Gutermuth v. State, No. 10A01-0509-CR-410.

Docket NºNo. 10A01-0509-CR-410.
Citation848 N.E.2d 716
Case DateJune 07, 2006
CourtCourt of Appeals of Indiana
848 N.E.2d 716
Warren GUTERMUTH, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 10A01-0509-CR-410.
Court of Appeals of Indiana.
June 7, 2006.

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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.

OPINION

CRONE, Judge.


Case Summary

In this belated appeal, Warren Gutermuth challenges his twenty-four-year aggregate sentence for three counts of class C felony child molesting. We affirm.

Issues

We restate the two issues Gutermuth presents as follows:

I. Whether he may challenge his sentence pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and

II. Whether the trial court properly sentenced him.

Facts and Procedural History

Between June and October 1995, Earl and Dorinda Riley and their three children lived with the eighty-one-year-old Gutermuth in his Jeffersonville home. One day, when Earl and Dorinda were out of the home, Gutermuth put his finger "inside the private[s]" of their seven-year-old twin daughters. Appellant's App. at 14-15 (probable cause affidavit). Gutermuth told the girls not to tell anyone and that they would get in trouble or he would get mad if they did. Id. at 15. On September 19 or 20, 1995, Gutermuth touched the penis of the Rileys' eight-year-old son over his clothing and told him not to tell anyone. Id.

The police conducted an investigation, and Gutermuth took a polygraph examination on March 5, 1996. Following the examination, which indicated deceptive responses, Gutermuth admitted to molesting all three children. Id. at 18. He stated that he did so because he suspected that someone else was molesting them, and he believed that if he touched them inappropriately, then they would tell him who else was touching them. Id. On March 15, 1996, the State charged Gutermuth with two counts of class B felony child molesting and three counts of class C felony child molesting. On June 17, 1996, the State amended the charging information to add twenty-one counts of class A misdemeanor child exploitation.

The matter was set for jury trial on January 7, 1997. On that date, before a jury was selected, Gutermuth agreed to plead guilty to three counts of class C felony child molesting, in exchange for the State's dismissal of the remaining charges, with sentencing left to the trial court's discretion (also known as an "open plea"). The court informed Gutermuth of the rights he would forfeit by pleading guilty,

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including "the right to appeal [his] conviction to the Indiana Supreme Court or the Indiana Court of Appeals, as the case might be." Tr. at 8. The court determined that Gutermuth's plea was voluntary and advised him of the possible sentencing range. In establishing a factual basis for the plea, the State incorporated by reference, without objection, the probable cause affidavit and two exhibits related to the polygraph examination. The court accepted Gutermuth's plea, entered judgment on the convictions, and set the matter for sentencing.

On February 18, 1997, Gutermuth filed a motion to strike the presentence investigation report and to exclude reference to prior arrests or uncharged acts. At the sentencing hearing on February 21, 1997, the trial court ruled on the motion1 and sentenced Gutermuth as follows:

The Court has reviewed all of the factors in this particular case, and I would emphasize that Indiana Code Section 35-38-1-7.1(a) says the Court shall mandatorily review certain factors, the risk that the Defendant will commit another crime. And this Court is of the belief based upon what I've heard and my review of this particular case that there is that particular risk. Number two, the nature and circumstances of the crime committed. I simply state for the record, I have considered the nature and circumstances of the crime committed as mandated. Number three, I have considered that Mr. Gutermuth has no prior criminal record. I have considered his character and I have considered his condition. Number four is not applicable to this particular case. That's the age of the children. That's a part of the [child molesting] statute itself. So that's not applicable. Number five isn't applicable. Number six, I have considered the oral statements reduced in paragraph form in the Pre-Sentence Investigation Report of the victim's parents in this particular case. I go through the aggravating circumstances in this particular case and I'm going to recognize the following as aggravating circumstances. Firstly, given the nature of these particular offenses, I do believe that the person, Mr. Gutermuth, is in need of correctional rehabilitative treatment that can best be provided by commitment to a penal facility. Number four, I do believe that an imposition of a reduced sentence or a suspended sentence or a suspension of a sentence and imposing probation would depreciate the seriousness of this particular offense. I recognize Mr. Gutermuth's age, and I'll address that later on. But at the same

