                                                                                 FILED
                                                                             Oct 29 2018, 9:34 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                           Curtis T. Hill, Jr.
      Public Defender of Indiana                                 Attorney General of Indiana

      Mark S. Koselke                                            Kelly A. Loy
      Deputy Public Defender                                     Supervising Deputy Attorney
      Indianapolis, Indiana                                      General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Eran D. Haddock,                                           October 29, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-1362
              v.                                                 Appeal from the Huntington
                                                                 Superior Court
      State of Indiana,                                          The Honorable Jennifer E.
      Appellee-Plaintiff.                                        Newton, Judge
                                                                 Trial Court Cause No.
                                                                 35D01-1609-PC-10



      Najam, Judge.


                                        Statement of the Case
[1]   Eran D. Haddock appeals the trial court’s denial of his petition for permission

      to file a belated notice of appeal. Haddock presents two issues for our review,


      Court of Appeals of Indiana | Opinion 18A-CR-1362 | October 29, 2018                           Page 1 of 11
      which we consolidate and restate as whether the trial court erred when it denied

      his petition.


[2]   We reverse and remand with instructions.


                                  Facts and Procedural History
[3]   On March 13, 2015, the State charged Haddock with two counts of dealing in

      cocaine or a narcotic drug, as Level 3 felonies. Thereafter, on January 5, 2016,

      the State and Haddock entered into a plea agreement. Pursuant to the terms of

      the plea agreement, Haddock agreed to plead guilty to one count of dealing in a

      narcotic drug, as a Level 3 felony. In the plea agreement, Haddock provided a

      factual basis for his guilty plea. In particular, Haddock admitted that he had

      sold seven hydromorphone pills to a confidential informant and that the offense

      took place “in the physical presence of a child less than eighteen (18) years of

      age, when I knew the child was present and might be able to see or hear the

      offense.” Appellant’s App. Vol. II at 36. In exchange for Haddock’s guilty

      plea, the State agreed to dismiss the second count.


[4]   Haddock’s plea agreement included a provision that stated: “I understand that

      I have a right to appeal my sentence. As a condition of entering into this plea

      agreement, I hereby knowingly and voluntarily waive my right to appeal my

      sentence so long as the Judge sentences me within the terms of my plea

      agreement.” Id. The plea agreement left sentencing to the discretion of the trial

      court.



      Court of Appeals of Indiana | Opinion 18A-CR-1362 | October 29, 2018     Page 2 of 11
[5]   The trial court held a hearing on Haddock’s guilty plea. At the beginning of the

      hearing, the court played a video that informed Haddock of his rights.

      Specifically, the court advised Haddock that, if he were to go to trial and be

      found guilty, he would have the right to appeal that conviction. But, by

      entering a plea of guilty, Haddock was “giving up [his] right to appeal.” Id. at

      47. Haddock also testified that he had gone over his guilty plea and the waiver

      of rights with his attorney and that he understood those documents.


[6]   Thereafter, on February 2, 2016, the trial court held a sentencing hearing. At

      the conclusion of the hearing, the trial court stated: “The criminal history

      shows two (2) other felony offenses, eight (8) prior[] misdemeanor offenses, five

      (5) petitions to revoke. The factual basis for this particular offense specifically

      includes that it took place in the physical presence of a child less than eighteen

      (18) years of age.” Id. at 63. The court then sentenced Haddock to an

      aggravated sentence of fourteen years, with twelve years executed and two

      years suspended to probation.


[7]   On September 12, 2016, Haddock, pro se, filed a petition for post-conviction

      relief in which he alleged that he had not received effective assistance of trial

      counsel. Thereafter, on September 29, a Deputy Public Defender filed an

      appearance on Haddock’s behalf. But, on the same day, that attorney filed a

      notice in which he indicated that, due to his caseload, he could not currently

      investigate Haddock’s claims. As a result, the court stayed the post-conviction

      proceedings.



