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Friday, October 13, 2006

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Steven L. Baysinger v. State of Indiana, a 14-page opinion (with a concurring opinion beginning on p. 11), Judge Riley writes:

Appellant-Defendant, Steven L. Baysinger (Baysinger), appeals his sixty-five year sentence for murder, Ind. Code § 35-42-1-1(1). We affirm.

Baysinger raises two issues on appeal, which we restate as follows: (1) Whether Blakely v. Washington, 542 U.S. 296 (2004), reh’g denied, applies retroactively to Baysinger’s case, thereby calling into question the trial court’s findings of certain aggravating circumstances; and (2) Whether Baysinger was properly sentenced. * * *

Baysinger first argues that the trial court violated his Sixth Amendment right to have aggravating factors determined by a jury in violation of Blakely v. Washington. He insists that the language of Indiana Post-Conviction Rule 2(1) mandates retroactive application of Blakely under these facts. The Rule provides, in pertinent part, that where a court grants a defendant permission to file a belated notice of appeal that “notice of appeal shall be treated for all purposes as if filed within the prescribed period.” Ind. Post-Conviction Rule 2(1). We agree. * * *

Because of our Supreme Court's ruling in Blakely, many defendants 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.” Id. Accordingly, we reaffirm that “[u]nless and until the U.S. Supreme Court revises or clarifies its rules on retroactivity, however, we are bound to consider the merits of belated Blakely appeals where appropriate.” * * *

Here, the trial court properly used Baysinger’s prior criminal conviction to enhance his sentence. * * * We agree with the State and therefore find that it was not an abuse of discretion for the trial court to find Baysinger’s prior criminal history to be an aggravator. Therefore, a Blakely analysis, as to any other aggravators, is not necessary as we can say with confidence that the trial court would have imposed the same sentence had it considered only Baysinger’s prior criminal history as an aggravator in this case. See Witmer v. State, 800 N.E.2d 571, 572-73 (Ind. 2003) (“Where a trial court has used an erroneous aggravator, as occurred here, the court on appeal can nevertheless affirm the sentence if it can say with confidence that the same sentence is appropriate.”) (citing Day v. State, 560 N.E.2d 641, 643 (Ind. 1990)). We therefore decline to remand Baysinger’s case for a reevaluation of the sentencing considerations. * * *

Affirmed. DARDEN, J., concurs.
VAIDIK, J., concurs in result with separate opinion.

While I concur in the result reached by the majority, I cannot agree that Blakely v. Washington should apply retroactively to Baysinger’s case under Post-Conviction Rule 2(1). In his brief, Baysinger seizes on that portion of Rule 2(1) providing that “notice of appeal shall be treated for all purposes as if filed within the prescribed period.” I believe that this language applies only to the procedural treatment of the notice of appeal and should not be manipulated as a vehicle to reach the substantive issues addressed in the appeal itself. * * *

I would hold, then, that Blakely does not apply retroactively to Baysinger’s appeal. Reviewing the aggravators before the trial court, then, without subjecting any of them to a Blakely analysis, I would find that three of them—the nature and circumstances of the crime, past criminal history, and lack of remorse—are appropriate aggravators. Given the combination of these three aggravators, I can say with confidence that the trial court would have imposed the same sentence, therefore reversal is not necessary. I further agree with the majority’s Rule 7(B) analysis, and I therefore concur in result.

NFP civil opinions today (2):

Aaron Israel and Gary Robertson v. J. David Donahue, et al. (NFP) - "Concluding that the trial court has subject matter jurisdiction over Israel’s [an inmate at the Westville Control Unit (WCU), a maximum security facility] claims, we reverse and remand for further proceedings consistent with this opinion."

Sarah Ponsford v. Michael T. Chastain (NFP) - child support issues

NFP criminal opinions today (3) (link to cases):

Lorenzo Stewart v. State of Indiana (NFP)

Bryant Clark v. State of Indiana (NFP)

Joe L. Jackson, Jr. v. State of Indiana (NFP)

Posted by Marcia Oddi on October 13, 2006 11:55 AM
Posted to Ind. App.Ct. Decisions