Boyle v. State, No. 49A04-0507-CR-369.

Docket NºNo. 49A04-0507-CR-369.
Citation851 N.E.2d 996
Case DateJuly 31, 2006
CourtCourt of Appeals of Indiana
851 N.E.2d 996
David BOYLE, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 49A04-0507-CR-369.
Court of Appeals of Indiana.
July 31, 2006.

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Christina Rose Klineman, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.


Case Summary

David Boyle appeals the sentence he received after pleading guilty to burglary, criminal deviate conduct, and attempted rape, all class A felonies. We reverse and remand for resentencing.

Issues

Boyle presents one issue: whether the "court erroneously considered factors which should have been specifically plead, tried to a jury, and proved beyond a reasonable doubt in light of" Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Smylie v. State, 823 N.E.2d 679 (Ind.2005), cert. denied, and which resulted in an inappropriate sentence. Appellant's Br. at 1.

The State does not address the propriety of the aggravating factors under Blakely, but instead asserts waiver and raises the following issue on cross-appeal: whether the trial court abused its discretion by granting Boyle's motion for permission to file a belated direct appeal.

Facts and Procedural History

According to the factual basis for Boyle's plea agreement,

On November 28, 1992, at approximately 4:26 hours — or 4:26 a.m., [L.F.] reported that she had been made to perform oral sex on a male who gained unlawful entry at her residence at 4 — 5040 Mindy Drive in Lawrence, Marion County, Indiana. [L.F.] was at home and had gone to bed and fallen asleep with the television and bedroom lamp on. A short time later, she woke up and turned off both the television and the lamp. She was awakened by a male in her bedroom rubbing her hair, who placed a knife in her mouth. The suspect was wearing a stocking wrapped around his face and beard. The suspect's eyes were the only thing she could clearly see. The suspect told her she was going to perform oral sex on him, and if she cooperated, she would not get hurt. [L.F.] was forced to lay on her stomach on the bed and told to put her hands behind her back. The suspect then bound [L.F.'s] hands with a leather shoestring. [L.F.] was then grabbed by the hair, pulled upward and toward the edge of the bed. At that time, the suspect, while holding a knife against her throat, sodomized [L.F.] by placing his penis in her mouth. The suspect then told her he was dissatisfied with her performance, rolled her over and spread her legs. He stated he was going to have intercourse with her. At this point, [L.F.] managed to get her left hand loose, pushed him off and grabbed the knife blade with her hands, causing various lacerations to her fingers and palms of her hands. She struggled by fighting, kicking, biting and screaming with him. He left once he was able to get his shoe from her. Lawrence Police Department was then summoned to 4050 Mindy Drive by a plea for help by [L.F.]. En route to the address, Officer Donald Lytle, of the Lawrence Police Department, observed a vehicle eastbound on East 52nd Street that had left the entrance of the mobile home park where the residence of [L.F.] was located.

Page 1000

Officer Lytle pursued the vehicle in — and stopped it in the area of 42nd and German Church Road. He then observed blood on the driver's hands, as well as on his clothing. There was physical evidence in the vehicle that matched the information Lytle had received from the victim. Upon bringing the suspect — at that point, [L.F.] was brought to the scene, where she identified the person who — whose identity had learned to be [Boyle] as the person who was in her house and had performed on — who had forced her to perform oral sex on him and attempted to rape her. At the Lawrence Police Department, Officer Lytle observed a scratch on the suspect's left leg matching the description given by the victim. The vehicle — during the investigation, Officer Robert Jones learned that forced entry had been made to [L.F.'s] home through a south side living room window which had been forced open and steps from a rear door had been placed at the bottom of that window for easier access. It was later learned through the course of the investigation that [Boyle's] fingerprints were found on a light bulb next to the lamp from [L.F.'s] — in [L.F.'s] bedroom and that there were — that a knife matching a knife owned by LeAnn Boyle — matching a set of knives owned by LeAnn Boyle was a match, who is — who was, at that time, the wife of [Boyle]. [L.F.] stated that she had met [Boyle] at the bar Southern Lights earlier that evening. He did not enter the residence with her at that time, but had dropped her off earlier that evening.

Tr. at 25-28.

Within days, the State charged Boyle with class A felony burglary, class A felony criminal deviate conduct, class A felony attempted rape, class B felony criminal confinement, and class C felony battery. At a January 23, 1995 change of plea hearing,1 Boyle requested leave to plead guilty to the three class A felonies pursuant to a plea agreement. App. at 18, 99. According to the case chronology entry for that date, "[Boyle was] advised of rights and potential penalties. Factual basis submitted. [Boyle] agrees and Court finds that factual basis exists for plea. Court finds [Boyle] understands rights and knowingly and voluntarily waives rights. Plea accepted." Id. at 18-19. As per the plea agreement, the State dismissed the charges of class B felony criminal confinement and class C felony battery. Id. at 99. The plea agreement further provided: "the court is free to determine the sentence but the original executed sentence shall be no more than thirty-five (35) years." Id. at 100. The court entered judgment of conviction, ordered a presentence investigation report, and set the cause for sentencing. Id. at 18-19.

At the March 3, 1995 sentencing hearing, which was attended by Boyle and his counsel, the judge set out the sentence and rationale as follows:

That [Boyle] is 37 years of age and does have minimal prior exposure to the justice system in this state can be considered a mitigating circumstance. I don't know whether a substance abuse, including alcohol, problem — I don't know whether that's mitigating or not. But at least the prior record I will consider mitigating.

