      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                               FILED
      regarded as precedent or cited before any                      May 11 2017, 9:08 am

      court except for the purpose of establishing                        CLERK
      the defense of res judicata, collateral                         Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
      estoppel, or the law of the case.


      APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
      David Streeter                                          Curtis T. Hill
      Pendleton, Indiana                                      Attorney General of Indiana

                                                              Jodi Kathryn Stein
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      David Streeter,                                         May 11, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              44A04-1605-CR-1179
              v.                                              Appeal from the LaGrange
                                                              Superior Court
      State of Indiana,                                       The Honorable Lisa M. Bowen-
      Appellee-Plaintiff                                      Slaven
                                                              Trial Court Cause No.
                                                              44D01-0011-CF-49



      May, Judge.


[1]   David Streeter, pro se, appeals the trial court’s denial of his Verified Petition for

      Permission to File Belated Notice of Appeal and For Appointment of Counsel

      Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017     Page 1 of 7
      at County Expense. Because Streeter did not demonstrate he (1) was not at

      fault for the failure to timely file a notice of appeal and (2) was diligent in

      requesting to file a belated direct appeal, the trial court did not err in denying

      his petition for permission to file a belated direct appeal.1 Nor has Streeter

      demonstrated the trial court was required to appoint counsel to assist Streeter

      with his Post-Conviction Rule 2 petition or to hold a hearing prior to denying

      his petition. We therefore affirm.



                                Facts and Procedural History
[2]   Streeter pled guilty on April 3, 2002, to Class A felony child molesting,2 two

      counts of Class C felony child molesting,3 and to being a repeat sexual

      offender,4 in exchange for the State’s agreement to concurrent sentences on the

      three counts of child molesting. On May 20, 2002, the trial court sentenced

      Streeter to fifty years on the Class A felony, to be served concurrent with two

      concurrent eight-year sentences for the Class C felonies and consecutive to a




      1
        Streeter’s brief also provides argument on five issues regarding the merits of his underlying convictions and
      sentence: double jeopardy, inappropriate sentence, ineffective assistance of counsel, the constitutionality of
      his repeat-offender sentence enhancement, and an alleged failure to have him undergo psychological testing.
      However, the only issues before us are those pertinent to whether the trial court erred when denying his
      petition to file a belated notice of appeal, and the merits of any underlying issues are not relevant to that
      determination. See Indiana Post-Conviction Rule 2(1) (defining requirements for filing belated notice of
      appeal, and those requirements do not include demonstration of meritorious issues). Thus, we do not
      address those five issues from Streeter’s brief.
      2
          Ind. Code § 35-42-4-3 (1998).
      3
          Ind. Code § 35-42-4-3 (1998).
      4
          Ind. Code § 35-50-2-14 (1999).


      Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017                  Page 2 of 7
      ten-year enhancement for Streeter being a repeat sexual offender. Thus,

      Streeter’s aggregate sentence was sixty years. At sentencing, Streeter was

      advised of his right to file a direct appeal of his sentence and of his right to

      counsel on that appeal.


[3]   Streeter did not file a direct appeal. In 2006, Streeter filed a Petition for Post-

      Conviction Relief that was denied in 2011, and we affirmed that denial on

      appeal. See Streeter v. State, Cause No. 44A04-1110-PC-640 (Ind. Ct. App. May

      28, 2013), trans. denied. In April 2014, Streeter filed a motion to correct

      erroneous sentence, which was denied by the trial court in August 2014, and we

      affirmed the trial court’s denial in October 2015. Streeter v. State, Cause No.

      44A03-1408-CR-291 (Ind. Ct. App. October 2, 2015), trans. denied.


[4]   On December 28, 2015, Streeter filed the verified petition at issue, claiming he

      was not competent to plead guilty, he had been diligent in pursuing a direct

      appeal, and he was entitled to counsel. The trial court forwarded Streeter’s

      petition to the State Public Defender and, thereafter, the Public Defender filed a

      Notice of Non-Representation. The State objected to Streeter’s requests for

      relief and, on April 22, 2016, the trial court denied his petition.



                                Discussion and Decision
                                        I. Denial of Petition
[5]   Indiana Post-Conviction Rule 2(1) governs belated notice of appeals. It

      provides:


      Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017   Page 3 of 7
              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.


