FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DEAN E. BLANCK GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
May 30 2013, 9:15 am
IN THE
COURT OF APPEALS OF INDIANA
DEAN ERIC BLANCK, )
)
Appellant-Defendant, )
)
vs. ) No. 47A01-1209-CR-424
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAWRENCE SUPERIOR COURT
The Honorable William G. Sleva, Judge
Cause No. 47D02-1106-FD-768
May 30, 2013
OPINION - FOR PUBLICATION
DARDEN, Senior Judge
STATEMENT OF THE CASE
Dean Blanck appeals the trial court’s denial of his petitions for permission to file a
belated notice of appeal and for appointment of appellate counsel. We affirm.
ISSUE
Blanck presents two issues, which we restate as one: whether the trial court erred
by denying Blanck’s petitions for permission to file a belated notice of appeal and for
appointment of appellate counsel.
FACTS AND PROCEDURAL HISTORY
In June 2011, Blanck was charged with operating a vehicle while intoxicated, a
Class D felony, Ind. Code § 9-30-5-3 (2008); driving while suspended, a Class A
misdemeanor, Ind. Code § 9-24-19-2 (2000); and being a habitual substance offender, a
Class A misdemeanor, Ind. Code § 35-50-2-10 (2006). On December 20, 2011, Blanck
pleaded guilty to the charge of operating a vehicle while intoxicated as a Class D felony
and was sentenced to three years to be served on electronic monitoring, all pursuant to a
written plea agreement. The plea agreement also provided for the suspension of Blanck’s
license and for the State’s dismissal of the charges of driving while suspended and being
a habitual substance offender.
On July 20, 2012, Blanck filed with the trial court a petition for permission to file
a belated notice of appeal and a petition for appointment of appellate counsel to pursue
proceedings under Indiana Post-Conviction Rule 2. Although the trial court initially
granted Blanck’s requests on August 15, 2012, it subsequently entered an order denying
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Blanck’s requests just a few days later on August 21, 2012. It is from this order of denial
that Blanck now appeals.
DISCUSSION AND DECISION
Blanck contends the trial court erred by denying his petitions for permission to file
a belated notice of appeal and for appointment of appellate counsel. To support his
argument, he claims that his plea agreement was an “open plea” such that he has a right
to a belated direct appeal.
A trial court’s ruling on a petition for permission to seek relief under Post–
Conviction Rule 2 should be affirmed unless the ruling is based on an error of law or a
clearly erroneous factual determination, typically referred to as an abuse of discretion.
Bosley v. State, 871 N.E.2d 999, 1002 (Ind. Ct. App. 2007).
Indiana Post-Conviction Rule 2 states, in pertinent part:
An “eligible defendant” for purposes of this Rule is a defendant who, but
for the defendant’s failure to do so timely, would have the right to
challenge on direct appeal a conviction or sentence after a trial or plea of
guilty by filing a notice of appeal, filing a motion to correct error, or
pursuing an appeal.
Thus, to qualify for the belated filings permitted by Post-Conviction Rule 2, a defendant
must first have the right to challenge on direct appeal his conviction or sentence after a
trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or
pursuing an appeal. See P-C.R. 2.
Where a plea agreement includes a defendant’s agreement to a specific sentence,
the defendant may not challenge the sentence by means of a timely or belated direct
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appeal. Sholes v. State, 878 N.E.2d 1232, 1235 (Ind. 2008). However, where the guilty
plea is an “open plea,” that is, a plea agreement under which the trial court exercised
sentencing discretion, direct appeal challenges to sentences have been permitted. Id.
Here, Blanck attempts to read sections (A) and (B) of his written plea agreement
as if they are in unison when they are clearly separate sections. Section (A), which was
left blank in Blanck’s plea agreement, is for an open plea and states: “Open sentencing
except that the executed portion of the sentence shall not exceed ________________.”
Appellant’s App. p. 18. Section (B), on the other hand, is for a fixed plea. Section (B) of
Blanck’s plea agreement was filled in and specifically states that Blanck will serve “3
days/years1 in jail with 0 days/years suspended with credit for ________ days served.
Sentence to be served on electronic monitoring.” Id. Hence, Blanck’s plea agreement,
as well as the transcript of the plea hearing, clearly show that Blanck’s three-year
sentence did not result from an open plea, but rather from his explicit agreement that for
operating a vehicle while intoxicated he would be sentenced to a fixed sentence of three
years on electronic monitoring. This plea of guilty with a fixed sentence precludes
Blanck from challenging his sentence by direct appeal. Therefore, because Blanck does
not have a right to challenge his sentence on direct appeal, he is not “eligible” to seek
permission for a belated appeal to challenge his sentence under Post-Conviction Rule 2.
Blanck’s available remedy, if any, is through the filing of a petition for post-conviction
relief. See Kling v. State, 837 N.E.2d 502, 504 (Ind. 2005) (noting that defendant who
1
Although here we use underlining, we note that in the plea agreement the word “years” was circled. See
Appellant’s App. p. 18.
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pleads guilty cannot challenge conviction by means of direct appeal but only through
petition for post-conviction relief). Thus, the trial court properly denied Blanck’s petition
for permission to file a belated notice of appeal.
Moreover, because Blanck is ineligible to bring a belated appeal, the trial court
properly denied Blanck’s petition to appoint appellate counsel for that purpose.
CONCLUSION
For the reasons stated, we conclude that the trial court properly denied Blanck’s
petitions for permission to file a belated notice of appeal and for appointment of appellate
counsel.
Affirmed.
RILEY, J., and BARNES, J., concur.
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