Collins v. State

Attorney for Appellant Attorney for Appellee

Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of
Indiana
Indianapolis, IN Indianapolis, IN

Gregory J. Garvey Nicole M. Schuster
Deputy Public Defender Deputy Attorney General
Indianapolis, IN Indianapolis, IN

____________________________________________________________________________
__

In the
Indiana Supreme Court
_________________________________

No. 49S05-0404-PC-189

Daniel Boone Collins,
Appellant (Petitioner below),

v.

State of Indiana,
Appellee (Respondent below).
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Appeal from the Marion County Superior Court, No. 49G06-9606-CF-074629
The Honorable Jane Magnus-Stinson, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0304-
PC-159
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November 9, 2004

Sullivan, Justice.

In this case, we resolve a conflict in the Court of Appeals over
whether an individual who pleads guilty to an offense in an “open plea” is
entitled to challenge the sentence imposed by means of a petition of post-
conviction relief. Following Taylor v. State, 780 N.E.2d 430 (Ind. Ct.
App. 2003), trans. denied, 804 N.E.2d 760 (Ind. 2003), we hold that such
claims must be raised on direct appeal if at all. We also point out that
Ind. Post-Conviction Rule 2 may be available for this purpose.

Background

In October, 1996, Collins pled guilty to charges of child molesting as
a Class B felony and being a habitual offender. There was no agreement
between Collins and the State as to sentence. In the absence of an
agreement, the trial court sentenced Collins to 20 years on the Class B
felony and an additional 30 years on the habitual offender enhancement.

Collins did not file a direct appeal. In February, 2000, Collins
filed a pro se petition for post-conviction relief. The petition was
amended in April, 2002. In the amended petition for post-conviction
relief, Collins claimed that he had been erroneously sentenced.

In December, 2002, the post-conviction court denied Collins’s
petition, finding that his sentencing claim was not available because he
could have raised but did not raise the issue on direct appeal.

The Court of Appeals affirmed the post-conviction court’s denial of
Collins’s post-conviction relief petition on its merits but in doing so
rejected the State's argument that Collins's challenge to his sentence had
been waived due to procedural default. Collins v. State, 800 N.E.2d 609,
614 (Ind. Ct. App. 2003).

On the same date it issued its opinion in Collins, the Court of
Appeals also decided Gutermuth v. State, 800 N.E.2d 592 (Ind. Ct. App.
2003), in which another individual who had pled guilty without an agreement
as to sentence challenged his sentence by filing a petition for post-
conviction relief, rather than filing a direct appeal. The Court of
Appeals reached the same result in Gutermuth as it did here.

The State sought transfer in both this case and Gutermuth, contending
that the sentencing claims had been procedurally defaulted because they had
not been raised on direct appeal. Collins also sought transfer. We denied
the Collins's Petition to Transfer, Collins v. State, 812 N.E.2d 803 (Ind.
2004), but granted the State's, Collins v. State, 2004 Ind. LEXIS 402 (Ind.
2004).

Discussion

A person who pleads guilty is not permitted to challenge the propriety
of that conviction on direct appeal. However, 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 sentencing
discretion, i.e., where the sentence is not part offixed by the plea
agreement. Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind. 1996). (A plea
agreement where the issue of sentencing is left to the trial court's
discretion is often referred to as an “open plea.” See, e.g., Green v.
State, 811 N.E.2d 874, 876 (Ind. Ct. App. 2004); Benson v. State, 780
N.E.2d 413, 420 (Ind. Ct. App. 2002), trans. denied, 804 N.E.2d 746 (Ind.
2003); Huddleston v. State, 764 N.E.2d 655, 657 (Ind. Ct. App. 2002),
trans. denied, 774 N.E.2d 508 (Ind. 2002). We will use that terminology in
this opinion.)

It is also is well-settled that, because a post-conviction relief
proceeding is not a substitute for direct appeal but rather a process for
raising issues unknown or not available at trial, an issue known and
available but not raised on direct appeal may not be raised in post-
conviction proceedings. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002).

In this case and in Gutermuth, we are asked to determine whether an
individual who pled guilty in an open plea may challenge the sentence in
post-conviction proceedings or whether the claim is not available because
it could have been but was not raised on direct appeal.

During the guilty plea hearing, the original trial court instructed
Collins, “Now when you plead guilty, see, if we had gone to trial and you
had been convicted after a trial, Mr. Collins, you could have taken an
appeal. When you plead guilty you waive your right to an appeal.” (Def.’s
Ex. A at 17-18.) The Court of Appeals found that the trial court’s
instruction “misinformed” Collins that he “completely waived the right to
appeal when he pled guilty.” Collins, 800 N.E.2d at 616. Out of
“fairness,” the Court of Appeals concluded that Collins's challenge to his
sentence was available to be raised in a petition for post-conviction
relief. Id. at 614. (The Court of Appeals in Gutermuth used a similar
analysis to conclude that post-conviction proceedings were available to
challenge the sentence imposed in that case.)

