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.

ATTORNEYS FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                    GREGORY F. ZOELLER
Public Defender of Indiana                          Attorney General of Indiana

MARIA E. MESOLORAS                                  MICHAEL GENE WORDEN
Deputy Public Defender                              Deputy Attorney General
Indianapolis, Indiana                               Indianapolis, Indiana
                                                                                  FILED
                                                                              Apr 11 2012, 9:23 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                      CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




JIM A. EDSALL,                                      )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 57A03-1110-CR-462
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE NOBLE SUPERIOR COURT
                          The Honorable Robert E. Kirsch, Judge
                              Cause No. 57D01-0608-FA-7



                                          April 11, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Jim A. Edsall (“Edsall”) appeals the trial court’s order denying permission to file a

belated notice of appeal. He raises the following restated issue: whether the trial court

erred in denying his motion for permission to file a belated notice of appeal, finding that

Edsall was not diligent in requesting such permission.

       We reverse.

                       FACTS AND PROCEDURAL HISTORY

       On January 4, 2008, Edsall pleaded guilty to five counts of delivery of

methamphetamine, each as a Class A felony, and one count of conspiracy to manufacture

methamphetamine as a Class A felony pursuant to a plea agreement that dismissed the

remaining counts and provided for a sentence not to exceed thirty years executed. On

February 8, 2008, the trial court sentenced Edsall to thirty years on each count to run

concurrently with each other for an aggregate sentence of thirty years executed, the

maximum term allowed under the plea agreement. The trial court advised Edsall that he

had the right to appeal his sentence, and if he chose to do so, he must initiate the appeal

within thirty days of sentencing. Appellant’s App. at 122-23.

       Edsall informed his trial counsel, James Stevens (“Stevens”), that he wished to

appeal his sentence, and Stevens assured Edsall that he would file a notice of appeal on

his behalf. During the thirty days following sentencing, Edsall wrote numerous letters to

Stevens, but did not receive any response. On February 19, 2008, Edsall wrote to the trial

court and requested copies of the chronological case summary (“CCS”), sentencing

transcript, and sentencing order. Because he has not heard from Stevens, Edsall wrote a

letter to the trial court, dated March 14, 2008, and inquired about whether Stevens had

                                             2
filed a notice of appeal. A CCS entry, dated March 19, 2008, indicated that the trial court

informed Edsall that no notice of appeal or motion to correct error had been filed in his

case, and if a notice of appeal or motion to correct error is not filed within thirty days of

sentencing, then Edsall’s right to appeal is forfeited. Id. at 138-39.

       On April 17, 2008, the trial court received a letter from Edsall requesting the

addresses of the Indiana Court of Appeals and the Indiana Attorney General, which the

trial court supplied to him. On May 5, 2008, Edsall wrote a letter to the Indiana Court of

Appeals, informing this court that Stevens had failed to timely file a notice of appeal and

asking whether it was still possible to file an appeal. Id. at 157-58. In a letter dated May

12, 2008, this court referred Edsall to Indiana Post-Conviction Rule 2. Id. at 159.

       On August 20, 2008, Edsall filed his pro se petition for post-conviction relief

under Indiana Post-Conviction Rule 1. Prior to filing this petition, Edsall had sent several

pro se requests for information and/or documents to the trial court on the following dates:

February 19, 2008; March 19, 2008; April 9, 2008; April 17, 2008; May 12, 2008; May

21, 2008; May 22, 2008; August 1, 2008; and August 11, 2008. Id. at 138-40. On

December 3, 2008, the State Public Defender was appointed to represent Edsall as to his

petition for post-conviction relief. On August 3, 2011, Edsall, through the State Public

Defender, filed a “Verified Motion for Permission to File a Belated Notice of Appeal”

pursuant to Indiana Post-Conviction Rule 2(1). The State filed an objection to the

motion, arguing that Edsall had not been diligent in requesting permission to file a

belated appeal. Id. at 314. The trial court denied Edsall’s motion for permission to file a



                                              3
belated appeal, finding that he had not been diligent in seeking permission to file a

belated appeal. Edsall now appeals.

                             DISCUSSION AND DECISION

       Indiana Post-Conviction Rule 2 (“P-C.R. 2”) permits a defendant to seek

permission to file a belated notice of appeal. The rule provides in pertinent part:

       Where an eligible defendant convicted after a trial or plea of guilty fails to
       file a timely notice of appeal, a petition for permission to file a belated
       notice of appeal for appeal of the conviction may be filed with the trial
       court, where:

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

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

Ind. Post-Conviction Rule 2(1). P–C.R. 2 also gives a defendant the right to appeal a trial

court’s denial of permission to file a belated notice of appeal or motion to correct error.

Moshenek v. State, 868 N.E.2d 419, 422 (Ind. 2007).

       The decision whether to grant permission to file a belated notice of appeal or

belated motion to correct error is within the sound discretion of the trial court. Id. (citing

George v. State, 862 N.E.2d 260, 264 (Ind. Ct. App. 2006)). A trial court’s ruling on a

petition for permission to file a belated notice of appeal under P–C.R. 2 will be affirmed

unless it was based on an error of law or a clearly erroneous factual determination. Ricks

v. State, 898 N.E.2d 1277, 1280 (Ind. Ct. App. 2006). However, where, as here, the trial

court does not hold a hearing on the petition, we will review the decision de novo without

according the trial court’s findings any deference. Id.


