Scott Hitch appeals the trial court’s determination declaring he committed a crime of domestic violence. Concluding there was no violation of Hitch’s Sixth Amendment right to trial by jury, and further concluding the evidence was sufficient to sustain the determination, we affirm the judgment of the trial court.
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[Hitch’s romantic relationship with the victim ended in August 2013, and she moved out of his apartment at that time. Then after an altercation at the apartment in October 2013, a] jury found Hitch guilty of [A-misdemeanor] battery only. [Footnote omitted.] Thereafter the trial court sentenced Hitch to the maximum term of 365 days imprisonment with twelve days executed and 353 days suspended to probation. Under provisions of Indiana Code section 35-38-1-7.7(a), the trial court also determined Hitch committed a crime of “domestic violence.” [Footnotes omitted.] Hitch objected on grounds his relationship with Bruce did not satisfy the statutory requirements for domestic violence. The trial court disagreed and pursuant to Indiana Code section 35-38-1-7.7(c) advised Hitch that this determination rendered him ineligible to possess a firearm.4
[Footnote 4: The statute provides in relevant part: “Upon determining that a defendant has committed a crime of domestic violence, a court shall advise the defendant of the consequences of this finding.” One such consequence is “a person who has been convicted of a crime of domestic violence may not possess a firearm. . . .” I.C. § 35-47-4-7(a) (Supp. 2012).]
Hitch appealed raising the following restated claims: (1) the firearm restriction amounted to additional punishment above the statutory maximum for misdemeanor battery, and because the facts supporting the enhancement were not submitted to a jury the determination ran afoul of the Sixth Amendment; and (2) the evidence was not sufficient to support a finding that he committed a crime of domestic violence. The Court of Appeals reversed the judgment of the trial court based on Hitch’s first claim and finding it dispositive did not address his sufficiency claim. [Citation omitted.] Having previously granted transfer, we now affirm the trial court’s judgment. Additional facts are set forth below.
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We first observe and Hitch concedes he did not object at trial to the domestic violence determination on the grounds of a Sixth Amendment violation. … Thus we must review this claim through the lens of fundamental error. …
In Blakely v. Washington, the United States Supreme Court held “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” [Citation omitted.] …
According to Hitch the firearm prohibition constitutes punishment within the meaning of the Sixth Amendment and thus the underlying facts supporting the prohibition—a determination of domestic violence—must be found by a jury and proven beyond a reasonable doubt. Otherwise, Hitch contends, the prohibition is in violation of his Sixth Amendment right to trial by jury …. The State counters the firearm prohibition is not a punishment at all, but instead “the intent and effect of a domestic violence determination in Indiana is to facilitate compliance with the pre-existing federal law that prohibits domestic violence offenders from possessing firearms.” [Footnote and record citation omitted.]
Although disagreeing the statute is punitive in nature, the State nonetheless implicates what is commonly referred to as the “intent-effects” test, which provides a useful analytical framework for examining whether the statute here is constitutionally infirm. … With this framework in mind we examine Indiana Code section 35-38-1-7.7 (which we will refer to for convenience as the “firearm prohibition statute”).
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Although … location of the statute within the criminal code represents a strong indication the legislature intended a punitive intent, this fact alone is not dispositive. … [T]he statute also advances a legitimate regulatory purpose, namely public safety by ensuring firearms are kept out of the hands of domestic abusers. … We conclude that at the very least there is some amount of ambiguity as to whether the legislature intended to impose punishment by enacting the firearm prohibition statute. Therefore, assuming without deciding the legislative intent behind the statute was to create a civil, non-punitive regulatory scheme, we examine whether the statute is so punitive in effect that it negates that intent.