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time this Court or any Court should send any message to any community, and especially this community, that we are going [sic] to tolerate or consider leniency in situations where there is admission and evidence of child molestation. Number five, again, in terms of aggravators, I'm not going to consider that. That is the age of the victims. And number six is inapplicable, the mental or physical infirmity of the victims. But what is applicable is the emotional condition of the children and I'll get to that also. Number seven doesn't apply. Number eight and number nine, I'm not going to announce those. They don't apply in this particular case. Then I'm going to look at, in terms of this statute, the Court may consider the following factors as mitigating factors. And as I go through these mitigating factors, one, the crime neither caused nor threatened serious harm to person. It did, in the Court's opinion, impose serious harm to persons, those being the children. That's not, that threat mitigating factor is not applicable. Number two, the crime was a result of circumstances unlikely to recur. And considering the nature, and I'm not, incidently [sic], I'm stating for the record that I'm not going to consider those photographs or the testimony of Mr. Riley as to what happened twenty-five years ago. That's too remote in time. I'm going, that's a given. That is too remote in time. I'm not going to consider that fact. But I am going to consider the fact that I've got three separate victims in this particular case. And under the circumstances I believe there is a likelihood or the crime could recur given the fact, given the evidence as presented and given the attitude of the Defendant. I'm going to get to that as another aggravating circumstance. The victim certainly didn't facilitate this particular offense, being children. So that doesn't apply. There's no substantial grounds tending to excuse or justify the crime. So that doesn't apply. Mr. Gutermuth is not acting under strong provocation. Number six, the person has no history of delinquency or criminal activity. That's somewhat applicable. Number seven, he's likely to respond affirmatively to probation or short-term imprisonment. That doesn't apply. Number eight, the character attitudes of Mr. Gutermuth indicate the person is unlikely to commit another crime. The reverse is true in this particular case. And number nine, restitution doesn't apply. Number ten, imprisonment of the person will result in undue hardship to the person. Of all those mitigating factors, perhaps two apply in this particular case. No prior criminal history as such. And that perhaps because of his age, but the age is only one particular factor. The other aggravating factors are the position of trust with the children. There was a definite position of trust with the children in here. And, if anything, we must develop positive attitudes in our children and positive trust in our children. And this is certainly one way of destroying that trust and destroying those positive attitudes in those children. And we know the history of these kinds of situations. Lord knows what these children are going to become as adults in view of what happened in this particular case. We certainly know with history what happens in other cases with other children who have been subject to abuse over the years under these kind of circumstances. I'm particularly finding as an aggravating circumstance a lack of remorse here. The attitude that Mr. Gutermuth had and the comments that he made to the Court's Probation Officer, which are represented in the Court's probation report, as well as

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what I'll find on that polygraph examination, as the officer of the Court [i.e., the prosecutor] related to me, his attitudes towards children and the idea of molestation. Again, there are three different children in this particular factor. So given all of that I can't help but determine that the aggravating circumstances in this particular case outweigh the mitigating circumstances. And it is with regret that I impose a sentence on an individual as old as Mr. Gutermuth is. But I'm not going to let age interfere with offenses of these particular natures. Because it's not the age of the person that commits the offense that has any bearing on the devastating effect of the children. The age of the person can be anywhere from fifteen to a hundred and fifteen as far as the Courts are concerned. If there's child molesting involved, then those children are going to suffer. And that's the situation in this particular case. Having found all of that, and the Defendant having entered a plea of guilty to Count II, Child Molesting as a Class C Felony, and the Court having previously entered judgment of...

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16 practice notes
  • Gutermuth v. State, No. 10S01-0608-CR-306.
    • United States
    • Indiana Supreme Court of Indiana
    • June 20, 2007
    ...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. ......
  • Roney v. State, No. 20A04-0703-CR-129.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 24, 2007
    ...before Gutermuth was decided, at which point it was not clear whether Blakely applied to cases such as his. Compare Gutermuth v. State, 848 N.E.2d 716 (Ind.Ct.App.2006), trans. granted, opinion vacated in relevant part, 868 N.E.2d 427 (holding that Blakely applies retroactively to those who......
  • Baysinger v. State, No. 01A02-0512-CR-1178.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 13, 2006
    ...by other recent decisions of this Court and consistent with the Meadows decision relied upon by the majority. See Gutermuth v. State, 848 N.E.2d 716, trans. granted; Sullivan v. State, 836 N.E.2d 1031 (Ind.Ct.App.2005). These cases hold that Blakely should apply to cases that, although not ......
  • Boyle v. State, No. 49A04-0507-CR-369.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 31, 2006
    ...that Blakely applies retroactively because [the defendant's] case was not yet final when Blakely was decided." Gutermuth v. State, 848 N.E.2d 716, 728, (Ind. Ct.App., 2006). Similarly, we conclude that in Boyle's case, "the availability of appeal via Post-Conviction Rule 2(1) had not yet be......
  • Request a trial to view additional results
16 cases
  • Gutermuth v. State, No. 10S01-0608-CR-306.
    • United States
    • Indiana Supreme Court of Indiana
    • June 20, 2007
    ...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. ......
  • Roney v. State, No. 20A04-0703-CR-129.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 24, 2007
    ...before Gutermuth was decided, at which point it was not clear whether Blakely applied to cases such as his. Compare Gutermuth v. State, 848 N.E.2d 716 (Ind.Ct.App.2006), trans. granted, opinion vacated in relevant part, 868 N.E.2d 427 (holding that Blakely applies retroactively to those who......
  • Baysinger v. State, No. 01A02-0512-CR-1178.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 13, 2006
    ...by other recent decisions of this Court and consistent with the Meadows decision relied upon by the majority. See Gutermuth v. State, 848 N.E.2d 716, trans. granted; Sullivan v. State, 836 N.E.2d 1031 (Ind.Ct.App.2005). These cases hold that Blakely should apply to cases that, although not ......
  • Boyle v. State, No. 49A04-0507-CR-369.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 31, 2006
    ...that Blakely applies retroactively because [the defendant's] case was not yet final when Blakely was decided." Gutermuth v. State, 848 N.E.2d 716, 728, (Ind. Ct.App., 2006). Similarly, we conclude that in Boyle's case, "the availability of appeal via Post-Conviction Rule 2(1) had not yet be......
  • Request a trial to view additional results

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