Opinion
21A-CR-1794
05-25-2022
Larry D. Blanton, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
APPELLANT PRO SE Larry D. Blanton New Castle, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General for Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
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.
Appeal from the Monroe Circuit Court The Honorable Mary Ellen Diekhoff, Judge Trial Court Cause No. 53C05-0404-FA-360
APPELLANT PRO SE Larry D. Blanton New Castle, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General for Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE.
Case Summary
[¶1] Larry D. Blanton, Jr. ("Blanton") appeals the trial court's denial of his purported motions for a new resentencing hearing and to correct the record. However, as we explain below, Blanton's "motions" are actually successive petitions for post-conviction relief that he failed to perfect. Therefore, we dismiss this appeal.
Facts and Procedural History
[¶2] In 2004, the State charged Blanton with three counts of child molesting as Class A felonies and one count of child molesting as a Class C felony. Blanton subsequently filed a motion for discharge pursuant to Indiana Trial Rule 4(C), and the trial court denied that motion on February 14, 2006. Following a February 21, 2006, trial, the jury found Blanton guilty as charged. On May 4, 2006, the trial court sentenced Blanton to thirty-five years for each Class A felony, with ten years suspended on each count, and five years for the Class C felony. The Class A felony sentences were to be served consecutively, and the Class C felony was to be served concurrently. On May 12, 2006, the trial court issued a clarifying order that Blanton's sentence includes probation for life, following his release from incarceration.
[¶3] Blanton appealed his conviction and sentence, asserting insufficient evidence to support the conviction and an inappropriate sentence that should be revised pursuant to Indiana Appellate Rule 7(B). This court affirmed his conviction but held that his aggregate sentence of 105 years was inappropriate. Blanton v. State, No. 53A01-0606-CR-226, 2007 WL 1149994 (Ind.Ct.App. April 19, 2007) ("Blanton I"). We remanded Blanton's case to the trial court for resentencing, with instructions to "sentence Blanton to thirty years on Count I, II[, ] and III and to remove the consecutive disposition of Blanton's sentences and order his aggregate sentence to be thirty years in the Department of Correction." Id. at *4.
[¶4] On remand on October 12, 2007, the trial court resentenced Blanton to an aggregate term of thirty years of imprisonment, per this Court's decision in Blanton I. The trial court also noted, "All other conditions of the sentencing order issued on 5/4/07, [sic] remain in full force and effect." App. at 8.
[¶5] On April 15, 2009, Blanton filed a petition for post-conviction relief ("PCR") in which he alleged that the trial court erred by denying his 2006 motion for discharge and that his trial and appellate counsel were ineffective. We affirmed the post-conviction court's denial of his PCR petition. Blanton v. State, No. 53A04-1410-PC-509, 2015 WL 4515697 (Ind.Ct.App. 2015) ("Blanton II"), trans. denied.
[¶6] On February 24, 2017, Blanton, proceeding pro se, filed in the trial court a motion to correct erroneous sentence in which he asserted: (1) there was a scrivener's error in the October 12, 2007, resentencing order, (2) the order erroneously imposed lifetime probation upon him, (3) he was not afforded counsel or permitted to present evidence at the resentencing hearing, and (4) the resentencing order was ambiguous regarding credit time. State v. Blanton, Case No. 53C05-0404-FA-360. The trial court denied the motion on April 24, 2017. On June 19, 2017, Blanton filed in the trial court a motion for leave to file a belated notice of appeal of the April 24 order, per Indiana Post-Conviction Remedies Rule 2(1). The trial court denied that motion, and Blanton appealed pro se. On February 8, 2018, this court affirmed the denial of the motion to file a belated notice of appeal. Blanton v. State, No. 53A05-1708-CR-1895, 2018 WL 770865 (Ind.Ct.App. Feb. 8, 2018) ("Blanton III").
Neither this document nor the subsequent motion to file a belated notice of appeal were provided in the appendix or referenced by either party in their briefs. Nevertheless, those documents are part of the record on appeal, Ind. Appellate Rule 27, and accessible to this Court via the Odyssey case management system.
[¶7] On June 29, 2021, Blanton filed a pro se petition for successive post-conviction relief in which he alleged his "new grounds which were not included in [his] prior [PCR] petition" were that he was "denied the ability to resolve the conflict between his resentencing order and amended abstract of judgment." App. at 92. This Court denied Blanton's motion in an order dated August 6, 2021.
