Gutermuth v. State

• Decision Date: 20 June 2007
• Docket Number: No. 10S01-0608-CR-306.,10S01-0608-CR-306.
• Citation: 868 N.E.2d 427
• Parties: Warren GUTERMUTH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

868 N.E.2d 427

Warren GUTERMUTH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 10S01-0608-CR-306.

Supreme Court of Indiana.

June 20, 2007.

Jeffrey D. Stonebraker, Chief Public Defender, Jeffersonville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Scott L. Barnhart, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 10A01-0509-CR-410

BOEHM, Justice.

Post-Conviction Rule 2 permits belated appeals of criminal convictions and sentences under some circumstances. We hold that this belated appeal of a sentence entered before a new constitutional rule of criminal procedure was announced is not governed by the new rule. Specifically, belated appeals of sentences entered before Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) are not subject to the holding in that case.

Factual and Procedural Background

On January 7, 1997, Warren Charles Gutermuth pleaded guilty to three counts of class C felony child molesting. The plea was an "open" one, leaving the parties free to argue the length of Gutermuth's sentence. Before accepting the plea, the trial court advised Gutermuth that he would give up the right to appeal his conviction, but Gutermuth was not told that he had a right to appeal his sentence. At the time, the presumptive sentence for a class C felony was four years. No more than four years could be added for aggravating circumstances, and no more than two years subtracted for mitigating circumstances. Ind.Code § 35-50-2-6(a) (1992). At the sentencing hearing on February 21, 1997, the trial court found six aggravating factors: the defendant was in need of correctional rehabilitative treatment that could best be provided by commitment to a penal facility; the imposition of a reduced or suspended sentence would depreciate the seriousness of the offense; there were three separate victims; the defendant was likely to re-offend; the defendant was in a position of trust with respect to the victims; and the defendant lacked remorse. After finding two mitigating factors, the defendant's lack of criminal history and his age of eighty-two years, the trial court sentenced Gutermuth to three consecutive maximum eight-year sentences, with four of the twenty-four years suspended.

Gutermuth did not file a timely appeal.¹ Post-Conviction Rule 2 gives a trial court the power to permit a criminal defendant who did not meet the time requirements for noticing and perfecting an appeal to pursue a "belated" appeal.² The trial court is to permit a belated appeal only if it concludes that the failure was not "due to the fault of the defendant" and the defendant was "diligent" in requesting to file permission to file a belated notice of appeal. In the ensuing three years, Gutermuth also failed to avail himself of that remedy.

On July 20, 2000, Gutermuth filed a pro se petition for post-conviction relief under Indiana Post-Conviction Rule 1. He alleged that he had received ineffective assistance of counsel; his guilty plea was not knowing, intelligent, and voluntary; and there was no factual basis for the plea. He raised no challenge to his sentence. A public defender was appointed to assist him, and on December 5, 2002, an amended petition for post-conviction relief was filed. In the amended petition, Gutermuth for the first time raised a sentencing issue. Specifically, he argued that the trial court had considered improper aggravators, erred in its weighing of aggravators against mitigators, and failed to give adequate weight to the mitigating factors. He also contended his sentence was "manifestly unreasonable," which was the standard for appellate review of sentences at that time. On April 22, 2003, the trial court denied relief.

Gutermuth appealed the denial of post-conviction relief, and the Court of Appeals held that Gutermuth's failure to file a direct appeal challenging his sentence did not waive review of his sentence in post-conviction relief proceedings because the trial court had not advised him of the right to appeal his sentence. Gutermuth v. State, 800 N.E.2d 592, 596-97 (Ind.Ct.App. 2003). The Court of Appeals evaluated the merits of Gutermuth's sentencing claims and found no error. It therefore affirmed the trial court's denial of post-conviction relief. Id. at 599. We granted transfer and held that an appeal, not post-conviction relief, is the proper means of raising sentencing errors. We reversed the denial of post-conviction relief and ordered Gutermuth's petition for post-conviction relief to be dismissed without prejudice to any right Gutermuth had to file a belated notice of appeal under Post-Conviction Rule 2. Gutermuth v. State, 817 N.E.2d 233, 234-35 (Ind.2004); see also Collins v. State, 817 N.E.2d 230 (Ind.2004).

