ILNews

Court: Blakely not retroactive for PCR 2 belated appeals

Michael W. Hoskins
January 1, 2007
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The Indiana Supreme Court today added fuel to the fiery question of how retroactive a landmark 2004 ruling is from the Supreme Court of the United States.

Justices unanimously agreed in four cases - three of which were combined into oral arguments in March - and decided that belated appeals of sentences entered before a new constitutional rule goes into effect are not governed by that new rule.

While Post Conviction Rule 2 permits belated appeals of criminal convictions and sentences under some circumstances, it doesn't under Blakely v. Washington, 542 U.S. 296 (2004).

All authored by Justice Theodore Boehm, the decisions came down in Warren Gutermuth v. State of Indiana, 10S01-0608-CR-306; David Boyle v. State of Indiana, 49S04-0706-CR-243; David L. Moshenek v. State of Indiana, 42S04-0706-PC-244; and Bryant T. Rogers v. State of Indiana, 71S03-0706-CR-242

The Rogers ruling was the only one not heard during the combined argument. Another related case, Curtis Medina v. State, was part of the combined arguments in March. It had not yet been decided at Indiana Lawyer deadline today.

In today's Gutermuth decision, Justice Boehm wrote, "A new rule that creates an opportunity for error that did not exist under prior law inevitably creates a class of incarcerated defendants who, if the new rule had been in place, would have a claim for appellate relief. Drawing the line at those who are in the normal direct appeal process is no less arbitrary than drawing it to exclude those whose convictions predated the new rule."

"But post-Blakely belated appeals are not passengers on later cars in the train; they are efforts to get on the train after it has left the station," he continued. "In sum, we conclude that Blakely is not retroactive for Post-Conviction Rule 2 belated appeals because such appeals are neither 'pending on direct review' nor 'not yet final'... ."

The Moshenek ruling holds that a trial court's ruling on a petition for permission to seek relief under PCR 2 should be affirmed unless it was based on error of law or a clearly erroneous factual determination. Moreover, the court holds that if a trial court doesn't 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 PCR 2 depending on other evidence.
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  1. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

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  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

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