[¶8] On July 21, 2021, Blanton filed in the trial court a series of motions in which he moved for: (1) a new resentencing hearing on the grounds he was denied counsel; (2) appointment of counsel; (3) amendment of allegedly incorrect entries made in the Chronological Case Summary ("CCS") between June 25, 2004, and May 12, 2006, and (4) amendment of the abstract of judgment to conform with the resentencing order. On August 5, the trial court denied the pending motions. Blanton filed a motion to correct the record on August 12, 2021, which the trial court denied on August 18.
[¶9] On August 17, 2021, Blanton-proceeding pro se-filed a notice of appeal from the trial court's order denying his July 21, 2021, motions. Blanton filed amended notices of appeal on August 31, 2021, and February 16, 2022. In the August 31 amended notice of appeal, Blanton included a copy of the order denying his motion to correct the record. In the February 16 amended notice, Blanton attached an order issued by the trial court pursuant to Appellate Rule 32 in which the trial court stated that correction of the record was not warranted.
Discussion and Decision
[¶10] Indiana's appellate rules create procedures by which those convicted of crimes in Indiana may appeal those convictions and/or sentences. See Ind. Appellate Rules (West 2022). When an issue was unknown at trial or unavailable on direct appeal, those convicted of crimes may pursue at any time an action for post-conviction relief on that issue under the Indiana PCR rules. See Ind. Post-Conviction Rule 1. "[A]ll manner of claims of sentencing errors (other than those that do not require consideration of matters outside the face of the sentencing judgment), are addressed via post-conviction relief proceedings." Young v. State, 888 N.E.2d 1255, 1256 (Ind. 2008) (citing Robinson v. State, 805 N.E.2d 783, 787 (Ind. 2004)).
[¶11] In order to present a PCR claim properly,
a petitioner must follow the Indiana Rules of Procedure for Post-Conviction Remedies. If a petitioner has never sought post-conviction relief in the past, that petitioner must follow the procedures outlined in P-C.R. 1. If the petition is not the first for post-conviction relief a petitioner has filed, that petitioner must follow the procedure outlined in P-C.R. 1(12) for filing successive petitions.Id. at 1256-57. However, a post-conviction petition is not a second or successive petition requiring leave of court unless and until a first petition has been litigated to its conclusion. Currie v. State, 82 N.E.3d 285, 288 (Ind.Ct.App. 2017).
[¶12] To the extent a petitioner seeks to raise new issues, post-conviction, that were not included in his original PCR petition, he must file a request for leave from the Appellate Court to file a successive PCR petition. Bellamy v. State, 765 N.E.2d 520, 522 (Ind. 2002) (citing P-C.R. 1(12)). "When a court encounters an improper successive petition for post-conviction relief, it should dismiss the action." Currie v. State, 82 N.E.3d 285, 287 (Ind.Ct.App. 2017).
[¶13] Here, following remand and resentencing, Blanton filed a PCR petition. That petition was litigated to its conclusion and denied. See Blanton II, 2015 WL 4515697 at *8. Thereafter, Blanton filed a motion to correct the allegedly erroneous resentencing order. That motion was denied, as was his subsequent motion, per P-C.R. 2(1), seeking leave to file a belated notice of appeal of the denial of the motion to correct sentence. See Blanton III, 2018 WL 770865 at *1. Then Blanton filed a petition for permission to file a successive PCR petition attacking the resentencing order once again, and we denied that petition in August of 2021. App. at 94. In an apparent attempt to circumvent the results of the unsuccessful prior PCR actions and decisions regarding his resentencing, Blanton filed motions in the trial court purporting to once again challenge the October 12, 2007, resentencing order. However, in order to challenge that order again, Blanton was required to file in this Court another request for leave to file a successive PCR petition. P-C.R. 1(12). Blanton failed to do so. Therefore, the trial court did not err in denying his improper motions seeking to once more challenge his resentencing, as the issues raised in those motions could only be addressed via a proper request to file a successive PCR petition.
We note that it would have been procedurally preferable for the trial court to have noted that the motions were actually improper petitions for successive post-conviction relief and dismissed them accordingly. See Currie, 82 N.E.3d at 287.
[¶14] Dismissed.
Najam, J., and Bradford, C.J., concur.