                                                                 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                MEMORANDUM DECISION - NOT FOR PUBLICATION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
                                            3
              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

                                              4
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


                                              5
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

                                              6
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).
                                                      7