On June 24, 2004, while Gutermuth was in the process of appealing the denial of post-conviction relief, the Supreme Court of the United States decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). On March 29, 2005, Gutermuth filed a petition for permission to file a belated appeal, which the trial court granted. Gutermuth then appealed to the Court of Appeals, arguing that his sentence was invalid under Blakely. The Court of Appeals affirmed the trial court's sentence. Gutermuth v. State, 848 N.E.2d 716 (Ind.Ct.App.2006). We granted transfer to consider whether Blakely applies in belated appeals pursued under Post-Conviction Rule 2. Gutermuth v. State, 860 N.E.2d 588 (Ind.2006).³

Retroactive Application of Blakely v. Washington

Blakely generated issues under the sentencing laws of many states, including Indiana. Blakely had been given an "exceptional" sentence in a Washington state court based on the trial judge's determination that he had acted with "deliberate cruelty." Under Washington law this was a ground for an upward departure from the "standard range" of sentencing. Blakely, 542 U.S. at 298, 124 S.Ct. 2531. A majority of the Supreme Court held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) applied equally to sentencing. To comply with the Sixth Amendment, juries, not judges, must find beyond a reasonable doubt "any fact that increases the penalty for a crime beyond the prescribed statutory maximum." Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348). For purposes of Apprendi, the "statutory maximum" is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis omitted). Under Blakely a trial court may not enhance a sentence based on additional facts, unless those facts are either (1) a prior conviction; (2) facts found by a jury beyond a reasonable doubt; (3) facts admitted by the defendant; or (4) facts found by the sentencing judge after the defendant has waived Apprendi rights and consented to judicial factfinding. See Trusley v. State, 829 N.E.2d 923, 925 (Ind.2005) (citing Blakely, 542 U.S. at 310, 124 S.Ct. 2531).

Before 2005, Indiana's sentencing laws established a "presumptive" sentence and a "range" for each class of felony and misdemeanor. A sentence could be enhanced or reduced from the presumptive sentence based on aggravating or mitigating circumstances found by the trial judge. In Smylie v. State, 823 N.E.2d 679 (Ind. 2005),⁴ we held that this pre-2005 sentencing scheme violated the Sixth Amendment as explained in Blakely because it provided for an enhanced sentence based on facts neither found by a jury nor admitted by the defendant. Smylie also addressed the question of Blakely's applicability to pre-Blakely sentences. We first noted the well-established rule from Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987): "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final." We then noted that because Blakely reshaped courts' understanding of the term "statutory maximum" it went beyond Apprendi and constituted a new rule for purposes of retroactivity. Smylie, 823 N.E.2d at 687. Accordingly, we held, following Griffith, that "as a new rule of constitutional procedure, we will apply Blakely retroactively to all cases on direct review at the time Blakely was announced." Id. at 690-91. As a matter of grace, we held that "a defendant need not have objected at trial in order to raise a Blakely claim on appeal inasmuch as not raising a Blakely claim before its issuance would fall within the range of effective lawyering." Id. at 691. Finally, we warned that "defendants who did not appeal their sentence at all will have forfeited any Blakely claim." Id. Because Smylie was itself a direct appeal and neither a belated appeal nor post-conviction review, there was no reason to explain the precise meaning of "direct review" or consider whether an unappealed sentence is "not yet final" by reason of the potential availability of a belated appeal.

Gutermuth has now filed this belated appeal, contending his sentence was invalid based on aggravating circumstances found in violation of Blakely. He contends that Smylie dictated that Blakely would apply to cases on "direct review" at the time Blakely was announced and that his case falls into that category. Gutermuth thus argues that Blakely is retroactive to his belated appeal and compels a reversal of his sentence. The Court of Appeals rejected this argument, finding that Blakely was decided well before Gutermuth filed his belated appeal, so his case was not on "direct review at the time Blakely was announced." Gutermuth, 848 N.E.2d at 726 (quoting Smylie, 823 N.E.2d at 690-91). The Court of Appeals nevertheless determined that Blakely applied to Gutermuth's sentence because his sentence was...