Gutermuth v. State, 10S01-0404-PC-190.
| Decision Date | 09 November 2004 |
| Docket Number | No. 10S01-0404-PC-190.,10S01-0404-PC-190. |
| Citation | 817 N.E.2d 233 |
| Parties | Warren GUTERMUTH, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below). |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender of Indiana, Gregory J. Garvey, Deputy Public Defender, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Matthew D. Fisher, Deputy Attorney General, Indianapolis, IN, Attorney for Appellee.
ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 10A01-0306-PC-218
In January, 1997, Warren Gutermuth pled guilty in accordance with a plea agreement to three counts of Class C felony child molestation in an "open plea," i.e., with sentencing left to the trial court's discretion. The trial court sentenced Gutermuth to three consecutive eight-year sentences, with four years of the third sentence suspended.
Gutermuth did not file a direct appeal. He did file a pro se petition for post-conviction relief in July, 2000. He amended the petition in December, 2002. In the petition for post-conviction relief, Gutermuth challenged the trial court's consideration of various aggravating and mitigating factors in determining his sentence.
In April, 2003, the post-conviction court denied Gutermuth's petition, finding that the trial court properly considered the aggravating and mitigating factors involved. The Court of Appeals affirmed the post-conviction court's denial of Gutermuth's post-conviction relief petition on its merits but rejected the State's argument that his sentence challenge was waived due to procedural default. Gutermuth v. State, 800 N.E.2d 592, 598 (Ind.Ct.App.2003). The State seeks transfer, challenging this latter determination.
On the same day Gutermuth was decided, the Court of Appeals also decided Collins v. State, 800 N.E.2d 609 (Ind.Ct.App. 2003), a case that raised the identical issue, namely, whether an individual who pleads guilty to an offense in an "open plea" is entitled to challenge the sentence imposed by means of a petition of post-conviction relief. We decide Collins in a separate opinion today. Collins v. State, No. 49S05-0404-PC-189, ___ N.E.2d ___, 2004 WL 2524882 (Ind. Nov. 9, 2004). Following Taylor v. State, 780 N.E.2d 430 (Ind.Ct.App.2003), trans. denied, 804 N.E.2d 760 (Ind.2003), we hold in Collins that such claims must be raised on direct appeal if at all. We also point out that Ind. Post-Conviction Rule 2 may be available for this purpose.
In all relevant respects, Gutermuth's situation is the same as that of the petitioner in Collins. Accordingly, we hold that the post-conviction court should have dismissed the petition for...
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Gutermuth v. State
...in an `open plea' is entitled to challenge the sentence imposed by means of a petition for post-conviction relief." Gutermuth v. State, 817 N.E.2d 233, 234 (Ind.2004) (quoting Collins, 817 N.E.2d at 231). Based on its decision in Collins, the court held that "the post-conviction court shoul......
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Gutermuth v. State
...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 de......
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...which the trial court exercised sentencing discretion. See, e.g., Kling v. State, 837 N.E.2d 502, 506 (Ind. 2005); Gutermuth v. State, 817 N.E.2d 233, 234 (Ind.2004); Tumulty v. State, 666 N.E.2d 394, 396 (Ind.1996). Instead, any challenge to a conviction imposed as a result of guilty plea ......
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