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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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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