      Court of Appeals of Indiana | Opinion 18A-CR-1362 | October 29, 2018       Page 3 of 11
[8]   Then, on January 8, 2018, a second Deputy Public Defender, Mark Koselke,

      filed an appearance on Haddock’s behalf. On April 30, Haddock, with counsel,

      filed a petition for permission to file a belated notice of appeal. In the petition,

      Haddock asserted that his sentence was illegal because the trial court had used

      an improper aggravator when it sentenced him. Specifically, Haddock asserted

      that the trial court’s use of the fact that Haddock had committed the offense

      while in the presence of a child was an improper aggravator because that was

      also an element of the offense to which Haddock had pleaded guilty.1 Haddock

      included as attachments to his petition his plea agreement and the transcripts

      from the guilty plea and sentencing hearings. Haddock also included an

      affidavit in which he stated: “I was previously informed that I had waived my

      right to appeal the sentence. The Judge informed me at my guilty plea hearing

      that there was a provision in the plea that waived my right to appeal the

      sentence.” Appellant’s App. Vol. II at 66. But he further stated that his trial

      counsel did not advise him that the “waiver of appellate rights did not apply if

      the Judge failed to follow sentencing procedure and guidelines. I first learned

      of this option on February 27, 2018, at a client conference with Deputy Public

      Defender Mark Koselke.” Id. at 66-67. The trial court denied Haddock’s

      petition without a hearing. This appeal ensued.




      1
        The offense of dealing in cocaine or a narcotic drug is elevated from a Level 5 felony to a Level 3 felony if
      the amount of the drug involved is at least one gram but less than five grams and “an enhancing circumstance
      applies[.]” Ind. Code § 35-48-4-1(d)(2) (2018). One enhancing circumstance, which was alleged here, is
      when a person commits the offense in the physical presence of a child less than eighteen years of age,
      knowing that the child was present and might be able to see or hear the offense. I.C. § 35-48-1-16.5(6).

      Court of Appeals of Indiana | Opinion 18A-CR-1362 | October 29, 2018                              Page 4 of 11
                                       Discussion and Decision
[9]    Haddock appeals the trial court’s denial of his petition for permission to file a

       belated notice of appeal. Indiana Post-Conviction Rule 2 allows a defendant to

       seek permission to file a belated notice of appeal. In particular, Section 1(a) of

       that rule provides:


               An eligible defendant convicted after a trial or plea of guilty may
               petition the trial court for permission to file a belated notice of
               appeal of the conviction or sentence if[:]


                        (1) The defendant failed to file a timely notice of appeal;


                        (2) The failure to file a timely notice of appeal was not due
                            to the fault of the defendant; and


                        (3) The defendant has been diligent in requesting
                            permission to file a belated notice of appeal under this
                            rule.


       Ind. Post-Conviction Rule 2(1)(a). “If the trial court finds that the requirements

       of Section 1(a) are met, it shall permit the defendant to file the belated notice of

       appeal. Otherwise, it shall deny the petition.” P-C.R. 2(1)(c) (emphasis added).


[10]   “The defendant bears the burden of proving by a preponderance of the evidence

       that he was without fault in the delay of filing and was diligent in pursuing

       permission to file a belated motion to appeal.” Moshenek v. State, 868 N.E.2d

       419, 422-23 (Ind. 2007). Usually, “[t]he decision whether to grant permission

       to file a belated notice of appeal . . . is within the sound discretion of the trial


       Court of Appeals of Indiana | Opinion 18A-CR-1362 | October 29, 2018            Page 5 of 11
       court.” Id. at 422. But where, as here, the trial court did not hold a hearing and

       ruled on a paper record, we will review the denial of the petition de novo. See

       Baysinger v. State, 835 N.E.2d 223, 224 (Ind. Ct. App. 2005).


[11]   Haddock contends that the trial court erred when it denied his request for a

       belated notice of appeal because his failure to timely file a notice of appeal was

       not due to any fault of his own and because he had been diligent in requesting

       permission to file the belated notice of appeal. However, before we address

       Haddock’s arguments, we must first address the State’s contention that

       Haddock is not eligible under our post-conviction rules to file a belated notice

       of appeal.


