Tavitas, J.
Jennifer Holmgren appeals her sentence as a result of her convictions for child molesting, a Level 1 felony; child molesting, a Level 4 felony; and inappropriate communication with a child, a Class A misdemeanor. Holmgren argues that her classification as a credit-restricted felon and her sentence under Indiana Code Section 35-50-2-4(c) violated her rights under the Sixth Amendment to the United States Constitution. Concluding that the trial court did not err by classifying Holmgren as a credit-restricted felon but that the trial court erred by sentencing Holmgren for Count II under Indiana Code Section 35-50-2-4(c), we affirm in part, reverse in part, and remand for resentencing.
…
Holmgren also argues that her Sixth Amendment rights were violated when she was sentenced for Count II pursuant to Indiana Code Section 35-50-2-4(c) based upon a fact not found by the jury—that the victim was under the age of twelve. Holmgren’s argument that her sentence under Indiana Code Section 35-50-2-4(c) violates the Sixth Amendment argument is a matter of first impression.
In Apprendi, the United States Supreme Court held that a criminal defendant is entitled to “‘a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’” Apprendi, 530 U.S. at 477, 120 S. Ct. at 2356 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310 (1995)). A State cannot circumvent these protections “merely by ‘redefin[ing] the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.’” Id. at 485, 120 S. Ct. at 2360 (quoting Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S. Ct. 1881, 1889 (1975)).
…
Here, Holmgren was charged in Count II with child molesting, a Level 1 felony, pursuant to Indiana Code Section 35-42-4-3(a), which provides: “A person who, with a child under fourteen (14) years of age, knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) commits child molesting . . . .” (emphasis added). The offense is a Level 1 felony if “it is committed by a person at least twenty-one (21) years of age.” I.C. § 35-42-4-3(a)(1).
The charging information for Count II provided: “Between January 1, 2015 through and including November 1, 2019, [Holmgren], a person of at least twenty-one (21) years of age, . . . did perform or submit to sexual intercourse . . . with Victim 1, a child under the age of fourteen years (14)[.]” Appellant’s App. Vol. II p. 21 (emphasis added). Additionally, the jury instructions and closing arguments to the jury addressed the requirement that B.E. be under the age of fourteen. See id. at 181, 182, 192, 196, (jury instructions); Tr. Vol. II p. 39 (closing arguments). The jury was not instructed to make a finding that the child was under the age of twelve.
..
Thus, a defendant convicted of Level 1 felony child molesting where the defendant is at least twenty-one years of age and the victim is less than twelve may be sentenced according to a longer sentencing range in subsection 4(c). This sentencing statute appears to be an anomaly in this State’s sentencing scheme because it provides different sentencing ranges for the same level of offense based upon certain facts. The statute, however, does not explain how those facts are to be determined or the required standard of proof.
The State presented evidence at trial of incidents of sexual intercourse occurring both before and after B.E. turned twelve. The State, however, specifically identified the elements of the offense by the language in the charging information. It chose to allege the victim’s age as “under fourteen” and not “under twelve” in the charging information. Although Count II alleged that Holmgren had sexual intercourse with B.E. between January 1, 2015, and November 1, 2019, while B.E. was less than fourteen years old, the trial court determined at the sentencing hearing that there was some evidence B.E. was less than twelve years old at the time of the molestation and sentenced Holmgren pursuant to the harsher sentencing range of Indiana Code Section 3550-2-4(c).
The jury unanimously determined the victim was under the age of fourteen. The jury, however, was not asked to determine whether the victim was under the age of twelve. We have no way of knowing whether the jury found unanimously that the victim was under the age of twelve. The determination that B.E. was under the age of twelve at the time of the molestation was based solely upon the trial court’s finding at sentencing.
We conclude that Holmgren’s Sixth Amendment rights as described in Apprendi were violated by the procedure utilized here. The trial court’s finding that the victim is less than twelve years old “expose[d] the defendant to a greater punishment than that authorized by the jury’s guilty verdict.” Apprendi, 530 U.S. at 494, 120 S. Ct. at 2365. Apprendi held that “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.” Id. at 490, 120 S. Ct. at 2362-63. Here, the trial court determined that the victim was under the age of twelve, which increased the possible penalty beyond the typical statutory maximum found in Indiana Code Section 35-50-2-4(b). 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.
…
Holmgren’s classification as a credit-restricted felon did not violate her Sixth Amendment rights. Holmgren’s sentencing under Indiana Code Section 35-502-4(c) for Count II, however, violated her Sixth Amendment rights as discussed in Apprendi. Accordingly, we affirm in part, reverse in part, and remand for resentencing of Count II.
Affirmed in part, reversed in part, and remanded for resentencing.
Riley, J., and May, J., concur.