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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.