                                                     Eligibility

[12]   Post-Conviction Rule 2 expressly applies only to an “eligible defendant,” which

       is “a defendant who, but for the defendant’s failure to do so timely, would have

       the right to challenge on direct appeal a conviction or sentence after a trial or

       plea of guilty by filing a notice of appeal, filing a motion to correct error, or

       pursuing an appeal.” P-C.R. 2. Specifically, the State contends that Haddock

       is not an eligible defendant “because he cannot show that he had the right to

       directly appeal his sentence” since Haddock waived the right to appeal his

       sentence pursuant to the terms of the plea agreement. Appellee’s Br. at 9.


[13]   It is well settled that a defendant can waive his right to appeal a sentence. See

       Crider v. State, 984 N.E.2d 618, 623 (Ind. 2013). However, a defendant’s waiver

       of appellate rights is only valid if the sentence is imposed in accordance with the

       Court of Appeals of Indiana | Opinion 18A-CR-1362 | October 29, 2018        Page 6 of 11
       law. See id. at 625. Thus, if a sentence imposed is illegal, and the defendant

       does not specifically agree to the sentence, the waiver-of-appeal provision is

       invalid. See id.


[14]   Under the State’s theory on appeal, the only way to determine whether

       Haddock is an eligible defendant under Post-Conviction Rule 2 is to analyze

       whether his sentence is illegal and, thus, not subject to the waiver provision of

       his plea agreement. But that is the substance of the issue Haddock seeks to raise

       on appeal by way of his belated notice of appeal. In other words, the State asks

       us to address the merits of Haddock’s putative belated appeal in order to

       determine that he is not eligible to be heard on the merits of his belated appeal.

       We decline to adopt the State’s circular reasoning.


[15]   At this stage in the proceedings, we are unwilling to place the burden on

       Haddock to argue the merits of his putative belated appeal. Rather, we hold

       that Haddock would have had the right to raise in a timely appeal the issue of

       whether his sentence is illegal. E.g., id. Accordingly, as that is the issue

       Haddock seeks to raise in his putative belated appeal, we hold that Haddock is

       an eligible defendant pursuant to Post-Conviction Rule 2.


[16]   Because we hold that Haddock is eligible under Post-Conviction Rule 2 to seek

       a belated notice of appeal, we next address whether the trial court erred when it

       concluded that Haddock had not demonstrated that the failure to timely file a

       notice of appeal was not due to any fault of his and that he was diligent in

       requesting permission to file a belated notice of appeal.


       Court of Appeals of Indiana | Opinion 18A-CR-1362 | October 29, 2018       Page 7 of 11
[17]   The Indiana Supreme Court has previously stated that “[t]here is substantial

       room for debate as to what constitutes diligence and lack of fault on the part of

       the defendant as those terms appear in Post-Conviction Rule 2.” Moshenek, 868

       N.E.2d at 424. Some factors that may be considered are “‘the defendant’s level

       of awareness of his procedural remedy, age, education, familiarity with the

       legal system, whether the defendant was informed of his appellate rights, and

       whether he committed an act or omission which contributed to the delay.’” Id.

       at 423 (quoting Land v. State, 640 N.E.2d 106, 108 (Ind. Ct. App. 1994)). We

       first consider whether Haddock has established that his failure to timely file a

       notice of appeal was not due to any fault of his.


                                                         Fault

[18]   Here, Haddock signed a plea agreement that indicated that he waived his right

       to appeal his sentence. And, Haddock indicated at his guilty plea hearing that

       he had carefully gone over the plea agreement with his attorney. Accordingly,

       Haddock believed that he had waived his right to appeal his sentence. Further,

       at his sentencing hearing, the trial court did not advise Haddock of his right to

       appeal an illegal sentence. And it is well settled that “[t]he fact that a trial court

       did not advise defendant about this right can establish that the defendant was

       without fault in the delay of filing a timely appeal.” Id. at 424.