                                              4
       Edsall argues that the trial court abused its discretion when it denied his motion for

permission to file a belated notice of appeal. He contends that, although he did not file a

timely notice of appeal, he is entitled to file a belated notice of appeal under P-C.R. 2.

He asserts that his failure to file a timely notice of appeal was through no fault of his own

because he believed that Stevens was working on his appeal and because of his limited

education and relative unfamiliarity with the law. He also claims that he was diligent in

requesting permission to file a belated notice of appeal because he sent numerous letters

to his attorney, contacted the trial court frequently, and sent a letter to the Indiana Court

of Appeals.

       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 notice of to appeal. Witt v. State, 867 N.E.2d 1279, 1281 (Ind. 2007).

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

Moshenek, 868 N.E.2d at 423 (citing Land v. State, 640 N.E.2d 106, 108 (Ind. Ct. App.

1994), trans. denied). Several factors are relevant to the defendant’s diligence and lack

of fault in the delay of filing. Id. These include “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.

       Here, the record shows that the trial court advised Edsall of his right to appeal his

sentence and that, in order to do so, he must file a notice of appeal within thirty days.

Appellant’s App. at 122-23. When Edsall told Stevens he wished to appeal his sentence,

                                             5
Stevens assured Edsall that he would file a notice of appeal. However, Stevens failed to

file a notice of appeal on Edsall’s behalf within thirty days of sentencing. At the time of

sentencing, Edsall was forty-five years old and had only a high school education. Prior to

the commission of the crimes at issue, Edsall had four misdemeanor convictions, for

which he either received suspended sentences or minimal sentences not exceeding six

months, which he had not appealed, and which had occurred almost nine years before he

was sentenced in this case. Although at the time he was sentenced in the present case, he

had also been convicted of a Class C felony drug offense and sentenced in Michigan,

such conviction and sentence occurred in another state with different laws and

procedures. This demonstrates that Edsall was thus relatively unfamiliar with the legal

system in Indiana. The record does not show that Edsall committed an act or omission

that contributed to the delay in appealing is sentence. It demonstrates that he told Stevens

that he wished to appeal his sentence, that he wrote several letters to Stevens inquiring

about the status of his appeal, that he wrote requests to the trial court for various trial

records, including the sentencing order and transcript, and that he contacted the Indiana

Court of Appeals regarding how to file an appeal.           Edsall has proven beyond a

preponderance of the evidence that he was without fault in failing to timely file a notice

of appeal.

       Edsall further argues that was diligent in requesting permission to file a belated

notice of appeal. He was sentenced in the instant case on February 8, 2008. He informed

Stevens he wished to appeal. During the next few weeks, he sent Stevens numerous

letters concerning the notice of appeal, and never received a response. On February 19,

                                             6
2008, Edsall sent a pro se request to the trial court for various trial documents, including

the sentencing order and transcript. Appellant’s App. at 149. After failing to receive a

response from Steven regarding the status of his appeal, on March 19, 2008, Edsall wrote

a letter to the trial court and was informed that his right to appeal had been forfeited since

no notice of appeal was filed. On April 9, 2008, Edsall sent another letter to the trial

court. On April 17, 2008, he sent a letter to the trial court requesting the addresses of the

Indiana Court of Appeals and the Indiana Attorney General’s Office, which the trial court

provided.   On May 5, 2008, Edsall wrote a letter to the Indiana Court of Appeals

inquiring about his ability to file an appeal, and this court referred him to P-C.R. 2.

Subsequently, Edsall sent letters to the trial court on May 12, 2008; May 21, 2008; May

22, 2008; and August 1, 2008 requesting various items of information about his case. On

August 20, 2008, he filed his pro se petition for post-conviction relief pursuant to P-C.R.

1. The State Public Defender was appointed to represent Edsall on December 3, 2008.

       Electing to proceed first on a P-C. R. 1 claim does not preclude a finding of

diligence in a later P-C.R. 2 claim. Kling v. State, 837 N.E.2d 502, 508 (Ind. 2005). Nor

does the time spent by the State Public Defender investigating a claim count against the

defendant when courts consider the issue of diligence under P-C.R. 2. Id. Therefore, the

trial court erred in counting the time that his case was under investigation by the State

Public Defender against him. For purposes of determining whether Edsall was diligent in

seeking permission to file a belated notice of appeal, we must only look to the period of

time from February 8, 2008 (Edsall’s sentencing) until August 20, 2008 (filing of pro se

petition for post-conviction relief), a span of approximately six months.

                                              7
       During that period of time, Edsall sent numerous letters and filed various requests

for information and documents, including the sentencing order and sentencing transcript,

with the trial court. He also sent a letter to this court inquiring about the ability to appeal

his case. On August 20, 2008, approximately six months after Edsall was sentenced, he

filed his pro se petition for post-conviction relief. In his pro se petition, he raised an issue

related to Blakely v. Washington,1 although this was raised as a claim that his guilty plea

was involuntary because he was not advised of the right to jury sentencing under that

case. We conclude that Edsall has proven beyond a preponderance of the evidence that

he was diligent in seeking permission to file a belated notice of appeal. Therefore, the

trial court abused its discretion when it denied his motion for permission to file a belated

notice of appeal.

       Reversed.

BARNES, J., and BRADFORD, J., concur.




       1
           Blakely v. Washington, 542 U.S. 296 (2004).

                                                    8
