MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                   Oct 18 2019, 8:05 am

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
George A. Foote, Jr.                                     Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

George A. Foote, Jr.,                                    October 18, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-CR-481
        v.                                               Appeal from the Greene Circuit
                                                         Court
State of Indiana,                                        The Honorable Erik C. Allen,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         28C01-0710-FA-172



Darden, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-481 | October 18, 2019                      Page 1 of 9
                                          Statement of the Case
[1]   George A. Foote, Jr. appeals the trial court’s denial of his motion for

      permission to file a belated notice of appeal. We affirm.


                                                         Issue
[2]   Foote presents one issue for our review, which we restate as: whether the trial

      court erred by denying his motion for permission to file a belated notice of

      appeal.


                                   Facts and Procedural History
[3]   In 2008, a jury found Foote guilty of two counts of child molesting, as Class A
                   1
      felonies, and two counts of incest, one as a Class C felony and the other as a
                            2
      Class B felony. He initiated a direct appeal of his convictions but later filed a

      voluntary motion to dismiss the appeal so that he could pursue relief in
                                                                     3
      accordance with the Davis/Hatton procedure. This Court granted Foote’s




      1
          Ind. Code § 35-42-4-3 (1998).
      2
          Ind. Code § 35-46-1-3 (1994).
      3
        “The Davis/Hatton procedure involves a termination or suspension of a direct appeal already initiated, upon
      appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to be pursued in the
      trial court. Peaver v. State, 937 N.E.2d 896, 897 n.1 (Ind. Ct. App. 2010), trans. denied. If, after a full
      evidentiary hearing, the post-conviction court denies the petition, the appeal can be reinstated. Slusher v.
      State, 823 N.E.2d 1219, 1222 (Ind. Ct. App. 2005). Thus, in addition to the issues initially raised in the direct
      appeal, the issues litigated in the post-conviction relief proceeding can also be raised. Id. That way, a full
      hearing and record on the issue will be included in the appeal. Id. If the post-conviction relief petition is
      denied after a hearing, and the direct appeal is reinstated, then the direct appeal and the appeal of the denial
      for post-conviction relief are consolidated. Id.” Foote v. State, No. 28A04-1102-PC-140, slip op. *1 n.3 (Ind.
      Ct. App. Dec. 30, 2011).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-481 | October 18, 2019                      Page 2 of 9
      motion to dismiss, and, thereafter, he filed three separate petitions for post-

      conviction relief. After a hearing on the petitions, the post-conviction court

      issued findings and conclusions and denied Foote’s petitions. Foote appealed

      the trial court’s denial, and, in a memorandum decision, this Court affirmed the

      denial of post-conviction relief on the single issue of whether Foote was denied

      effective assistance of trial counsel. See Foote v. State, No. 28A04-1102-PC-140

      (Ind. Ct. App. Dec. 30, 2011) (“Foote I”). In its decision, the Court explained

      the Davis/Hatton procedure, including the fact that if post-conviction relief is

      denied, the direct appeal can be reinstated and consolidated with the appeal of

      the denial of post-conviction relief. However, Foote’s direct appeal was not

      reinstated, and his appeal in Foote I concerned only the denial of post-conviction

      relief. The Court specifically noted in its decision that “Foote raises no issue on

      direct appeal.” Id. at *1.


[4]   Subsequently, in October 2015, Foote filed a successive petition for post-

      conviction relief claiming that he received ineffective assistance of appellate

      counsel due to counsel’s failure to reinstate Foote’s direct appeal in order to

      argue that he was improperly sentenced. The post-conviction court denied

      Foote’s successive petition after a hearing, and Foote appealed. In another

      memorandum decision, this Court affirmed the denial of Foote’s successive

      petition for post-conviction relief. See Foote v. State, 28A01-1607-PC-1726 (Ind.

      Ct. App. Dec. 27, 2016) (“Foote II”). The Court explained that, even if Foote’s

      appellate counsel had raised the sentencing issue Foote claimed should have

      been raised in a direct appeal, he would not have prevailed on the merits. As a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-481 | October 18, 2019   Page 3 of 9
      result, the Court concluded that his appellate counsel did not render ineffective

      assistance by failing to raise issues on direct appeal.


[5]   Foote then petitioned for rehearing of Foote II. The Court granted Foote’s

      petition and issued a memorandum decision on rehearing. Foote v. State, No.

      28A01-1607-PC-1726 (Ind. Ct. App. April 5, 2017) (“Foote III”). In Foote III,

      the Court noted that its decision in Foote II addressed the issue of whether

      Foote’s appellate counsel was ineffective for failing to raise issues on appeal and

      that it was now granting rehearing for the limited purpose of addressing Foote’s

      alternative claim that his appellate counsel was ineffective for denying access to an

      appeal.


[6]   In support of his allegation on rehearing that his appellate counsel denied him

      access to an appeal by failing to reinstate his direct appeal, Foote cited to Dodd

      v. Knight, 533 F. Supp. 2d 844 (N.D. Ind. 2008). In its decision on rehearing,

      the Court distinguished Dodd from Foote’s case because Foote presented no

      argument that he had directed his appellate counsel to pursue a direct appeal

      and because there was no indication that his appellate counsel believed there

      was a viable claim to raise on direct appeal but simply failed to follow through.

