Hull v. State
| Decision Date | 30 December 2005 |
| Docket Number | No. 49A02-0504-CR-298.,49A02-0504-CR-298. |
| Citation | 839 N.E.2d 1250 |
| Parties | Richard HULL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Supreme Court |
Christina Rose Klineman, Indianapolis, for Appellant.
Steve Carter, Attorney General of Indiana, Maureen Ann Bartolo, Deputy Attorney General, Indianapolis, for Appellee.
Richard Hull appeals from his sentence after he pleaded guilty to two counts of Murder. He presents three issues for our review, which we restate as:
1. Whether Hull was denied due process because the sentence imposed upon resentencing after appeal was greater than that imposed at his original sentencing.
2. Whether the trial court violated Hull's Sixth Amendment right to have aggravating factors determined by a jury.
3. Whether his sentence is inappropriate in light of the nature of the offenses and his character.
The State raises one issue on cross-appeal, namely, whether the trial court abused its discretion when it allowed Hull's belated notice of appeal.
We affirm.
On October 25, 2000, the bodies of Andrew Cataldi and Tricia Nordman were found in a dumpster in Marion County. Both were killed by gunshot wounds. The State charged Hull and Sarah Pender with two counts of murder. Hull, Pender, and the victims had been roommates.
Hull pleaded guilty to both counts under a plea agreement. The agreement provided for a maximum sentence of ninety years executed. At the original sentencing hearing, Hull argued that Pender had been the shooter and testified regarding letters that she had allegedly written, accepting full responsibility for the murders. The trial court found two mitigators, namely, Hull's guilty plea and duress from Pender, and four aggravators, namely, Hull's prior criminal history, his prior probation revocation, the degree of planning of the murders, and the fact that two people were killed. The trial court sentenced Hull to sixty-five years on each count, with ten years of the second count to run consecutive to the first count, for a total executed sentence of seventy-five years. On appeal this court reversed and remanded for resentencing within the parameters of the plea agreement and the law. Hull v. State, 799 N.E.2d 1178 (Ind.Ct.App.2003) ("Hull I").
On May 4, 2004, Hull appeared for resentencing. The parties agreed to incorporate the evidence presented at the original sentencing hearing. The trial court found the same aggravators as it had at the original sentencing. But the court also found an additional aggravator, namely, Hull's perjured testimony, based on Hull's notarized affidavit that was attached to Pender's petition for post-conviction relief, in which affidavit Hull contradicted his testimony at the original sentencing hearing by stating that he was the actual shooter and that the letter from Pender used at his original sentencing was a forgery. The trial court identified as a mitigator Hull's acceptance of responsibility and his guilty plea and then sentenced him to sixty-five years with twenty years suspended on each count, to be served consecutively, for a total executed sentence of ninety years.
On February 25, 2005, Hull requested permission to file a belated notice of appeal. The State objected, and Hull filed a successive petition to file a belated notice of appeal. The trial court granted Hull's request, and this appeal ensued.
The State asserts that the trial court abused its discretion when it granted Hull permission to file a belated notice of appeal. Thus, the State argues that Hull's appeal should be dismissed for lack of jurisdiction. We disagree.
Indiana Post-Conviction Rule 2 permits a defendant to seek permission to file a belated notice of appeal. The rule provides in part:
Where an eligible defendant convicted after a trial or plea of guilty fails to file a timely notice of appeal, a petition for permission to file a belated notice of appeal for appeal of the conviction may be filed with the trial court, where:
(a) the failure to file a timely notice of appeal was not due to the fault of the defendant; and
(b) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.
Ind. Post-Conviction Rule 2(1). Although there are no set standards defining delay and each case must be decided on its own facts, a defendant must be without fault in the delay of filing the notice of appeal. Baysinger v. State, 835 N.E.2d 223, 224 (Ind.Ct.App.2005). "Factors affecting this determination include the defendant's level of awareness of his or her procedural remedy, age, education, familiarity with the legal system, whether he or she was informed of his or her appellate rights, and whether he or she committed an act or omission that contributed to the delay." Id.
