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. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  2. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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  4. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

  5. What form or who do I talk to about a d felony which I hear is classified as a 6 now? Who do I talk to. About to get my degree and I need this to go away it's been over 7 years if that helps.

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