Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                                  GREGORY F. ZOELLER
Marion County Public Defender Agency                Attorney General of Indiana
Indianapolis, Indiana
                                                    RICHARD C. WEBSTER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                                                           May 30 2013, 8:40 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

JAMES KING,                                         )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )     No. 49A02-1210-CR-858
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Marc T. Rothenberg, Judge
                              Cause No. 49F09-1011-FD-87488



                                           May 30, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       James King appeals the trial court’s denial of his petition for permission to file a

belated notice of appeal. Finding that he failed to demonstrate by a preponderance of

evidence that he was not at fault in failing to file a timely notice of appeal, we affirm.

                              Facts and Procedural History

              In July 2012, a jury convicted James King of class D felony battery by bodily

waste, class B misdemeanor disorderly conduct, and class B misdemeanor public

intoxication, all stemming from a November 2010 incident in which the inebriated King spat

in the face of an Indianapolis police officer. King subsequently admitted to being a habitual

offender, and on August 7, 2012, the trial court sentenced him to a six-year term. At the

close of the sentencing hearing, the following colloquy occurred:

       THE COURT:            And at this time the court advised you that you are
                             entitled to appeal or file a motion to correct error. A
                             motion to correct error must be filed within thirty days.
                             That for an appeal a praecipe must [be] filed within thirty
                             days. And the court will appoint counsel at public
                             expense if you cannot afford an attorney. Do you wish to
                             appeal or file a motion to correct errors?

       MR. KING:             No audible response.

       THE COURT:            No. Okay. Thank you. Anything further [defense
                             counsel]?

       [COUNSEL]:            You don’t want to appeal at this point?

       ….

       THE COURT:            All right. That’s all.

       MR. KING:             (Unintelligible).

                                                 2
       [COUNSEL]:              If you change your mind ….

       [END OF TRANSCRIPT.]

Tr. at 139-40.

       On September 6, 2012, King mailed a letter to his trial counsel expressing his desire to

appeal. The letter arrived at counsel’s office on September 7, 2012, but counsel did not read

it until September 21. That same day, counsel notified the Indiana Public Defender Agency’s

Appellate Division. On October 2, 2012, the public defender’s office filed King’s verified

petition for permission to file a belated notice of appeal. The trial court summarily denied

the petition, as well as King’s motion to reconsider. King now appeals. Additional facts will

be provided as necessary.

                                    Discussion and Decision

       King contends that the trial court erred in denying his petition for permission to file a

belated notice of appeal. Where, as here, the trial court does not hold a hearing before

denying the defendant’s petition for permission to file a belated appeal, we owe no deference

to its factual determinations because they are based on a paper record. Id. Moshenek v.

State, 868 N.E.2d 419, 424 (Ind. 2007). Therefore, we review its decision de novo. Bosley v.

State, 871 N.E.2d 999, 1002 (Ind. Ct. App. 2007).

       Indiana Post-Conviction Rule 2 governs belated appeals and states in pertinent part,

              (a) Required Showings. 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;

                                                 3
              (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.

       ….

               (c) Factors in granting or denying permission. 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 permission.

       “The defendant bears the burden of proving by a preponderance of the evidence that

he was without fault in the delay of filing [a timely notice of appeal] and was diligent in

pursuing permission to file a belated motion to appeal.” Moshenek, 868 N.E.2d at 422-23.

The “diligence” showing refers to the filing of a belated appeal, and the “lack of fault”

showing refers to the filing of a timely appeal. Ind. Post-Conviction Rule 2(a)(3), -(2).

Because there are no set standards for determining fault or diligence, each case turns on its

own facts. Moshenek, 868 N.E.2d at 423. Relevant factors in determining a particular

defendant’s fault and diligence include his “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.

       Indiana Appellate Rule 9(A)(1) states that “[a] party initiates an appeal by filing a

Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final

Judgment.” King’s argument focuses on what happened thirty days after the final judgment

and thereafter. In other words, he asserts that he was diligent in seeking the belated appeal


                                              4
and attributes delays to other parties, i.e., his trial counsel for causing a two-week delay by

failing to read his letter and the public defender agency for waiting an additional eleven days

to file his belated appeal petition. He also points out that the overall passage of time between

the deadline for a timely appeal and the date that he requested a belated appeal was “slight.”

