Wednesday, June 20, 2007
Ind. Decisions - More today from the Supreme Court, including Blakely rulings
In Warren Gutermuth v. State of Indiana, a 10-page, 5-0 opinion, Justice Boehm writes:
Post-Conviction Rule 2 permits belated appeals of criminal convictions and sentences under some circumstances. We hold that this belated appeal of a sentence entered before a new constitutional rule of criminal procedure was announced is not governed by the new rule. Specifically, belated appeals of sentences entered before Blakely v. Washington, 542 U.S. 296 (2004) are not subject to the holding in that case.
In David L. Moshenek v. State of Indiana, an 8-page, 5-0 opinion, Justice Boehm writes:
We hold that a trial court’s ruling on a petition for permission to seek relief under Post-Conviction Rule 2 should be affirmed unless it was based on an error of law or a clearly errone-ous factual determination. Moreover, if the trial court did not advise a defendant of the right to appeal the sentence in an “open plea,” that may well suffice to meet the lack of fault requirement under Post-Conviction Rule 2 depending on other evidence, but the defendant must make some additional showing to establish diligence.
In David Boyle v. State of Indiana, a 4-page, 5-0 opinion, Justice Boehm concludes:
For the reasons explained in Gutermuth v. State, No. 10S01-0608-CR-306, ___ N.E.2d ___ (Ind. June 20, 2007), also decided today, Blakely does not apply to a Post-Conviction Rule 2 belated appeal challenging a pre-Blakely sentence. Accordingly, a Blakely claim was not available to Boyle in this appeal.In Bryant T. Rogers v. State of Indiana, a 2+ page, 5-0 opinion, Justice Boehm writes:
The Court of Appeals noted that Boyle asserted a claim that his sentence was inappropriate in light of his character and the nature of the offense under Indiana Appellate Rule 7(B). Boyle, 851 N.E.2d at 1008. Boyle’s brief cites the general rule that an appellate court has the constitutional authority to review and revise sentences if the sentence imposed is inappropriate in light of the character of the defendant and the nature of the offense. However, the brief does not set forth any reasons why we should conclude that Boyle’s character or the nature of his offense warrants the use of the power to review and revise his sentence. Accordingly, we affirm the trial court.
On March 27, 2002, Bryant T. Rogers pleaded guilty to one count of class A felony at-tempted robbery. The plea agreement set Rogers’s minimum sentence at twenty-five years, and the parties were permitted to argue the other terms of the sentence. The plea agreement stated, “the Defendant will be giving up . . . the right to appeal the conviction and sentence to the Indi-ana Court of Appeals and the Indiana Supreme Court.” Before accepting the plea, the trial court advised Rogers that he would give up the right to appeal his conviction, but Rogers was not told that he had a right to appeal his sentence. * * *Note: In keeping with the announcement at the end of this entry today: Three oral arguments in the first three cases were held March 22, 2007. Apparently there was no oral argument in the Rogers case.
For the reasons explained in Gutermuth v. State, No. 10S01-0608-CR-306, ___ N.E.2d ___ (Ind. June 20, 2007), also decided today, Blakely does not apply to a Post-Conviction Rule 2 belated appeal challenging a pre-Blakely sentence. Accordingly, Rogers’s Blakely claim presents no issue in this appeal. We summarily affirm the Court of Appeals as to the remaining issues. Ind. Appellate Rule 58(A).
Posted by Marcia Oddi on June 20, 2007 01:59 PM
Posted to Ind. Sup.Ct. Decisions