The trial court imposed a sentence of life without the possibility of parole on Defendant after the jury was unable to reach a unanimous decision regarding a sentencing recommendation. The Sixth Amendment to the United States Constitution prohibits a judge from imposing a sentence of life without parole in such circumstances unless the jury has determined that each qualifying aggravating circumstance has been proven beyond a reasonable doubt. Bostick v. State, 773 N.E.2d 266, 273 (Ind. 2002) (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).
Defendant contends that the jury did not make the requisite determination that the sole charged aggravating circumstance, intentionally killing while committing or attempting to commit rape, had been proven beyond a reasonable doubt. The State responds that the jury’s findings were adequate for this purpose.
The record contains no specific written finding that the jury concluded beyond a reasonable doubt that Defendant intentionally killed Braunecker while committing or attempting to commit rape. Defendant bolsters his argument by pointing to language in the Indiana sentencing statute, Indiana Code section 35-50-2-9(d), that he says requires such findings to be in writing on a special verdict form:
The court shall instruct the jury that, in order for the jury to recommend to the court that . . . life imprisonment without parole should be imposed, the jury must find at least one (1) aggravating circumstance beyond a reasonable doubt as described in subsection (k) and shall provide a special verdict form for each aggravating circumstance alleged.
The State responds that the jury determined that the State had proved the charged aggravating circumstance outweighed the mitigating circumstances on a “special verdict form.” This determination, the State maintains, was sufficient to demonstrate that the jury had found an aggravating circumstance beyond a reasonable doubt.
We have decided a number of cases where the jury unanimously recommended a sentence of life without parole (or death) without making an explicit finding that the State had proved a charged aggravating circumstance beyond a reasonable doubt. In such cases, we have held that a jury’s guilt phase verdict established the existence of the requisite aggravating circumstances to meet the requirements of the Sixth Amendment enunciated in Apprendi. See, e.g., Clark v. State, 808 N.E.2d 1183, 1196 (Ind. 2004); Williams v. State, 793 N.E.2d 1019, 1028 (Ind. 2003); Brown v. State, 783 N.E.2d 1121, 1126 (Ind. 2003). But our decisions never turned on the argument the State makes here.
. . . [T]he jury in this case was unable to reach a unanimous recommendation on the life sentence, and the jury’s guilt phase verdicts do not necessarily establish that the aggravating circumstance was proved beyond a reasonable doubt. The jury found Defendant guilty of (1) knowing or intentional murder and (2) felony murder where rape or attempted rape was the predicate felony. The charging statement employed the disjunctive “or” – knowingly “or” intentionally – killed another human being. The jury could have rendered these guilty verdicts without finding that Defendant intentionally killed Braunecker while committing or attempting to commit rape. Thus, the guilt phase verdicts in this case do not establish the charged aggravating circumstance of an intentional killing while committing or attempting to commit rape.
The jury found that the State had proved the charged aggravating circumstance outweighed the mitigating circumstances. We acknowledge that it would be permissible to infer that the jury unanimously found the existence of the charged aggravating circumstance from this finding. We are unable, however, to infer that the jury found beyond a reasonable doubt that the State had proved the aggravating circumstance. The most plausible inference may well be that the jury did not unanimously find beyond a reasonable doubt that the State had proven that Defendant intentionally killed Braunecker while committing or attempting to commit rape. After all, the jury had been correctly instructed that if it did not unanimously find beyond a reasonable doubt that Defendant intentionally killed Braunecker while committing or attempting to commit rape, it must recommend against the life without parole sentence. The jury did not recommend a sentence of either life without parole or a term of years.
. . . .
Defendant’s sentence to life without parole pursuant to Indiana Code section 35-50-2-9 was based on facts extending the sentence beyond the maximum authorized by the jury’s verdict finding him guilty of murder. [Footnote omitted.] The Sixth Amendment required the jury to find those facts to exist beyond a reasonable doubt. Ring v. Arizona, 536 U.S. 584, 609 (2002); Apprendi, 530 U.S. at 490. For the reasons set forth above, we conclude that the jury made no such finding. Nor did the jury’s verdicts in the guilt phase necessarily establish that the jury found the aggravating circumstance beyond a reasonable doubt.
When a jury is unable to reach a unanimous decision as to the existence of an aggravating circumstance and the Sixth Amendment prohibits the trial judge from imposing a sentence of life without possibility of parole under subsection 9(f)6 of the sentencing statute, a new penalty phase trial is required. State v. Barker, 809 N.E.2d 312, 316 (Ind. 2004) (citing Bostick, 773 N.E.2d at 273-74). We vacate the trial court’s sentence of life without parole and remand for resentencing. If the State elects to dismiss its request for a life sentence, the trial court may resentence the defendant to a term of years as authorized by Indiana Code section 35-50-2-3(a). Otherwise, the trial court shall convene a new penalty phase jury and conduct further proceedings pursuant to Indiana Code section 35-50-2-9.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.