Reply Br. at 4.

       We agree that the record supports King’s arguments with respect to diligence in

seeking a belated appeal. However, diligence is not the only required showing. Post-

Conviction Rule 2(a)(2) also requires that he establish his lack of fault in failing to file a

timely appeal in the first place. Simply put, he has not done so. The record is devoid of any

evidence concerning circumstances that would have precluded him from contacting his trial

counsel until right before the expiration of the thirty-day period for filing a timely appeal.

His only argument with respect to those first four weeks is that the trial court provided

outdated information regarding the process for filing a timely appeal.

       Applying the Moshenek factors to King’s case, we find a sixty-year-old man with a

criminal history that spans four decades and includes roughly thirty convictions, ten of which

are felony convictions, one of which is for murder. He has been in and out of prison

throughout his adult life and has obtained two associate’s degrees. His pleas for leniency

during sentencing indicate that he is very familiar with the legal system and the procedural

remedies available to him. Despite the trial court’s statement about a praecipe, which is no

longer filed to initiate an appeal,1 it is obvious that the court made King aware of both his


       1
           Indiana Appellate Rule 9(A)(4) states, “The praecipe for preparation of the Record is abolished.”

                                                     5
right to appeal and the thirty-day deadline for doing so.

        In his petition, King states that he “attempted to contact trial counsel within thirty days

of his sentence to request a direct appeal.” Appellant’s App. at 113. He specifically claims

that he penned a letter to his trial counsel on September 4, 2012, and that it was postmarked

September 6, 2012, the last day for a direct appeal. This explains the last two days of the

thirty-day direct appeal period, but the petition contains no explanation regarding the first

four weeks of the period. Even in his appellant’s brief, he offers no explanation for his

failure to act during the first four weeks of his direct appeal period. Instead, he argues that

based on the “prison mailbox rule,” he would have timely filed an appeal had he sent a pro se

filing to the trial court instead of counsel.2 That would be accurate if he had filed a notice of

appeal that conformed to the Indiana Appellate Rules and not merely sent a letter expressing

his desire to appeal.

        In Sewell v. State, 939 N.E.2d 686, 687 (Ind. Ct. App. 2010), another panel of this

Court dismissed a defendant’s appeal despite the trial court’s receipt of a letter from the

defendant within the thirty-day period and the trial court’s decision to purportedly grant the

defendant additional time to file a timely appeal under Appellate Rule 9. Specifically, the

Sewell court found the defendant’s letter deficient to preserve his right to appeal because the

letter did not “(1) specify whether the appealed judgment was a final judgment or an

interlocutory order, (2) designate the court to which appeal was sought, (3) direct the trial


        2
           See Lawrence v. State, 915 N.E.2d 202, 206 (Ind. Ct. App. 2009) (“prison mailbox rule” provides
that pro se filings from incarcerated litigants are considered filed at time they are delivered to prison authorities
for forwarding to court), trans. denied (2010).


                                                         6
court clerk to assemble the record, or (4) contain a request for a transcript. See App. R.

9(F).” Id. at 686. Likewise, King’s letter to counsel did not contain the information required

to preserve his right to appeal. As such, the prison mailbox rule would not have operated in

his favor even if he had mailed the same letter directly to the trial court.

       In sum, King failed to file a timely notice of appeal and has failed to prove what

action, if any, that he took during the first four weeks of the direct appeal period to secure

that appeal. Instead, his petition and briefs merely indicate that shortly before the direct

appeal deadline, he sent a letter (not a notice of appeal) to counsel (not to the trial court). He

did not use a means of communication that would have confirmed counsel’s immediate

receipt and knowledge of his desire to appeal, and he has not demonstrated that he made any

earlier attempt to reach counsel by the same or any other means. Thus, he has not met his

burden of establishing by a preponderance of evidence that his failure to file a timely appeal

was not his fault. As a result, we find no error in the trial court’s denial of his petition for

permission to file a belated appeal. Accordingly, we affirm.

       Affirmed.

ROBB, C.J., and FRIEDLANDER, J., concur.




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