      In making this determination, the Court specifically noted the testimony of

      Foote’s appellate counsel that “post-conviction relief was Foote’s best chance

      for relief because he did not see any ‘just absolutely . . . powerful direct appeal

      issues.’” Foote III at *2 (quoting P-CR Tr. p. 79). The court concluded by

      declaring that this is not a case in which appellate counsel failed to prosecute an



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-481 | October 18, 2019   Page 4 of 9
      appeal but rather a situation where “appellate counsel made a strategic decision

      to raise certain issues in the consolidated appeal.” Foote III at *2.


[7]   Foote continued to file motions with the courts. In December 2017, he filed a

      motion to modify his sentence, which the trial court denied in January 2018.

      Foote then filed with this Court in October 2018 a “Motion for Belated

      Perfection of Appeal,” which the Court denied. See Foote v. State, 18A-CR-2475

      (Ind. Ct. App. Oct. 26, 2018).


[8]   Finally, in November 2018, Foote filed with the trial court a motion for

      permission to file a belated notice of direct appeal. The State filed a response in

      opposition to Foote’s request, and the trial court held a hearing on the matter.

      The trial court subsequently denied Foote’s motion for permission to file a

      belated notice of appeal. This appeal ensued.


                                   Discussion and Decision
[9]   Foote appeals the trial court’s denial of his motion 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;



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-481 | October 18, 2019   Page 5 of 9
               (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.


       “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.” P-C.R. 2(1)(c).


[10]   A trial court’s ruling on a petition for permission to file a belated notice of

       appeal is reviewed for an abuse of discretion. Cole v. State, 989 N.E.2d 828, 830

       (Ind. Ct. App. 2013), trans. denied. The burden is on the defendant to prove 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 notice of appeal.

       Haddock v. State, 112 N.E.3d 763, 766 (Ind. Ct. App. 2018), trans. denied. As

       there are no set standards of fault or diligence, each case turns on its own facts.

       Moshenek v. State, 868 N.E.2d 419, 423 (Ind. 2007). 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), trans. denied). Because the determinations of

       fault and diligence are fact sensitive, we give substantial deference to the trial

       court’s ruling because it is in a better position to weigh evidence, assess the



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-481 | October 18, 2019   Page 6 of 9
       credibility of witnesses, and draw inferences. Moshenek, 868 N.E.2d at 423,

       424.


[11]   Foote contends that the trial court erred when it denied his request to file a

       belated notice of appeal because the 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.


[12]   We first note that Foote disregards Sub-section 1(a)(1), which requires that the

       defendant failed to timely file a notice of appeal. Foote, by counsel, did in fact

       file a timely notice of appeal on November 17, 2008. However, counsel then

       elected to dismiss the appeal to pursue remedies utilizing the Davis/Hatton

       procedure. As evidenced by his testimony, Foote’s counsel subsequently made

       the strategic decision not to reinstate the appeal.


[13]   Sub-sections 1(a)(2) and (3) of Post-Conviction Rule 2 concern a defendant’s

       fault and diligence. At the hearing on Foote’s motion for permission to file a

       belated notice of appeal, the court inquired as to when he learned that his direct

       appeal had not been reinstated. Foote indicated he realized there was no direct

       appeal at the end of 2011 or early 2012, soon after Foote I was issued in

       December 2011. Tr. Vol. II, pp. 9-10, 12. Further, we observe, as did the panel

       in Foote III, that Foote does not claim he directed his counsel to reinstate his

       direct appeal. Moreover, although Foote knew of the status of his direct appeal

       in late 2011 or early 2012, he did not request permission to file a belated notice

       of appeal until November 2018.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-481 | October 18, 2019   Page 7 of 9
[14]   In addition, Foote testified that he has not had counsel since 2012 and that he

       has filed numerous pro se motions prior to the filing of the instant motion at

       issue herein. Said motions include but are not limited to a writ of habeas

       corpus in federal court in 2012, a request for sentence modification in the trial

       court in 2017, and numerous petitions for successive post-conviction relief. In

       addition, he represented himself in his appeal to this Court in Foote II and on

       rehearing in Foote III. Foote’s numerous filings of legal documents in the courts

       and, in addition, his legal maneuvering on his own behalf demonstrates a

       considerable level of awareness of the deadlines and procedural remedies of the

       criminal justice system. For example, at the hearing on the motion for

       permission to file a belated notice of appeal, he mentioned his investigation into

       how to file a writ of habeas corpus, and he testified about his filing stating, “the

       Writ was simply because I was running out of time to file a Writ, I had eight

       days left before my one year was up. That was just a procedure I didn’t want to

       miss out on.” Tr. Vol. II, p. 12. Given these facts, the trial court did not abuse

       its discretion in determining that Foote did not fail to timely file a notice of

       appeal and that he had not been diligent as considered by Post-Conviction Rule

       2(1).


                                                Conclusion
[15]   For the reasons stated, we conclude the trial court did not abuse its discretion in

       denying Foote’s motion for permission to file a belated notice of appeal.


[16]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-481 | October 18, 2019   Page 8 of 9
Kirsch, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-481 | October 18, 2019   Page 9 of 9