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In summary, of the seven factors identified by [Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)] as relevant to the inquiry of whether a statute has a punitive effect, three factors—affirmative disability or restraint, traditional aims of punishment, and application to criminal behavior—point in favor of treating the effect of the firearm prohibition statute as punitive. The remaining factors, particularly factor seven—excessiveness—point in the other direction. As we indicated earlier although “no one factor is determinative,” we nonetheless give “greatest weight” to factor seven, and “our task is not simply to count the factors on each side, but to weigh them.” [Citations omitted.] After weighing these factors we conclude the firearm prohibition statute is non-punitive. But even if the balancing of these factors indicated that statute was slightly punitive, the statute is not so punitive in effect that we can say with certainty the statute negates our assumption the legislature intended to create a civil, non-punitive regulatory regime [or the presumption that a statute is constitutional unless clearly overcome by a contrary showing]. * * * In essence Hitch has failed to carry his burden of proof. There was no error here let alone fundamental error.
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We affirm the judgment of the trial court.
Rush, C.J., and David, J., concur.
Massa, J., concurs in result with separate opinion in which Dickson, J., joins.
Massa, J., concurring in result with separate opinion.
I agree with the holding of the Court today, that the loss of firearm privileges which accompanies a “crime of domestic violence” determination by a trial judge at sentencing does not violate Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and its progeny. I do not, however, concur in the Court’s rationale, because I believe it begins a slow march in the wrong direction.
We have previously confronted the loss of constitutional rights incident to a criminal conviction, and determined that such a loss is merely a “collateral consequence” of conviction, rather than a distinct criminal punishment. [Citations omitted.] This is consistent with Supreme Court precedent, holding that the disenfranchisement of convicted felons (both during incarceration and after release) is not punitive, or otherwise violative of the Fourteenth Amendment. [Citations omitted.]
And what’s more, none of this body of precedent relied upon the federal [Mendoza-Martinez] test for whether a government restriction is “punitive” rather than “regulatory” under the United States Constitution. … Indeed, federal law holds that its virtually-identical firearm restriction—18 U.S.C. § 922(g)(9) (2012)—is not a criminal penalty, without relying on the seven-factor Mendoza-Martinez test … using the following rationale:
Congress’ judgment that a convicted felon, even one whose conviction was allegedly uncounseled, is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational. Enforcement of that essentially civil disability through a criminal sanction does not support guilt or enhance punishment, on the basis of a conviction that is unreliable when one considers Congress’ broad purpose.
[Lewis v. United States, 445 U.S. 55,] 67 [(1980)] (emphasis added) (internal quotations omitted).14 More recently, the Ninth Circuit found that the holding in Lewis applies with equal force to 18 U.S.C. § 922(g)(9), finding that it too is a “civil disability.” United States v. First, 731 F.3d 998, 1008–09 (9th Cir. 2013), cert. denied, 135 S. Ct. 50 (2014). And like Lewis, the Ninth Circuit in First did not resort to the Mendoza-Martinez test to reach this outcome.
[Footnote 14:] The Lewis majority then referred to § 1202(a)(1) as “a civil firearms disability,” and even noted in dicta that its reasoning should apply to 18 U.S.C. § 922 as well. See Lewis, 445 U.S. at 63–64, 67.
I therefore believe that applying the Mendoza-Martinez test to this Apprendi-based constitutional challenge injects unnecessary ambiguity into the court’s decision-making process at sentencing. Criminal conviction in Indiana carries with it a number of “collateral consequences” not directly related to the criminal sentence, … [and] this Court should endeavor to keep that Pandora’s Box closed,15 and continue to entrust our trial courts to operate with appropriate discretion at sentencing in ordering such “collateral consequences” be applied.
[Footnote 15:] We first adopted the federal intent-effects test in Wallace v. State … [and] Jensen v. State, [which] * * * have invited an endless string of appeals from sex offenders who want to avoid telling their neighbors that they live next door, with varying results. [Citations omitted.] … Parsing through these seven factors has proven to effectively grant us near total discretion to follow our gut instinct as to whether a restriction “feels” like punishment.
… I would prefer … that we not get tangled in the same briar patch when reviewing a host of other consequences collateral to conviction.
For the foregoing reasons, I concur in today’s result, affirming the trial court’s “crime of domestic violence” determination under Indiana Code section 35-38-1-7.7.
Dickson, J., joins.