A hearing on a motion to file a belated notice of appeal should be held where the motion raises a genuine factual dispute concerning the existence of grounds for relief. Green v. State, 593 N.E.2d 1237, 1238 (Ind.Ct.App.1992). In determining the existence of a genuine factual dispute concerning the grounds for relief, the court is entitled to consider the court's records in the case. Id.
Whether a defendant is responsible for the delay is a matter within the trial court's discretion. Baysinger, 835 N.E.2d at 224. "Although we acknowledge that the trial court is generally in a better position to weigh evidence and judge witness credibility and we defer to that discretion, such is not always the case." Id. Where, as here, the trial court does not hold a hearing before granting or denying a petition to file a belated notice of appeal, the only bases for that decision are the allegations contained in the motion to file a belated notice of appeal. See id. Because we are reviewing the same information that was available to the trial court, we owe no deference to its findings. Id. Thus, we review the grant of Hull's motion de novo. See id.
The State alleges that Hull's successive motion to file a belated notice of appeal "simply alleges that he was without fault in failing to file a timely notice of appeal because the trial court did not inform him at his sentencing that he could appeal his sentence and that he has been diligent in seeking permission to file a belated notice of appeal." Appellee's Brief at 18. The State asserts that Hull did not meet his burden of proving those allegations. But the State does not dispute that the trial court failed to inform Hull at the resentencing hearing of his right to appeal his sentence. And in his motion, Hull alleged that the trial court did not inform him of his appellate rights after he was resentenced, that he was entitled to have pauper counsel appointed to represent him on appeal, that he did not "sleep on his rights[,]" and that he was "diligent in trying to maintain his appellate rights." Appellant's App. Vol. I at 72. We are unaware of any other evidence that Hull could have attached in support of his motion.
The case of Baysinger is on point. Baysinger pleaded guilty in an open plea. Four years later, he filed a petition to file a belated notice of appeal, which the trial court denied. On appeal, Baysinger claimed that the trial court should not have denied his petition because both the trial court and his trial counsel had failed to inform him of his appellate rights.2 We agreed with Baysinger and reversed. In response to the State's challenge that Baysinger had failed to meet his burden of proof under Indiana Post-Conviction Rule 2, we noted that Baysinger had filed an affidavit and attached the transcripts of his guilty plea and sentencing hearings. "Given the procedural posture of Baysinger's sentencing challenge, we are unaware of any additional information that he could have attached in support of his petition." Id. at 225.
Here, Hull alleged in his motion that the trial court did not advise him of his appellate rights at the resentencing hearing and that he was diligent in pursuing his right to appeal the new sentence. The State does not dispute that Hull was not advised of his appellate rights at resentencing. As in Baysinger, we are unaware of any additional information that Hull could have provided in support of his motion.
It is well-settled that a person who pleads guilty is entitled to contest on direct appeal the merits of a trial court's sentencing decision where the trial court has exercised its discretion. Collins v. State, 817 N.E.2d 230, 231 (Ind.2004). Here, the trial court failed to inform Hull of his appellate rights when he was resentenced. Hull filed his motion to file a belated notice of appeal less than one year after the resentencing hearing. On these facts, we conclude that the trial court did not abuse its discretion when it granted Hull's motion to file a belated notice of appeal.
Hull contends that the trial court abused its discretion when it imposed a ninety-year executed sentence. The determination of the appropriate sentence rests within the discretion of the trial court, and we will not reverse the trial court's determination absent a showing of manifest abuse of that discretion. Bacher v. State, 722 N.E.2d 799, 801 (Ind.2000). The trial court's wide discretion extends to determining whether to increase the presumptive sentence, to impose consecutive sentences on multiple convictions, or both. Singer v. State, 674 N.E.2d 11, 13 (Ind.Ct.App.1996). If the sentence imposed is authorized by statute, we will not revise or set aside the sentence unless it is inappropriate in light of the nature of the offense and the character of the offender. Ind. Appellate Rule 7(B); McCann v. State, 749 N.E.2d 1116, 1121 (Ind.2001).
Hull asserts that he was denied due process because a greater sentence was imposed upon resentencing after appeal, that the trial court violated his Sixth Amendment...
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