In 1997, Abjul K. Johnson pled guilty to robbery as a Class A felony. The plea agreement gave the trial court discretion to impose a sentence within an agreed-upon range and the court sentenced Johnson to 50 years. A plea agreement in which the trial court has discretion over the length of the sentence is referred to as an “open plea.”
Collins v. State,
In late 2000, Johnson filed a pro se petition for post-conviction relief under Indiana Post-Conviction Rule 1. In early 2001, Johnson, now represented by the State Public Defender, amended the petition with a sentencing claim. In 2005, Johnson filed a motion to have the P-C.R. 1 proceeding dismissed without prejudice. In 2006, he filed a petition for permission to file a belated notice of appeal under PC.R. 2. The trial court denied that petition and the Court of Appeals affirmed.
Johnson v. State,
No. 20A03-0710-CR-472, slip op.,
Prior to
Collins,
there was a split in authority over whether the proper procedure to challenge a sentence imposed following an open plea was by means of a direct appeal or by means of collateral review under P-C.R. 1.
Kling v. State,
Kling
dealt with a situation substantially similar to Johnson’s, i.e., at the time
Collins
was decided, both men had P-C.R. 1 proceedings pending that challenged the length of their respective sentences.
Kling
made clear that if the petitioner’s principal objective was to seek sentencing relief, the proper procedure was to dismiss the P-C.R. 1 proceeding and then seek relief under P-C.R. 2.
However, actually receiving permission to file a belated appeal requires that: (1) the failure to file a timely appeal be through no fault of the person seeking permission; and (2) the person seeking-permission be diligent in requesting permission to file a belated appeal. P-C.R. 2(1);
Witt v. State,
The trial court denied Johnson’s petition on grounds that he had not established that he had been without fault in failing to file a timely appeal and had been diligent in requesting belated permission to do so. In reaching this conclusion, the trial court looked at the almost three year period between sentencing in 1997 and the filing of the P-C.R. 1 petition in 2000.
On rehearing in Moshenek, Moshenek’s counsel argued that it was unfair to use the new rule of
Collins
— that a challenge to a sentence imposed following an open plea was required to be made via a direct appeal — to deny Moshenek what he would have been entitled to
pre-Collins
— a challenge to his sentence under P-C.R. 1. That argument was unavailing because Moshenek had never sought to challenge his sentence under P-C.R. 1 in the first place, despite having had 16 years to do so.
Moshenek v. State,
While whether the requisite diligence required by P-C.R. 2 has been shown is a fact-sensitive inquiry that will vary from case to case, we have now seen several categories of persons who have sought permission to file belated appeals of pre-Coi-
lins
sentences imposed following an open plea. One category consists of petitioners who did not challenge their sentences either by means of P-C.R. 1 or P-C.R. 2 until after
Collins
was decided.
Witt,
We grant transfer and remand this case to the trial court with instructions to enter a final judgment granting Johnson’s petition for permission to file a belated appeal. Johnson’s petition did not include a proposed notice of appeal as an exhibit. Accordingly, the time for filing a notice of appeal is governed by Appellate Rule 9(A).
Notes
. The amendment explicitly adding the sentencing claim was filed six months later.