ATTORNEY FOR APPELLANT                                        ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                           Steve Carter
Indianapolis, Indiana                                         Attorney General of Indiana

                                                              Michael Gene Worden
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana
______________________________________________________________________________

                                                In the
                             Indiana Supreme Court
                             _________________________________

                                     No. 71S03-0706-CR-242

BRYANT T. ROGERS,
                                                              Appellant (Defendant below),

                                                   v.

STATE OF INDIANA,
                                                       Appellee (Plaintiff below).
                             _________________________________

             Appeal from the St. Joseph Superior Court, No. 71D02-0109-CF-00398
                           The Honorable John M. Marnocha, Judge
                           _________________________________

     On Petition To Transfer from the Indiana Court of Appeals, No. 71A03-0603-CR-134
                          _________________________________

                                              June 20, 2007


Boehm, Justice.

       On March 27, 2002, Bryant T. Rogers pleaded guilty to one count of class A felony at-
tempted robbery. The plea agreement set Rogers’s minimum sentence at twenty-five years, and
the parties were permitted to argue the other terms of the sentence. The plea agreement stated,
“the Defendant will be giving up . . . the right to appeal the conviction and sentence to the Indi-
ana Court of Appeals and the Indiana Supreme Court.” Before accepting the plea, the trial court
advised Rogers that he would give up the right to appeal his conviction, but Rogers was not told
that he had a right to appeal his sentence.
       At the time of Rogers’s crime, the presumptive sentence for a class A felony was thirty
years. No more than twenty years could be added for aggravating circumstances, and no more
than ten years subtracted for mitigating circumstances. Ind. Code § 35-50-2-4 (2000). At the
sentencing hearing on April 29, 2002, the trial court found four mitigating factors: Rogers’s re-
morse, his guilty plea, his age, and his contacts with family and friends in the community. It
then found five aggravating factors: the nature and circumstances of the offense, the use of a
handgun during the offense, Rogers’s juvenile adjudication for resisting law enforcement, the
fact that Rogers was on probation through juvenile court at the time of the offense, and Rogers’s
expulsion from high school for threatening a person. After finding that the aggravators out-
weighed the mitigators, the trial court sentenced Rogers to forty-four years.

       Rogers did not file a timely appeal. On November 29, 2005, Rogers petitioned to file a
belated notice of appeal under Post-Conviction Rule 2, which the trial court granted. Rogers ar-
gues that (1) the trial court abused its discretion in sentencing him because the sentencing state-
ment was defective, the record does not support the trial court’s finding of aggravating circum-
stances, and the mitigating circumstances offset the aggravating circumstances and that (2) his
sentence is invalid under Blakely v. Washington, 542 U.S. 296 (2004) because the sentence was
based on aggravating factors that were neither admitted by the defendant nor found by a jury.
The Court of Appeals held that the trial court did not abuse its discretion in sentencing Rogers
and that Rogers’s sentence was valid under Blakely because one of the two aggravating factors
used to enhance Rogers’s sentence was admitted by Rogers. Rogers v. State, 860 N.E.2d 929
(Ind. Ct. App. 2007) (unpublished). The Court of Appeals entertained Rogers’s Blakely claim
without discussing whether Blakely applied to Rogers’s Post-Conviction Rule 2 belated appeal.

       We agree with the outcome that the Court of Appeals reached but grant transfer to ad-
dress the applicability of Blakely to Rogers’s belated appeal. For the reasons explained in
Gutermuth v. State, No. 10S01-0608-CR-306, ___ N.E.2d ___ (Ind. June 20, 2007), also decided
today, Blakely does not apply to a Post-Conviction Rule 2 belated appeal challenging a pre-
Blakely sentence. Accordingly, Rogers’s Blakely claim presents no issue in this appeal. We
summarily affirm the Court of Appeals as to the remaining issues. Ind. Appellate Rule 58(A).




                                                 2
                                    Conclusion

Transfer is granted, and the trial court’s sentence is affirmed.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.




                                          3