That — I don't find that at the time of the offense the return to [L.F.'s] residence — I just don't find that intoxication, regardless of body odor, because

Page 1001

I don't think the two go together — because of the planning that was involved, which is aggravating. He knew where she lived, because he had dropped her off there. And when he showed up again, he had at least taken the trouble to learn where she lived.

I think we had an unscrewed light bulb outside. Got panty hose, mask on, changed shirt. [L.F.] knew what kind of a shirt the man who took her home had on, so this man has on a different shirt. All that shows planning.

Words not in the statute anymore for any crime, but we used to call that "premeditation." This wasn't a sudden thing. This was a planned thing, and obviously, that's — that is aggravating.

And, of course, we do have the tying of the hands. I can't remember. I thought I had notes on the hands being tied — concerning what was used to tie the hands. I'm basically going back to the suppression hearing, and I can't find it.

The use of the knife is sufficient to get to the — get to the A. And the injuries didn't have to follow. The beating, the concussion, the broken teeth didn't have to happen. And the fact that they did happen, that is aggravating.

I find, therefore, that the aggravating circumstances outweigh the mitigating circumstances.

The sentence as to each count is exactly the same, that is: 45 years on each count, 35 years executed, 10 suspended, 3 probation. Because of the minimum charges for the three Class A Felonies, can't be suspended below the minimum. The sentences have to run concurrently, as I — as I see it.

I'll recommend to the Indiana Department of Correction, [Boyle], that you receive substance abuse treatment and sex offender treatment. While you're on that three years' probation, must continue with any substance abuse treatment and sex offender treatment that is indicated. You must undergo random urinalysis.

Costs are $113. . . . .

The anguish that you've created that night, [Boyle], is very disturbing to not only [L.F.], but it's disturbing to anybody that hears [L.F.] talk about it, which I've done now twice, today and, of course, on the 19th, when we did the suppression hearing.

There's no excuse for the black eyes, the concussion, the bruises, the broken teeth. And the main aggravating circumstance, even more than that is, that the planning, the premeditation that went in.

Tr. at 60-62; App. at 20.

On August 13, 1997, Boyle filed a pro se petition for post-conviction relief. App. at 128-32. On December 10, 2003, Boyle filed an amended pro se petition for post-conviction relief. Id. at 26, 180-204. The following day, the court set a date for the "matter for PCR hearing." Id. at 26. On December 23, 2003, the State filed its response. Id. at 26, 205-06. On March 15, 2004, Boyle filed a petition requesting pauper counsel. Id. at 27. The next day, the court issued an order appointing the State Public Defender. Id. On March 31, 2004, the State Public Defender entered an appearance.

On June 24, 2004, the United States Supreme Court decided Blakely, which held that facts supporting an enhanced sentence must be admitted by the defendant or found by a jury. On November 9, 2004, our supreme court issued Collins v. State, 817 N.E.2d 230, 233 (Ind.2004), in which it held that the "proper procedure for an individual who has pled guilty in an open plea to challenge the sentence imposed

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7 practice notes
  • Baysinger v. State, No. 01A02-0512-CR-1178.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 13, 2006
    ...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 ye......
  • 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
    ...final when Blakely was decided. See Gutermuth v. State, 848 N.E.2d 716, 728-730 (Ind. Ct. App. 2006), trans. granted;12 Boyle v. State, 851 N.E.2d 996, 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, 85......
  • Allen v. State, No. 41S05-0609-CR-477.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 1, 2007
    ...2. 817 N.E.2d at 233. An "open" plea is one in which the sentence to be imposed is left to the discretion of the court. Boyle v. State, 851 N.E.2d 996, 1008 n. 6 (Ind.Ct. App.2006). In applying the tenets of Collins, our supreme court has stated that in an open plea situation, the sentence ......
  • Atkins v. State, No. 92A03-0606-CR-247 (Ind. App. 12/21/2006), No. 92A03-0606-CR-247
    • United States
    • December 21, 2006
    ...Section 6's provision of "an absolute right to one appeal." However, Atkins did not raise this inconsistency. 4. See also Boyle v. State, 851 N.E.2d 996 (Ind. Ct. App. 2006), trans. 5. Our review of this issue is "limited by the fact that [Atkins] failed to include his presentence investiga......
  • Request a trial to view additional results
7 cases
  • Baysinger v. State, No. 01A02-0512-CR-1178.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 13, 2006
    ...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 ye......
  • 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
    ...final when Blakely was decided. See Gutermuth v. State, 848 N.E.2d 716, 728-730 (Ind. Ct. App. 2006), trans. granted;12 Boyle v. State, 851 N.E.2d 996, 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, 85......
  • Allen v. State, No. 41S05-0609-CR-477.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 1, 2007
    ...2. 817 N.E.2d at 233. An "open" plea is one in which the sentence to be imposed is left to the discretion of the court. Boyle v. State, 851 N.E.2d 996, 1008 n. 6 (Ind.Ct. App.2006). In applying the tenets of Collins, our supreme court has stated that in an open plea situation, the sentence ......
  • Atkins v. State, No. 92A03-0606-CR-247 (Ind. App. 12/21/2006), No. 92A03-0606-CR-247
    • United States
    • December 21, 2006
    ...Section 6's provision of "an absolute right to one appeal." However, Atkins did not raise this inconsistency. 4. See also Boyle v. State, 851 N.E.2d 996 (Ind. Ct. App. 2006), trans. 5. Our review of this issue is "limited by the fact that [Atkins] failed to include his presentence investiga......
  • Request a trial to view additional results

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