      Defendants who seek relief under this Rule have “the burden of proving by a

      preponderance of the evidence” they: (1) were without fault in the failure to file

      timely, and (2) were diligent in requesting permission to file belated notices of

      appeal. Moshenek v. State, 868 N.E.2d 419, 423-24 (Ind. 2007), reh’g denied.


[6]   A trial court’s decision whether to grant permission to file a belated notice of

      appeal is reviewed for an abuse of discretion. Id. at 424-25. “When the trial

      court holds a hearing, we defer to [its] discretion in weighing the evidence and

      judging witness credibility.” Mead v. State, 875 N.E.2d 304, 307 (Ind. Ct. App.

      2007). However, when no hearing is held, “the only basis for its decision is the

      paper record attached to the petition.” Id. In such a circumstance, our review

      of the trial court’s decision is de novo. Cruite v. State, 853 N.E.2d 487, 490 (Ind.

      Ct. App. 2006), trans. denied. As such, we owe the trial court’s findings “no

      deference.” Amphonephong v. State, 32 N.E.3d 825, 831 (Ind. Ct. App. 2015); see

      also Moshenek, 868 N.E.2d at 424 (“The Court of Appeals owed no deference to


      Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017   Page 4 of 7
      the trial court’s factual determinations because they were based on a paper

      record.”).


[7]   There exists “substantial room for debate as to what constitutes diligence and

      lack of fault” for purposes of Post-Conviction Rule 2. Moshenek, 868 N.E.2d at

      424. Some factors that may be considered are “the defendant’s 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.” Ricks v. State, 898 N.E.2d

      1277, 1280 (Ind. Ct. App. 2009). The trial court determined Streeter had not

      demonstrated he was entitled to file a belated notice of appeal and, based on

      our de novo review of the record, we agree.


[8]   Streeter admits he was advised of his right to file a direct appeal at his

      sentencing hearing. At that time, he was thirty-eight years old and had been

      convicted of at least one other crime. He subsequently filed both a petition for

      post-conviction relief under Post-Conviction Rule 1 and a motion to correct

      erroneous sentence under Post-Conviction Rule 2. Streeter has not provided

      evidence to demonstrate by a preponderance of the evidence that he was not

      responsible for his failure to timely file a notice of appeal.


[9]   Nor has Streeter demonstrated he was diligent in pursuing relief. Factors

      relevant to a diligence inquiry include the overall passage of time, the extent to

      which the defendant was aware of relevant facts, and the degree to which

      delays are attributable to other parties. Moshenek, 868 N.E.2d at 423. “When


      Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017   Page 5 of 7
       the overall time stretches into decades, a belated appeal becomes particularly

       problematic because of the risk that significant problems will be encountered in

       any retrial due to unavailable evidence or witnesses or failing memories.” Id.

       Here, Streeter waited thirteen years to pursue a direct appeal after being advised

       of his right to appeal. His only explanation for that delay is that he was

       pursuing other avenues of relief because that is what other inmates had told him

       to do. In light of the fact the trial court advised him of his right to appeal, we

       find that explanation inadequate to justify a thirteen-year delay.


                                     II. Procedural Challenges
[10]   Finally, we find no merit to Streeter’s claims that, before the trial court could

       deny his petition, it was required to hold a hearing and appoint counsel to assist

       him. Post-Conviction Rule 2 does not require the trial court hold a hearing. See

       P.-C. R. 2(1)(d) (“If a hearing is held . . . it shall be conducted according to Ind.

       Post-Conviction Rule 1(5).”) (emphasis added); Green v. State, 593 N.E.2d 1237,

       1238 (Ind. Ct. App. 1992) (“The rule does not require the court to conduct a

       hearing….”), trans. denied. The trial court referred Streeter’s petition to the State

       Public Defender, who declined to represent him and who does not have a duty

       to represent a defendant if its review of the record leads it to determine the Rule

       “2 petition is not meritorious or in the interest of justice.” Kling v. State, 837

       N.E.2d 502, 508 (Ind. 2005).



                                               Conclusion

       Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017   Page 6 of 7
[11]   Streeter has failed to convince us the trial court committed error when denying

       his petition to file a belated notice of appeal. Accordingly, we affirm.


[12]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017   Page 7 of 7
