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:

MARK S. LENYO                                    GREGORY F. ZOELLER
South Bend, Indiana                              Attorney General of Indiana

                                                 IAN MCLEAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                           Jan 11 2013, 9:13 am
                              IN THE
                                                                                   CLERK
                    COURT OF APPEALS OF INDIANA                                  of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




DEJUAN T. LOWE
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 71A03-1206-CR-264
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                        The Honorable Roland W. Chamblee, Judge
                             Cause No. 71D08-0307-FA-49




                                      January 11, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                         Case Summary and Issue

        Dejuan Lowe appeals his sentence following a guilty plea. Lowe raises two issues on

appeal but the State presents a preliminary issue that we find dispositive: whether the trial court

abused its discretion in granting Lowe’s petition for permission to file a belated notice of appeal.

Concluding that the trial court did abuse its discretion, and the appeal was therefore untimely, we

dismiss the appeal.

                                      Facts and Procedural History

        On July 22, 2003, Lowe was charged with four counts of burglary as Class B felonies,

one count of attempted burglary as a Class B felony, and one count of burglary as a Class A

felony. On July 2, 2007, a plea hearing was held and Lowe pleaded guilty to all six charges,

pursuant to an open plea agreement with the State. On July 24, 2007, a sentencing hearing was

conducted. On April 11, 2012, Lowe filed a verified petition for permission to file a belated

notice of appeal pursuant to Indiana Post-Conviction Rule 2(1),1 claiming that the trial court

never advised him of his right to appeal, and so failure to file a timely notice of appeal was not

his fault. On May 10, 2012, the trial court granted the petition, and this appeal followed.

                                         Discussion and Decision

        As a threshold matter, the State argues that the trial court abused its discretion by

granting Lowe’s petition for leave to file a belated notice of appeal, because the record shows

that Lowe was advised of his right to appeal and thus contradicts Lowe’s contention that he was

not at fault for failing to file a timely notice of appeal. We agree.




        1
           Post-Conviction Rule 2(1) allows a defendant to seek permission to file a belated notice of appeal, and
requires the defendant to show that:
         (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.
                                                        2
       Generally, 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. Russell v. State,

970 N.E.2d 156, 160 (Ind. Ct. App. 2012), trans. denied. However, if the trial court does not

hold a hearing before granting or denying a petition to file a belated notice of appeal, the

appellate court owes no deference to the trial court’s decision, and the review of the granting of

the petition is de novo. Id. Lowe filed his petition for permission to file a belated notice of

appeal on April 11, 2012 and the trial court granted the petition the following month. Neither

party suggests that a hearing was held, and our review of the record does not indicate that a

hearing was held. Therefore, we review the trial court’s grant of the petition de novo.

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

own facts. Id. The Indiana Supreme Court has held that several factors are relevant to the

defendant’s diligence and lack of fault in the delay of filing, including: 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. (citing Moshenek v. State, 868 N.E.2d 419, 423 (Ind. 2007)).

       In his petition, Lowe’s only support for showing the lateness of the appeal was not his

fault is his contention that he was unaware of his right to appeal because the trial court failed to

advise him of that right. In fact, the record shows that he was informed of that right at the plea

hearing. The court, at some length, advised Lowe of the rights he would be giving up if he

pleaded guilty, including the right to have the State prove the elements of each offense beyond a

reasonable doubt, and the right to appeal the conviction.        The court confirmed that Lowe

understood these rights and that he would be giving them up by pleading guilty. The court then

said to Lowe and another defendant, “I will tell you that you each have a right to appeal the
                                              3
sentence that you receive even now on your guilty pleas if you think it is illegally incorrect and

you are guaranteed the right to have a lawyer represent you even if you couldn’t afford your

own.” The record thus shows that Lowe was informed of his right to appeal his sentence, in

contradiction to his assertion in his petition.2

                                                   Conclusion

         Having determined that Lowe was in fact informed of his right to appeal, and without

Lowe having put forth any other basis for the failure to file a timely notice of appeal not being

his fault, we conclude that he has failed to meet the requirement of Post-Conviction Rule

2(1)(a)(2) and thus that it was an abuse of discretion for the trial court to grant his petition. The

appeal is dismissed.

         Dismissed.

MAY, J., AND PYLE, J., concur.




         2
           While we find this fact extremely persuasive, we also note, in consideration of the other factors set out by
the supreme court, that Lowe was twenty-nine at the time of the plea hearing, had completed at least some high
school and by his own admission could read and write okay, and had at least one prior felony conviction at the time
of the offenses underlying this appeal. On the whole, it appears that the fault for failing to timely appeal lies with
Lowe.
                                                          4
