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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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