Pursuant to Ind.Appellate Rule 65(D),

this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

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

- 930 2

- CF

- 1 7408
January 25, 2013 MEMORANDUM DECISION
- NOT FOR PUBLICATION MAY, Judge2

Charles Kingery appeals the denial of his motion to resentence him for murder 1 wh en 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), c e rt. denied 546 U.S. 976 (2005). As Kingery’s direct appeal of his murd er 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 felon y robbery, with the two sen tences 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 convic tion.

1 Ind. Code § 35

- 42

- 1

- 1. 2 Ind. Code § 35

- 42

- 5

- 1.3

Kingery v. State , 659 N.E.2d 490, 49 1 (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 robber y 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 Indian a 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 convict ion 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 senten cing 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 determination4 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 originall y 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 B lakely 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 fo r 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 wo uld 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 murde r 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 a5

jury find beyond a re asonable 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 India na’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 th e 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 ha ve adequately preserved and raised a Blakely issue.” I

d . 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 forfeit ure.” 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 b ased on our court’s language in Kline v. State , 875 N.E.2d 435, 438 (Ind. Ct. App. 2007) , wherein w e held a defendant’s sentences for four crimes that occurred between 1992 and 1997 were erroneous because the restitution order required Kline “to pay undete rmined future expenses” for counseling for his crime victims. The parties argued whether resentencing should occur6

pursuant to the statutory scheme that existed when he committed his crimes or pursuant to the law established in Blakely . We held: [O] ur Su preme 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 e ither (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.” Rob ertson 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 resentence d 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 lo nger 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 se ntenced 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 was7

not “final,” (B r. 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 fil ing 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, w hen 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 chal lenge 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 disting uishable 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).