FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jan 25 2013, 9:41 am
any court except for the purpose of
establishing the defense of res judicata,
CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN M. O’CONNOR GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARLES KINGERY, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1204-CR-317
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila Carlisle, Judge
Cause No. 49G03-9302-CF-17408
January 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Charles Kingery appeals the denial of his motion to resentence him for murder1 when
the trial court resentenced him for Class C felony robbery.2 He asserts he was entitled to be
resentenced for murder in accordance with the Sixth Amendment constraints announced in
Blakely v. Washington, 542 U.S. 296 (2004), reh’g denied, and Smylie v. State, 823 N.E.2d
679 (Ind. 2005), cert. denied 546 U.S. 976 (2005). As Kingery’s direct appeal of his murder
conviction and sentence was final more than eight years before Blakely was decided, the trial
court was not obliged to resentence Kingery for murder. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
Around 3:00 a.m. on April 2, 1991, George Wildrick was sitting in his truck outside
the Goldfinger Lounge. Kingery fired three shots, killing Wildrick. Kingery then pulled
Wildrick from his truck and took money from his body. The State charged Kingery with
murder, felony murder, and robbery. A jury found Kingery guilty of murder and Class A
felony robbery. The trial court entered convictions of murder and Class B felony robbery and
then imposed a fifty-five year sentence for murder and a fifteen-year sentence for Class B
felony robbery, with the two sentences to be served consecutively.
Kingery filed a direct appeal alleging a number of errors including that his sentences
were invalid. The Indiana Supreme Court held:
We affirm the murder conviction, the murder sentence, and Kingery’s
conviction on the lesser included offense of Class C robbery. However,
because the trial court improperly sentenced Kingery for Class B robbery, we
vacate the Class B robbery sentence and remand for a new sentencing on the
Class C robbery conviction.
1
Ind. Code § 35-42-1-1.
2
Ind. Code § 35-42-5-1.
2
Kingery v. State, 659 N.E.2d 490, 491 (Ind. 1995).
Rather than proceed to sentencing for Class C felony robbery, Kingery filed a petition
for post-conviction relief in which he asserted he was entitled to a new trial on both the
murder and robbery charges because his trial counsel was ineffective. After six evidentiary
hearings, the post-conviction court denied his petition in an order that contained lengthy
findings and conclusions. We affirmed. Kingery v. State, No. 49A02–0806–PC–478 (Ind.
Ct. App. 2008), trans. denied.
Following his unsuccessful post-conviction petition, Kingery petitioned in 2011 to be
sentenced for the lesser-included Class C felony robbery, to be resentenced for murder, and
for a jury trial as to aggravators pursuant to Blakely, 542 U.S. 296, and Smylie, 823 N.E.2d
679. The State objected to Kingery’s request to be resentenced for murder. The court
granted Kingery’s motion to be resentenced as to robbery, but denied his motion as to the
murder sentence:
6. The Indiana Supreme Court’s decision on direct appeal does not
support the Defendant’s contention that he is entitled to be resentenced
on the Murder count as well as the Robbery/FC count. With respect to
re-sentencing, the Supreme Court stated:
“Kingery’s conviction and sentence for murder is affirmed. Kingery’s
conviction for Class C robbery as a lesser included offense of Class A
robbery is affirmed. Because the trial judge improperly sentenced
Kingery for Class B robbery, we vacate and remand for a new
sentencing on the Class C robbery conviction[.]” Kingery v. State, 659
N.E.2d 490, 498 (Ind. 1995)[.]
7. The Defendant’s motion to vacate the sentence on the Murder count is
DENIED. The sentence of fifty-five years on Count I, Murder will not
be vacated and that sentence will stand, as it was a final determination
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by the Indiana Supreme Court in 1995.
8. The Defendant is entitled to a re-sentencing hearing on Count II,
Robbery, as a Class C felony. Since the Robbery re-sentencing did not
occur as originally directed in 1995, it is this Court’s opinion that this
count has been “pending” since that time. As such, his sentence would
be subject to a direct review after the re-sentencing hearing, and
therefore he should receive the benefit of the decisions in Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L.E.2d 403 (2004) and
Smylie v. State, 823 N.E.2d 679 (Ind. 2005).
9. Accordingly, the established Blakely rules would apply as outlined in
Smylie. That is, if the defendant’s robbery sentence is in excess of the
presumptive sentence for any reason other than a prior conviction, he
would be entitled to a jury trial on the aggravating circumstances which
are used to increase that sentence.
10. Therefore, the Court GRANTS the Defendant’s motion for
resentencing on the Class C felony Robbery count and for a jury trial if
an aggravated sentence is pursued by the State of Indiana. Specifically,
if the State of Indiana seeks a sentence above the presumptive sentence
on the Robbery/FC, the Defendant would be entitled to a jury trial on
any aggravating circumstances which are used to increase that sentence.
(App. at 392.) The State elected to not present evidence as to aggravators, and the court did
not impanel a jury. The court imposed the four-year presumptive sentence for a Class C
felony and ordered it served concurrent to the fifty-five year sentence Kingery was serving
for murder.
DISCUSSION AND DECISION
Kingery claims the trial court should have granted his request to be resentenced for
murder because his sentence for murder was “not final” before the sentencing changes
produced by Blakely and Smylie. (Br. of Appellee at 7.) We disagree.
