that Apprendi applied to criminal fines. Id. However, we do not believe that it intended to imply that Apprendi and Blakely only apply to penalties imposed as a result of facts traditionally or historically found by juries.
Moreover, in Goldsberry v. State, 821 N.E.2d 447, 465 (Ind. Ct. App. 2005), a panel of this court determined that the Indiana legislature intended the domestic violence determination applied pursuant to Indiana Code section 35-38-1-7.7 to be a criminal punishment. Furthermore, in Kazmier v. State, 863 N.E.2d 912, 915 (Ind. Ct. App. 2007), we reiterated our holding in Goldsberry, that “‘our legislature intended the sanction to be a criminal punishment.’” (quoting Goldsberry, 821 N.E.2d at 465.) (emphasis in original). In Goldsberry, we found the consequence of applying the domestic violence determination–the prohibition against owning or possessing a firearm–to be a criminal punishment in violation of the ex-post facto provisions of the United States Constitution and the Indiana Constitution. 821 N.E.2d at 465. We see no reason why, if the domestic violence determination results in criminal punishment for purpose of ex-post facto provisions, it would not be a criminal punishment for the purpose of determining whether there is a Blakely violation. Therefore, the domestic violence determination in Indiana Code section 35-38-1-7.7 is subject to the rule in Blakely.
MAY, J., and BARNES, J., concur.