Baysinger v. State, No. 01A02-0512-CR-1178.

Docket NºNo. 01A02-0512-CR-1178.
Citation854 N.E.2d 1211
Case DateOctober 13, 2006
CourtCourt of Appeals of Indiana
854 N.E.2d 1211
Steven L. BAYSINGER, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 01A02-0512-CR-1178.
Court of Appeals of Indiana.
October 13, 2006.

Page 1212

John Pinnow, Special Assistant to State Public Defender, Greenwood, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Page 1213

OPINION

RILEY, Judge.


STATEMENT OF THE CASE

Appellant-Defendant, Steven L. Baysinger (Baysinger), appeals his sixty-five year sentence for murder, Ind.Code § 35-42-1-1(1).

We affirm.

ISSUES

Baysinger raises two issues on appeal, which we restate as follows:

(1) Whether Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh'g denied, applies retroactively to Baysinger's case, thereby calling into question the trial court's findings of certain aggravating circumstances; and

(2) Whether Baysinger was properly sentenced.

FACTS AND PROCEDURAL HISTORY

In the summer of 1996, Baysinger and Adam Ellis (Ellis) gave money to David Lee (Lee) so that he could purchase drugs for them. Lee did not deliver any drugs to the pair nor did he return the money. Consequently, Baysinger and Ellis conspired to dig a grave in the woods and to kill and bury Lee. On July 5, 1996, some time after Ellis had dug the grave, Baysinger picked up Lee and drove him to meet Ellis. After picking up Ellis, Baysinger drove the group to the woods. He then shot Lee three times in the head, killing him. Baysinger and Ellis burned Lee's clothes, placed his body in the makeshift grave, covered him with dirt, and left the scene.

In June 1999, almost three years after Baysinger and Ellis murdered Lee, Lee's body was found. Shortly thereafter, on June 23, 1999, Baysinger was charged with Count I, conspiracy to commit murder, I.C. §§ 35-42-1-1(1), 35-41-5-2, a class A felony, and Count II, murder, I.C. § 35-42-1-1(1). On January 23, 2001, Baysinger pled guilty to the murder charge in exchange for the dismissal of the conspiracy charge. His open plea agreement provided for an executed sentence not to exceed sixty-five years.

On March 19, 2001, the trial court conducted a sentencing hearing. It found the following aggravating circumstances: (1) Baysinger's prior criminal history; (2) the nature and circumstances of the crime; (3) lack of remorse; (4) need of correctional or rehabilitative treatment best provided by a penal facility; and (5) imposition of a reduced sentence would depreciate the seriousness of the crime.1 In addition, the trial court found two mitigating circumstances: (1) Baysinger's criminal history consisted of only one prior conviction, and (2) Baysinger pled guilty and confessed to the present offense. In accordance with the plea agreement, the trial court sentenced Baysinger to sixty-five years executed at the Indiana Department of Correction.

Baysinger did not file a direct appeal of the trial court's decision. However, on March 1, 2005, he filed a petition for permission to file a belated notice of appeal under Indiana Post-Conviction Rule 2. The trial court denied the petition, but subsequently on October 6, 2005, we reversed the trial court's order. See Baysinger v. State, 835 N.E.2d 223 (Ind.Ct.App.2005).

Page 1214

Then, on November 3, 2005, Baysinger filed this belated notice of appeal, and his case now comes before this court. Additional facts will be provided as necessary.

DISCUSSION AND DECISION
I. Retroactive Application of Blakely

Baysinger first argues that the trial court violated his Sixth Amendment right to have aggravating factors determined by a jury in violation of Blakely v. Washington. He insists that the language of Indiana Post-Conviction Rule 2(1) mandates retroactive application of Blakely under these facts. The Rule provides, in pertinent part, that where a court grants a defendant permission to file a belated notice of appeal that "notice of appeal shall be treated for all purposes as if filed within the prescribed period." Ind. Post-Conviction Rule 2(1). We agree.

We recently analyzed this issue in another belated appeal case and "conclude[d] that Blakely applies retroactively because [the defendant's] case was not yet final when Blakely was decided." Meadows v. State, 853 N.E.2d 1032, 1035 (Ind. Ct.App.2006) (quoting Boyle v. State, 851 N.E.2d 996, 1006 (Ind.Ct.App.2006)). Similarly, we conclude that in Baysinger's case, the availability of appeal via Post-Conviction Rule 2(1) had not yet been exhausted when Blakely was announced, and therefore Blakely must be given retroactive effect. Meadows, 853 N.E.2d at 1035. In reaching this conclusion, we echo the concerns voiced in Boyle, noting that the retroactive application of Blakely is likely to have a "highly detrimental effect on the administration of justice," and that it would wreak "havoc" on trial courts across the country. Id. Because of our Supreme Court's ruling in Blakely, many defendants will pursue a belated appeal and challenge their enhanced sentences "on the basis of a rule that was not the law when they were convicted [and] could not have been anticipated when they were sentenced." Id. Accordingly, we reaffirm that "[u]nless and until the U.S. Supreme Court revises or clarifies its rules on retroactivity, however, we are bound to consider the merits of belated Blakely appeals where appropriate." Id.

