Gutermuth: The Blakely WayBack Machine

After reading some Burton materials, I was going to offer a brief post on the variety of things the lawyering and judging crews mean when they say a case is "retroactive." And then Judges Crone, Friedlander, and May of the Indiana Court of Appeals throw out a timely case with a substantial wrinkle in the typology. The case is Gutermuth v. State (Ind. Ct. App. June 7, 2006). It's a 34-page opus. And an important one. It could be hugely important, actually.

Here's the question: Gutermuth was sentenced in 1997. He pled guilty to three counts of child molesting. That's three years before Apprendi and nine years before Blakely. Does he get the benefit of Blakely?

Here's the answer: Yes.

Here's the question: How?


Three Kinds of Retroactivity

1. There is Griffith v. Kentucky "retroactivity." When a new case is decided, any case pending on direct review at the time gets the analysis of the new case. In the case of criminal appeals, this is pretty much a one-way door. If the law has changed for the worse while their case is pending on direct appeal, a criminal appellant is, in most circumstances that I can thinks of, not going to be saddled with the new worse law. (Which is why it is, to this day, so scandalous that Teague was Teagued.) Gutermuth involves quite a twist on Griffith "retroactivity."

2. Then there is the kind of "retroactivity" that seems to be at issue in Burton. Burton's direct appeal became final between Apprendi and Blakely. Burton's main argument, if I am not mischaracterizing it, is that Blakely changed nothing, and therefore he should get the benefit of Apprendi. This second kind of "retroactivity" is not retroactivity at all, in fact. Call it "As our precedents make clear" "retroactivity."

Because Burton is a habeas appeal under the AEDPA, it could be hilarious, however gratifying, to see the Court say that any pre-Blakely application of Apprendi not in conformance with Blakely was unreasonable. Let's see. That would include everyone for about four years. Except Kansas, of course.

3. Then there is Teague retroactivity, which is the only kind, it seems to me, that deserves the name. Every case, however final, rises from the dead to live again in the light of the new case. Call it "Lazarus Retroactivity." I thought that Winship was the last case the Supreme Court gave full retroactivity to. But I believe I saw there was one in the 80's. I do not believe there has been one since Teague was decided in 1989.

Some Background on Indiana Bad Practices and Gutermuth

For years, until relatively recently, it was the practice of almost all Indiana trial courts to make a bollocks of guilty plea hearings. The courts would tell defendants that by pleading guilty they were waiving their right to appeal their convictions. The Indiana Supreme Court has said that you may not appeal a conviction from a guilty plea. So this advisement should not have been much of a problem. Any later attack on the conviction simply had to be by way of post-conviction relief.

Unfortunately, the Indiana Supreme Court said quite long ago that even from a guilty plea you may not wait for post-conviction proceedings to attack a sentence. If you want to attack a sentence, it has to be by direct appeal.

But the trial courts did not tell people this. I am not sure why the lawyers involved said nothing--defense or prosecution. It's not as if the law was unclear. But, in any event, there was a bunch of folks who were lead off from their guilty pleas believing there was nothing left to do, because they had not been advised of their right, indeed the necessity, of appealing their sentences.


Gutermuth I and Collins

Having pled guilty in 1997, in 2000, Gutermuth filed for post-conviction relief.

The Court of Appeals affirmed the denial of post-conviction relief in 2003. But the Court of Appeals rejected the State's argument that the sentencing claims had been forfeited because Gutermuth had not appealed them directly after his conviction.

Enter the Indiana Supreme Court in November 2004. The court vacated the Court of Appeals' Gutermuth decision and said that yes, the sentence had to have been appealed directly and could not be attacked in post-conviction proceedings. (The Supreme Court's Gutermuth decision is here . The companion case, Collins, with most of the discussion, is here.)

But that's not the end of the matter. The Supreme Court in both Collins and Gutermuth said that in light of the bad advisements, the two might well be able to pursue what's called here a "belated appeal." A belated appeal, if granted, is just like any other direct appeal.


Gutermuth Reloaded

So, in March of 2005, a little more than 8 months after Blakely, Gutermuth requested and received permission to file a belated appeal. In his appeal, Gutermuth attacked his sentence with Blakely. And yesterday the Court of Appeals said, sure enough, a belated appeal is like any other direct appeal, and Gutermuth got review of his Blakely claims.