[19]   However, the State contends that “Haddock has failed to show that the failure

       to timely file was not his fault” because Haddock could have consulted with his

       trial counsel “to determine whether the sentencing was ‘within the terms of the

       plea agreement.’” Appellee’s Br. at 11. We acknowledge the fact that Haddock
       Court of Appeals of Indiana | Opinion 18A-CR-1362 | October 29, 2018        Page 8 of 11
       was represented by an attorney at his sentencing hearing. But that attorney

       never informed Haddock of his right to appeal an illegal sentence. Indeed, it

       was that same attorney who advised Haddock of the rights he had waived when

       he signed the plea agreement. Contrary to the State’s assertion, we will not

       fault Haddock for not knowing of his right to appeal an illegal sentence simply

       because he was represented by an attorney at his sentencing hearing.


[20]   As discussed above, Haddock believed he had waived the right to appeal his

       sentence because of the waiver provision in his plea agreement and because

       neither the trial court nor his trial counsel informed Haddock that he had the

       right to appeal an illegal sentence. And it was not until two years later, when

       Haddock met with his new attorney on February 27, 2018, that Haddock

       learned that he had the option to appeal his sentence on the ground that the

       sentence was illegal. Accordingly, the trial court erred when it concluded that

       Haddock had not shown that his failure to timely file a notice of appeal was not

       due to his own fault.


                                                      Diligence

[21]   We next address whether Haddock has established that he was diligent in

       requesting permission to file a belated notice of appeal. There are several

       factors to consider in order to determine if a defendant was diligent in seeking a

       belated appeal. See Moshenek, 868 N.E.2d at 424. Those factors include the

       overall passage of time, the extent to which the defendant was aware of the

       relevant facts, and the degree to which delays are attributable to other parties.

       Id.
       Court of Appeals of Indiana | Opinion 18A-CR-1362 | October 29, 2018      Page 9 of 11
[22]   Here, just over two years passed between the date the trial court sentenced

       Haddock and the date he filed his petition for permission to file a belated notice

       of appeal. But, as discussed above, he did not become aware of the fact that he

       could appeal his sentence as an illegal sentence until he met with Koselke in

       February 2018. Then, once Haddock learned that he could appeal his sentence,

       only two months passed before he filed his petition. Because Haddock filed his

       petition within a reasonable time after he had learned of his right to appeal his

       sentence, we hold that the trial court erred when it concluded that Haddock had

       not met his burden to show that he was diligent in requesting permission to file

       a belated notice of appeal.2


                                                        Conclusion

[23]   In sum, Haddock is an “eligible defendant” pursuant to Post-Conviction Rule 2

       because he would have had the right to challenge his purportedly illegal

       sentence in a timely appeal notwithstanding the waiver provision of his plea

       agreement. Further, the undisputed facts show that Haddock’s failure to file a

       timely notice of appeal was not due to his own fault and that he was diligent in




       2
         The State contends that Haddock was not diligent in pursuing his belated appeal because he did not
       challenge his sentence in his petition for post-conviction relief. But the Indiana Supreme Court has held that
       a challenge to a sentence imposed after an open plea cannot be raised in a petition for post-conviction relief.
       See Collins v. State, 817 N.E.2d 230, 233 (Ind. 2004). Rather, “the proper procedure for an individual who has
       plead guilty in an open plea to challenge the sentence imposed is to file a direct appeal or, if the time for filing
       a direct appeal has run, to file an appeal under [Post-Conviction Rule] 2.” Id. Thus, even if Haddock had
       known of his right to challenge an illegal sentence when he filed his petition for post-conviction relief,
       Haddock would not have been able to raise that issue in his petition. And Haddock followed the proper
       procedure to challenge his sentence by filing an appeal under Post-Conviction Rule 2 within a reasonable
       time after he learned of his right to appeal his sentence.

       Court of Appeals of Indiana | Opinion 18A-CR-1362 | October 29, 2018                                 Page 10 of 11
       requesting permission to file a belated notice of appeal. As such, the trial court

       erred when it denied his petition to file a belated notice of appeal. We reverse

       the trial court’s judgment and remand with instructions for the trial court to

       grant Haddock’s petition for permission to file a belated notice of appeal.3


[24]   Reversed and remanded with instructions.


       Crone, J., and Pyle, J., concur.




       3
           We express no opinion on the merits of Haddock’s direct appeal.


       Court of Appeals of Indiana | Opinion 18A-CR-1362 | October 29, 2018     Page 11 of 11