II. Sentencing

Baysinger next argues that the trial court abused its discretion when it enhanced his sentence. In particular, Baysinger claims the trial court first recognized invalid aggravators pursuant to Blakely and then pronounced a sentence that was inappropriate in light of his character. It is well established that sentencing decisions lie within the discretion of the trial court and will be reversed only for abuse of discretion. White v. State, 846 N.E.2d 1026, 1034 (Ind.Ct.App.2006), trans. denied. Furthermore, we have held that when considering the appropriateness of the sentence for the crime committed, courts should initially focus upon the presumptive penalties.2 Trial courts may then consider deviation from this presumptive sentence based upon a balancing of the factors, which must be considered pursuant to I.C. § 35-38-1-7.1(a), together with any discretionary aggravating and mitigating factors found to exist. Id. For a trial court to impose a sentence, other than the presumptive, it must (1) identify the significant aggravating factors and mitigating factors; (2) relate the specific facts and reasons that the court found to those aggravators and mitigators; and (3) demonstrate that the court has balanced

Page 1215

the aggravators with the mitigators. Id. A single aggravating factor is sufficient to support the imposition of an enhanced sentence. Id. Therefore, even if a trial court improperly applies aggravating circumstances, a sentence enhancement may be upheld where there are other valid aggravating circumstances. Id. In addition, Indiana Appellate Rule 7(B) gives us authority to review and revise sentences to ensure that they are proportionate in light of the nature of the offense and character of the offender.

A. Aggravating Factors

Baysinger relies on Blakely for support in alleging that the trial court relied on aggravating factors not pled and proven beyond a reasonable doubt to the jury. Our reading of the trial court's sentencing statement and sentencing order indicates that the trial court found five aggravators in this case: (1) Baysinger's prior criminal history; (2) the nature and circumstances of the crime; (3) lack of remorse; (4) the need of correctional or rehabilitative treatment best provided by a penal facility; and (5) the imposition of a reduced sentence would depreciate the seriousness of the crime. Baysinger does not contend that the trial court improperly found the nature and circumstances of his crime as an aggravator, so we need not address it further. In addition, the State concedes that the court improperly found that the imposition of a reduced sentence would depreciate the seriousness of the crime because there is no indication in the record that the trial court was considering the imposition of a mitigated sentence. See Ector v....

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7 practice notes
  • Gutermuth v. State, No. 10S01-0608-CR-306.
    • United States
    • Indiana Supreme Court of Indiana
    • June 20, 2007
    ..."final" if defendants have the opportunity to pursue belated appeals pursuant to Post-Conviction Rule 2. See, e.g., Baysinger v. State, 854 N.E.2d 1211, 1214 (Ind.Ct.App.2006); Meadows v. State, 853 N.E.2d 1032, 1035 (Ind.Ct.App.2006). We disagree. The quoted explanation of "final" from Gri......
  • Smithers v. State, No. 41A01-0512-CR-560 (Ind. App. 12/12/2006), No. 41A01-0512-CR-560.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 12, 2006
    ...1006 (Ind. Ct. App. 2006), transmitted on trans.; Meadows v. State, 853 N.E.2d 1032, 1035-1036 (Ind. Ct. App. 2006); Baysinger v. State, 854 N.E.2d 1211, 1214, (Ind. Ct. App. 2006), trans. pending. As noted above, these cases have had transfer granted, have been transmitted on transfer, or ......
  • Fulkrod v. State, No. 48A04-0508-PC-482.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 2, 2006
    ...in a belated appeal setting. We note, however, that this precise issue was recently addressed by this court in Baysinger v. State, 854 N.E.2d 1211 6. We note that there are two narrow exceptions to this rule, neither of which are applicable to the case before us. See Mohler, 694 N.E.2d at 1......
  • Ace Bail Bonds v. Government Payment Serv., No. 49A02-0710-CV-842.
    • United States
    • August 29, 2008
    ...On appeal, we affirmed the trial court's decision on the basis that "the original action was not terminated in GPS's favor." GPS, 854 N.E.2d at 1211. "The rule in Indiana is that a decision by a competent tribunal in favor of the person(s) who initiated the civil action complained of is con......
  • Request a trial to view additional results
7 cases
  • Gutermuth v. State, No. 10S01-0608-CR-306.
    • United States
    • Indiana Supreme Court of Indiana
    • June 20, 2007
    ..."final" if defendants have the opportunity to pursue belated appeals pursuant to Post-Conviction Rule 2. See, e.g., Baysinger v. State, 854 N.E.2d 1211, 1214 (Ind.Ct.App.2006); Meadows v. State, 853 N.E.2d 1032, 1035 (Ind.Ct.App.2006). We disagree. The quoted explanation of "final" from Gri......
  • Smithers v. State, No. 41A01-0512-CR-560 (Ind. App. 12/12/2006), No. 41A01-0512-CR-560.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 12, 2006
    ...1006 (Ind. Ct. App. 2006), transmitted on trans.; Meadows v. State, 853 N.E.2d 1032, 1035-1036 (Ind. Ct. App. 2006); Baysinger v. State, 854 N.E.2d 1211, 1214, (Ind. Ct. App. 2006), trans. pending. As noted above, these cases have had transfer granted, have been transmitted on transfer, or ......
  • Fulkrod v. State, No. 48A04-0508-PC-482.
    • United States
    • Indiana Court of Appeals of Indiana
    • November 2, 2006
    ...in a belated appeal setting. We note, however, that this precise issue was recently addressed by this court in Baysinger v. State, 854 N.E.2d 1211 6. We note that there are two narrow exceptions to this rule, neither of which are applicable to the case before us. See Mohler, 694 N.E.2d at 1......
  • Ace Bail Bonds v. Government Payment Serv., No. 49A02-0710-CV-842.
    • United States
    • August 29, 2008
    ...On appeal, we affirmed the trial court's decision on the basis that "the original action was not terminated in GPS's favor." GPS, 854 N.E.2d at 1211. "The rule in Indiana is that a decision by a competent tribunal in favor of the person(s) who initiated the civil action complained of is con......
  • Request a trial to view additional results

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