To be sure, Judge Crone, writing for the panel, did not sound happy about the result:

At this point, it bears mentioning that those familiar with Indiana’s criminal justice system are aware that there are likely hundreds, if not thousands, of criminal defendants in a situation similar to Gutermuth’s: namely, those who pled guilty and were sentenced prior to both Collins and Blakely and were not advised of their right to challenge their sentence in a direct appeal. Pursuant to Smylie and Griffith, many of those defendants are now entitled to retroactive application of Blakely, and many of them have pursued (or will pursue) a belated appeal and challenge their enhanced sentences “on the basis of a rule that was not the law when they were convicted [and] could not have been anticipated when they were sentenced[.]” Powell v. State, 574 N.E.2d 331, 334 (Ind. Ct. App. 1991). To put it mildly, the retroactive application of Blakely is likely to “have a highly detrimental effect on the administration of justice.” Id.

Slip op. at 18-19. (Some citations, all footnotes omitted).

The conclusion that Gutermuth gets to raise Blakely claims seemed obvious to me. As I said, belated appeals are just like any old direct appeal.

I was shamed to read in the opinion, however, that two other panels of the Court of Appeals have come to an opposite conclusion in cases that completely escaped my notice. The first is / was Robbins v. State (Ind. Ct. App. 12/28/05). The relevant passage from Robbins appears at page 14 of Gutermuth:

As to whether Robbins’s case was “final” when Blakely was decided, we note that a timely notice of appeal is filed within thirty days after the entry of a final judgment. Ind. Appellate Rule 9(A)(1). While Robbins still had the option of pursuing a belated appeal at the time that the Blakely rule was announced, it is our conclusion that because his right to pursue a timely appeal had lapsed over four years prior to Blakely, his case was final for the purpose of retroactivity. Accordingly, we conclude that Robbins is not entitled to raise a Blakely challenge because Blakely does not apply retroactively to Robbins’s case.

Interestingly, Judge Friedlander concurred in both Gutermuth and Robbins.

[Correction (6/9/06): Thanks to a reader more alert than I, apparently, it turns out that Judge Friedlander in fact dissented, adhering to his Robbins view and vote. I must have simply imagined seeing a unanimous vote line. This is especially bizarre, because Judge May also wrote an opinion labeled "concurring," but she only concurs in result. More about Gutermuth in the next post.]

The second case, Hull v. State (Ind. Ct. App. 12/30/05), says the same thing as Robbins. There's a long quote from it on page 15 of Gutermuth. Not suprisingly, Judge Baker wrote Robbins and concurred in Hull two days later.

I cannot believe I missed these two. Had I caught them myself, I'd have added them to the sidebar under Blatant Indecencies.

Transfer was not sought in either case, and I really do wonder why. (Both Robbins and Hull had private lawyers. Maybe the families had had enough.) I don't know if there are any similar cases from the nether world of the Court of Appeals unpublished decisions that might be on the Supreme Court's radar.

But really. To take so literally the language "pending on direct review" from Griffith, as well as some other language, and to exclude people who are granted belated appeals after Blakely was decided? The rule is: belated appeals, once granted, are like any other direct appeal. And courts simply don't carve out some days, months, or years of law in deciding direct appeals.

Where was Judge Baker when it was time to take the "prior conviction" exception literally with respect to criminal history? In fact, his rehearing opinion in Bledsoe, way back at the very, very beginning, started the "criminal history exception" to Blakely in Indiana.


Signifying . . .

In the end, Gutermuth got nothing from his Blakely claims. But as Judge Crone rightly pointed out, I think, there are lots of folks out there who weren't told of their right / duty to appeal their sentences.

One obvious dam against any eventual wave of belated appeal requests would be simple denials of permission to file belated appeals.

Anyway, bully for this panel. It disagreed--and properly so--with two other panels. (Thank heavens we don't have "Circuit Precedent.") And Judge Friedlander even publicly disagreed with himself. [Note (6/9/06): see the correction above. Judge Friedlander in fact agreed with himself in a dissent.]

A day of good law as well as considerable irony, if you think about Burton's struggle just to get to Blakely to reach back to Apprendi in 2000.


A Final Question

Is this the earliest sentence to which Blakely has so far been applied?