Collins and Gutermuth are in conflict with the Court of Appeals
opinion in Taylor v. State, 780 N.E.2d 430, 435 (Ind. Ct. App. 2002),
trans. denied, 804 N.E.2d 760 (Ind. 2003). As in the cases before us, the
petitioner in Taylor challenged in post-conviction proceedings the sentence
imposed in an open plea; he too had not filed a direct appeal. The post-
conviction court denied relief and the Court of Appeals affirmed, finding
the issue not available for post-conviction review because it had been
known and available for review on direct appeal. Taylor, 780 N.E.2d at
435.

The Court of Appeals in Taylor properly relied upon our decision in
Bunch v. State, where we found that a defendant convicted by a jury who had
not raised his sentencing claim on direct appeal was foreclosed from
raising it later in a post-conviction relief proceeding. Taylor, 780
N.E.2d at 432-33 (citing Bunch, 778 N.E.2d 1285, 1289 (Ind. 2002)). And
the Taylor court correctly observed that there is no distinction for these
purposes between a sentence imposed following a jury trial and an open
plea.

In particular, we adopt the following paragraph from Taylor:

We recognize that Reffett [v. State, 571 N.E.2d 1227 (Ind.
1991),] and other cases suggest that post-conviction procedures are a
proper method of addressing sentencing errors. See also Ind. Post-
Conviction Rule 1(1)(a)(3). Be that as it may, we simply cannot
ignore the fact that, in the case before us, Taylor makes no claim
that he was somehow unable to file a direct appeal. Rule 7(A) of the
Indiana Rules of Appellate Procedure clearly states that "a defendant
in a Criminal Appeal may appeal the defendant's sentence." See also
Tumulty, 666 N.E.2d at 395-96. Applying the holding of Bunch, [760
N.E.2d 1163], to the case before us, we conclude that Taylor has
forfeited his claim of sentencing error by failing to present it upon
direct appeal, when such could have been so presented. Taylor admits
that he filed no direct appeal, and we can discern no difference
between this situation and one in which a defendant does file a direct
appeal, but fails to present an issue to the court. The fact remains
that the sentencing issue could have been presented upon direct appeal
but was not. Thus, this issue is not available to Taylor upon a
petition for post-conviction relief. See Woods [v. State], 701 N.E.2d
[1208,] 1213 [(Ind. 1998)].

Taylor, 780 N.E.2d at 435.

The Court of Appeals in Collins and Gutermuth found their respective
cases distinguishable from Taylor because the petitioners had not been
advised that they had a right to appeal their sentences and, indeed, had
been told, “When you plead guilty you waive your right to an appeal.”
Collins, 800 N.E.2d at 613.

The fact that the trial court at a guilty plea hearing does not
advise the defendant in an open plea situation that the defendant has the
right to appeal the sentence to be imposed does not warrant an exception to
the rule that sentencing claims must be raised on direct appeal. This is
because Indiana Post-Conviction Rule 2 will generally be available to an
individual in this situation.[1] Post-Conviction Rule 2 permits an
individual convicted after a trial or guilty plea who fails to file a
timely notice of appeal to petition for permission to file a belated notice
of appeal where the failure to file a timely notice of appeal is not the
fault of the individual; and the individual is diligent in requesting
permission to file a belated notice of appeal. Post-Conviction Rule 2 also
gives a petitioner the right to appeal a trial court’s denial of a belated
notice of appeal. See Davis v. State, 771 N.E.2d 647, 648-49 (Ind. 2002).

We hold that the proper procedure for an individual who has pled
guilty in an open plea to challenge the sentence imposed is to file a
direct appeal or, if the time for filing a direct appeal has run, to file
an appeal under P-C. R. 2. Here the post-conviction court should have
dismissed the petition for post-conviction relief for lack of jurisdiction
without prejudice to any right Collins may have to file a belated notice of
appeal under in accordance with the requirements of P-C. R. 2.

Given our resolution of the procedural issues in this case, we find no
need to review the merits of Collins’s sentencing claim.

Conclusion

Having previously granted transfer, thereby vacating the opinion of
the Court of Appeals, we remand to the post-conviction court with
instructions to vacate its order denying Collins’s petition for post-
conviction relief and to enter an order dismissing Collins’s petition for
post-conviction relief without prejudice.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
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[1] We acknowledge some ambiguity in Ind. Post-Conviction Rule 2 both as to
the issue raised in this appeal and the issue resolved in Tumulty v. State,
666 N.E.2d 394 (Ind. 1996), discussed in the text. We have amended P-C. R.
2 in an effort to eliminate the ambiguity. See Order Amending Ind. Rules
of Procedure for Post-Conviction Remedies (Ind. Sept. 30, 2004),
http://www.in.gov/judiciary/orders/rule-amendments/2004/0904-pcr.pdf.