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 Matthew D. Fisher
Deputy Public Defender Deputy Attorney General
Indianapolis, IN Indianapolis, IN
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 10S01-0404-PC-190
Warren Gutermuth,
Appellant (Petitioner below),
v.
State of Indiana,
Appellee (Respondent below).
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Appeal from the Clark County Circuit Court, No. 10C01-9603-CF-021
The Honorable Daniel F. Donahue, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 10A01-0306-
PC-218
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November 9, 2004
Sullivan, Justice.
In January, 1997, Warren Gutermuth pled guilty in accordance with a
plea agreement to three counts of Class C felony child molestation in an
“open plea,” i.e., with sentencing left to the trial court's discretion.
The trial court sentenced Gutermuth to three consecutive eight-year
sentences, with four years of the third sentence suspended.
Gutermuth did not file a direct appeal. He did file a pro se petition
for post-conviction relief in July, 2000. He amended the petition in
December, 2002. In the petition for post-conviction relief, Gutermuth
challenged the trial court’s consideration of various aggravating and
mitigating factors in determining his sentence.
In April, 2003, the post-conviction court denied Gutermuth's petition,
finding that the trial court properly considered the aggravating and
mitigating factors involved. The Court of Appeals affirmed the post-
conviction court’s denial of Gutermuth’s post-conviction relief petition on
its merits but rejected the State's argument that his sentence challenge
was waived due to procedural default. Gutermuth v. State, 800 N.E.2d 592,
598 (Ind. Ct. App. 2003). The State seeks transfer, challenging this
latter determination.
On the same day Gutermuth was decided, the Court of Appeals also
decided Collins v. State, 800 N.E.2d 609 (Ind. Ct. App. 2003), a case that
raised the identical issue, namely, 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. We decide
Collins in a separate opinion today. Collins v. State, No. 49S05-0404-PC-
189, -- N.E.2d -- (Ind. --). Following Taylor v. State, 780 N.E.2d 430
(Ind. Ct. App. 2003), trans. denied, 804 N.E.2d 760 (Ind. 2003), we hold in
Collins 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.
In all relevant respects, Gutermuth's situation is the same as that of
the petitioner in Collins. Accordingly, we hold that the post-conviction
court should have dismissed the petition for post-conviction relief for
lack of jurisdiction without prejudice to any right Gutermuth may have to
file a belated notice of appeal 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 Gutermuth’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 Gutermuth’s petition for post-
conviction relief and to enter an order dismissing Gutermuth’s petition for
post-conviction relief without prejudice.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ, concur.