In Blakely, the United States Supreme Court held the Sixth Amendment required a
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jury find beyond a reasonable doubt any fact used to aggravate a sentence beyond “the
maximum [a judge] may impose without any additional findings.” 542 U.S. at 303-04
(emphasis in original). Then, in Smylie, our Indiana Supreme Court evaluated the
constitutionality of Indiana’s presumptive sentencing scheme in light of Blakely. The Court
held
portions of Indiana’s sentencing scheme violate the Sixth Amendment’s right
to trial by jury, and that the new rule of Blakely should apply to all cases
pending on direct review at the time Blakely was announced in which the
appellant has adequately preserved appellate review of the sentence.
Smylie, 823 N.E.2d at 681-82. The court concluded “it is appropriate to be rather liberal in
approaching whether an appellant and her lawyer have adequately preserved and raised a
Blakely issue.” Id. at 690.
Nevertheless, the court limited “the application of Blakely to any case pending on
direct review . . . subject to the standard rules governing appellate procedure such as waiver
and forfeiture.” Id. at 688. Because the holding would apply only to cases “on direct
review,” id., Blakely claims may not be raised in belated appeals. Gutermuth v. State, 868
N.E.2d 427 (Ind. 2007).
Kingery asserts he is entitled to be resentenced for murder based on our court’s
language in Kline v. State, 875 N.E.2d 435, 438 (Ind. Ct. App. 2007), wherein we held a
defendant’s sentences for four crimes that occurred between 1992 and 1997 were erroneous
because the restitution order required Kline “to pay undetermined future expenses” for
counseling for his crime victims. The parties argued whether resentencing should occur
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pursuant to the statutory scheme that existed when he committed his crimes or pursuant to the
law established in Blakely. We held:
[O]ur Supreme Court has decided Blakely claims may not be raised in belated
appeals. Gutermuth v. State, 868 N.E.2d 427 (Ind. 2007). However,
Gutermuth does not tell us whether the trial court must comply with Blakely
when resentencing a pre-Blakely conviction.
We believe Gutermuth is distinguishable. Kline did not file a belated
appeal for the purpose of taking advantage of the new rule in Blakely. He
raised other valid claims, which resulted in his case being remanded for
resentencing in a post-Blakely world. If Kline must be resentenced, we see no
reason why the trial court should not comply with the current state of
constitutional law. Therefore, on remand, the trial court may not enhance
Kline’s sentence based on additional facts “unless those facts are either (1) a
prior conviction; (2) facts found by a jury beyond a reasonable doubt; (3) facts
admitted by the defendant; [or] (4) facts found by the sentencing judge after
the defendant has waived Apprendi rights and consented to judicial
factfinding.” Robertson v. State, 871 NE.2d 280, 286 (Ind. 2007).
This case is remanded for resentencing in accordance with this opinion
and the terms of the original plea agreement.
Id. Kingery asserts that he, like Kline, should receive the benefit of being resentenced in a
post-Blakely world.
As to the robbery count that was remanded for resentencing, sentencing in accordance
with the protection of Blakely is precisely what Kingery received. The trial court determined
the State, if it wished to obtain a sentence longer than the four-year presumptive sentence for
Class C felony robbery that existed when Kingery committed his crimes, would be required
to prove aggravators to a jury. (See App. at 392.) The State elected to forego proving
aggravators, and the court sentenced Kingery to four years for his Class C felony robbery.
Because his murder conviction and sentence were part of the same underlying cause as
the robbery for which he was to be resentenced, Kingery asserts his sentence for murder was
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not “final,” (Br. of Appellee at 7), and thus he should be resentenced for murder in
accordance with Blakely and Smylie. However, a defendant’s case becomes “final,” for
purposes of raising a right to have a sentence overturned pursuant to Blakely, when the time
for filing a timely direct appeal has expired. Guttermuth, 868 N.E.2d at 434. As Kingery
was convicted nearly twenty years ago, his right to file a direct appeal expired long ago. See
Ind. Appellate Rule 9 (providing right to direct appeal forfeited if notice of appeal not filed
within thirty days of entry of final judgment).
Furthermore, when deciding Kingery’s direct appeal, our Indiana Supreme Court said:
“We affirm the murder conviction, the murder sentence, and Kingery’s conviction on the
lesser included offense of Class C robbery . . . and remand for a new sentencing on the Class
C robbery conviction.” Kingery, 659 N.E.2d at 491. That instruction did not give the trial
court discretion to resentence Kingery for murder.3 See Jordan v. State, 631 N.E.2d 537, 538
(Ind. Ct. App. 1994) (“a trial court does not have the authority to disregard the mandate of a
reviewing court”).
For all these reasons, we cannot find error in the trial court’s refusal to resentence
Kingery for murder. Kingery does not challenge the sentence imposed for Class C felony
robbery, and we affirm.
Affirmed.
ROBB, C.J., and PYLE, J., concur.
3
That Supreme Court instruction regarding remand also makes Kingery’s situation distinguishable from from
the facts in the other case on which Kingery relies, Owens v. State, 897 N.E.2d 537, 540 (Ind. Ct. App. 2008).
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