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,                    FILED
collateral estoppel, or the law of the                    Sep 07 2012, 9:12 am
case.
                                                                  CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

LANCE SCOTT BOUTTE                              GREGORY F. ZOELLER
Pendleton, Indiana                              Attorney General of Indiana

                                                NICOLE M. SCHUSTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

LANCE SCOTT BOUTTE,                             )
                                                )
       Appellant,                               )
                                                )
              vs.                               )       No. 02A05-1202-CR-91
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee.                                )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                        The Honorable John F. Surbeck, Jr., Judge
                            Cause No. 02D04-0003-CR-151


                                    September 7, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                              STATEMENT OF THE CASE

       Lance S. Boutte, pro se, appeals the trial court’s denial of his petition to file a

belated notice of appeal.

       We affirm.

                                         ISSUES

       1.     Whether Boutte has waived his appeal for failure to make cogent
              argument.

       2.     Whether the trial court erred in denying Boutte’s petition.

                                          FACTS

       In 2001, Boutte entered into an open plea after being charged for the murder of his

father, the attempted murder of his mother, escape by cutting off his electronic

monitoring device, and being a habitual offender. Under the plea terms, Boutte pled

guilty to the lesser offenses of voluntary manslaughter, a class A felony, and aggravated

battery, a class B felony, in exchange for dismissal of the escape and habitual offender

charges. Sentencing was left to the trial court’s discretion, and on July 7, 2001, the trial

court sentenced Boutte to forty years on the voluntary manslaughter conviction and

fifteen years on the aggravated battery count, with the sentences to be served

consecutively.

       On December 7, 2001, Boutte filed a petition for post-conviction relief that he

later amended on February 4, 2002. The petition alleged, among other things, that Boutte

did not knowingly and voluntarily enter into the plea and that he was denied effective

assistance of counsel. On January 21, 2003, the trial court denied the petition, and on
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February 17, 2003, the court denied Boutte’s motion to correct error and motion to

reconsider sentence.

       On April 2, 2003, Boutte filed an appeal from the trial court’s denial of his petition

for post-conviction relief. On appeal, we concluded that Boutte waived review of his

post-conviction claims for failure to make a cogent argument. Waiver notwithstanding,

we addressed the merits of Boutte’s claims and affirmed the trial court. See Boutte v.

State, No. 02A03-0304-PC-137 (Ind. Ct. App. March 19, 2004).

       On August 30, 2004, Boutte filed a motion to correct erroneous sentence, which

the trial court denied on August 31, 2004. Boutte filed a motion to correct error, which

the trial court denied on September 30, 2004.

       On October 18, 2004, Boutte filed a notice of appeal. On December 7, 2005, this

court ordered dismissal of the appeal. During the interim period between the filing of the

notice of appeal and the dismissal, Boutte filed a motion for modification of sentence,

which was denied on April 12, 2005.

       On August 24, 2007, Boutte filed a verified petition for permission to file a belated

notice of appeal. On October 29, 2007, the trial court denied the petition.

       On December 7, 2011, Boutte again filed a verified petition for permission to file a

belated appeal with a supporting affidavit. The petition was denied on December 16,

2011, and a consequent motion to correct error was denied on January 23, 2012. This

appeal ensued.



                                             3
                                        DECISION

1.     Waiver

       The State contends that Boutte has waived his claim for failure to make a cogent

argument.    In support of its contention, the State refers to Indiana Appellate Rule

46(8)(a), which states that the argument section of a brief “must contain the contentions

of the appellant on the issues presented, supported by cogent reasoning.” The rule further

states that “[e]ach contention must be supported by citations to authorities, statutes, and

the Appendix or parts of the Record on Appeal relied on, in accordance with Rule 22.” A

party waives an issue when he fails to comply with the requirements of App. Rule

46(8)(a). See Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App. 2009).

       Pursuant to Post-Conviction Rule 2(1), a person desiring to file a belated notice of

appeal must establish that the failure to file a timely notice of appeal was not due to his

fault and that the person has been diligent in requesting permission to file a belated notice

of appeal under the rule. The person has the burden of proving his grounds for relief by a

preponderance of the evidence. Witt v. State, 867 N.E.2d 1279, 1281 (Ind. 2007).

       Here, the bulk of Boutte’s brief refers to issues unrelated to his petition, including

an alleged Brady violation and an alleged violation of professional rules of conduct.

Indeed, the brief’s conclusion refers to perjury, the level of prosecution’s knowledge, and

a “psych report.” Boutte’s Br. at 7. However, in the midst of the unrelated material is the

following paragraph:

       Appellant has [an] absolute right to appeal under Article 7, Section 6 of the
       Indiana Constitution. And pursuant to the authority of [Collins v. State,
                                             4
       817 N.E.2d 230 (Ind. 2004)], the appellant is required to attack his sentence
       by way of a direct appeal. . . . Trial judge was duty [bound] to grant the
       petition with the motion to correct error’s [sic] filed after the petition was
       denied. Appellant has been diligently working to perfect his PC2; with the
       [Collins] ruling, made it clear that a sentence must be attack[ed] in a direct
       appeal or waive[] sentencing issues. Failure to file a timely notice of
       appeal was not due to the fault of the appellant. Appendix [pp.] 77-94.
       And as mentioned before, just ruled stable 1-26-2012, from 2005-2012.
       And from 2000 until 2005[,] appellant was under Heavily [sic] sedat[ion],
       from the [facts] laid out in the verified affidavit submitted with Exhibit[s]
       and the motion to correct error filed in [the] Allen Superior Court. And
       with new [records] submitted in the Appendix “Exhibits” [pp.] 77-94.

Appellant’s Br. at 4-5.

       Although Boutte’s brief is not a paragon of clarity, it does, albeit obscurely,

present the basis for Boutte’s claim. Accordingly, we must conclude that Boutte has not

waived his claim.

2.     Propriety of Denial

       As we state above, a defendant desiring to file a belated notice of appeal must

show that he was not at fault in the failure to file a timely notice of appeal and that he has

been diligent in requesting permission to file a belated notice. Post-Conviction Rule

2(1)(a). There are no set standards defining delay or diligence; each case must be

decided on its own facts. Beaudry v. State, 763 N.E.2d 487, 490 (Ind. Ct. App. 2002).

“Factors affecting the determination 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.        Where, as here, the trial court did not

hold a hearing before denying a petition to file a belated notice of appeal, our review of
                                            5
the court’s grant or denial of the petition is de novo. See Hull v. State, 839 N.E.2d 1250,

1253 (Ind. Ct. App. 2005).

       As we understand it, Boutte’s initial claim is that he is entitled to file a belated

notice of appeal because Collins holds that a defendant sentenced pursuant to an open

guilty plea may contest his sentence via direct appeal. 817 N.E.2d at 231. However,

contrary to Boutte’s apparent belief, Collins does not require a trial court to automatically

grant every request to file a belated notice of appeal. A defendant is still required to

show that he meets the fault and diligence requirements of Post-Conviction 2(1)(a).

       To the extent that Boutte believes that he has only recently been “ruled stable”

enough to diligently pursue his petition for belated notice of appeal, we note that over the

years he has filed a multitude of motions, including two motions to correct erroneous

sentence, a motion to modify sentence, and a prior post-Collins petition for permission to

file a belated appeal. In light of the number and content of these filings, we cannot say

that Boutte’s past instability prevented him from diligently pursuing a direct appeal of his

sentence. In short, we cannot conclude that the trial court erred in denying Boutte’s

petition.

       Affirmed.

FRIEDLANDER, J., and BROWN, J., concur.




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