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Man ineligible to bring belated appeal

May 30, 2013

Because his guilty plea included a fixed sentence, a man who pleaded guilty to a drunken-driving charge is precluded from challenging his sentence by direct appeal, the Indiana Court of Appeals ruled. This also prevents him from challenging his sentence under Ind. Post-Conviction Rule 2.

Dean Eric Blanck, through a written plea agreement, pleaded guilty to Class D felony operating while intoxicated in exchange for two other charges being dropped. The agreement provided for a three-year sentence served on electronic monitoring and suspension of his driver’s license.

A year later, Blanck sought permission to file a belated notice of appeal and a petition for appointment of appellate counsel pursuant to PCR 2, which the court denied.

The Court of Appeals affirmed in Dean Eric Blanck v. State of Indiana, 47A01-1209-CR-424. Blanck argued that his plea agreement was open, which allows him to seek a belated direct appeal, but he misread his written plea agreement. It had two separate sections, with (A) for an open plea and (B) for a fixed plea. His plea agreement and the transcript of the plea hearing clearly show that his sentence did not result from an open plea, Senior Judge Carr Darden wrote. Thus, he is not allowed to challenge his sentence by direct appeal and is not “eligible” to seek permission for a belated appeal under PCR 2.

Because of this, the trial court also properly denied his petition to appoint appellate counsel for that purpose, the appellate court held.

 

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