                                                               FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                   Mar 20 2012, 9:12 am
court except for the purpose of
establishing the defense of res judicata,
                                                                   CLERK
collateral estoppel, or the law of the case.                     of the supreme court,
                                                                 court of appeals and
                                                                        tax court




APPELLANT PRO-SE:                               ATTORNEYS FOR APPELLEE:

CLARENCE A. MARTIN, JR.                         GREGORY F. ZOELLER
Michigan City, Indiana                          Attorney General of Indiana

                                                ANDREW A. KOBE
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

CLARENCE A. MARTIN, JR.                         )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 82A01-1008-PC-497
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                         The Honorable Carl A. Heldt, Judge
                           Cause No. 82C01-0708-PC-10



                                      March 20, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       Clarence A. Martin, Jr. appeals the post-conviction court’s denial of his petition

for post-conviction relief, arguing that its rejection of his ineffective assistance of counsel

claim is erroneous. The State cross-appeals arguing that Martin’s appeal should be

dismissed because his notice of appeal was untimely. Concluding that this court lacks

subject matter jurisdiction because Martin’s notice of appeal was untimely, we dismiss

the appeal.

                                           FACTS

       On July 9, 1998, Martin was sentenced to sixty years for murder. Martin filed a

petition for post-conviction relief claiming ineffective assistance of counsel. Following a

hearing, the post-conviction court denied his petition on June 28, 2010. On August 27,

2010, Martin filed his notice of appeal, and on December 9, 2011, the State filed a motion

to dismiss the appeal because the record does not include the post-conviction transcript.

The motions panel denied the motion. Martin now appeals.

                              DISCUSSION AND DECISION

       On cross-appeal, the State argues that Martin’s appeal must be dismissed because

he failed to timely file a notice of appeal and to file the record. Indiana Appellate Rule

9(A)(1) provides that a notice of appeal must be filed within thirty days after the entry of

a final judgment. The timely filing of a notice of appeal is a jurisdictional prerequisite,

and failure to conform to the applicable time limits results in forfeiture of an appeal.

State v. Hunter, 904 N.E.2d 371, 373 (Ind. Ct. App. 2009). Because Martin filed his



                                              2
appeal more than thirty days after the post-conviction court’s entry of final judgment, we

dismiss this appeal for lack of subject matter jurisdiction.

       Moreover, Martin has failed to include the record necessary to review his claim.

Accordingly, he cannot convince us that the post-conviction court’s decision was clearly

erroneous. See Shepard v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010) (holding

that petitioner must show that the evidence as a whole leads unerringly and unmistakably

to an opposite conclusion than that reached by the post-conviction court.))

       Appeal dismissed.

KIRSCH, J., and BROWN, J., concur.




                                              3
