MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Jan 25 2018, 10:57 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Curtis T. Hill, Jr
Kokomo, Indiana                                          Attorney General of Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Cyril Washington,                                        January 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A05-1708-CR-1838
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable George A.
Appellee-Plaintiff.                                      Hopkins, Judge
                                                         Trial Court Cause No.
                                                         34D04-1411-F5-152



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018       Page 1 of 5
                                Case Summary and Issue
[1]   The trial court revoked Cyril Washington’s placement on in-home detention

      and ordered him to serve the remaining portion of his sentence in the Indiana

      Department of Correction. Washington appeals, raising the sole issue of

      whether the trial court abused its discretion in calculating his credit time. The

      State of Indiana cross-appeals, alleging the trial court lacked the authority to

      permit Washington to file a belated notice of appeal. Concluding Washington

      failed to timely file a notice appeal and the trial court lacked authority to

      authorize a belated appeal from his probation revocation, we dismiss this

      appeal.



                            Facts and Procedural History
[2]   In May of 2015, Washington pleaded guilty to possession of marijuana, a Level

      6 felony, and resisting law enforcement, a Class A misdemeanor. The trial

      court sentenced Washington to a total of forty-two months—twenty-four

      months executed on in-home detention and eighteen months suspended to

      probation.


[3]   On December 2, 2015, the State filed a notice alleging Washington violated the

      terms of his in-home detention and the trial court issued a warrant for his arrest.

      Washington was arrested on July 20, 2016. Following a hearing on September

      30, 2016, the trial court revoked 183 days of Washington’s suspended sentence

      and awarded him 146 days of credit for time served. Washington served the


      Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018   Page 2 of 5
      remaining portion of this sentence and returned to in-home detention on

      October 27, 2016.


[4]   On May 1, 2017, the State filed a second notice alleging Washington violated

      the terms of his in-home detention and the trial court issued a warrant for his

      arrest. On May 5, 2017, Washington was arrested. Washington admitted the

      violations and on June 23, 2017, the trial court sentenced Washington as

      follows:


              [Washington] is ordered to serve the balance of his In-Home and
              suspended sentence in the Indiana Department of Corrections in
              the amount of One Thousand, Ninety Five (1,095) days.
              [Washington] is given credit for in-home in the amount of One
              Hundred Seventy Five (175) actual days or Three Hundred Fifty
              (350) days with day for day credit from 10/27/2016 to 3/6/2017
              and jail credit in the amount of Fifty (50) actual days of One
              Hundred (100) days with day for day credit from 5/5/2017 to
              6/23/2107 and Five (5) actual days of in-home credit left over
              from the 9/30/2016 sentencing or Ten (10) days with day for day
              credit leaving Four Hundred Fifty Nine (459) actual days to
              serve.


      Appellant’s Appendix, Volume 2 at 98. On August 8, 2017, Washington

      sought permission to file a belated appeal. The trial court granted

      Washington’s motion and he filed a belated notice of appeal on August 15,

      2017.



                                 Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018   Page 3 of 5
[5]   Washington alleges the trial court improperly calculated the balance of his

      sentence by failing to award him with credit for certain periods of time. The

      State cross-appeals arguing belated appeals from orders revoking probation are

      not available pursuant to Indiana Post-Conviction Rule 2. We agree with the

      State.


[6]   To initiate an appeal, a party must file a notice of appeal within thirty days after

      entry of a final judgment. Ind. Appellate Rule 9(A)(1). “Unless the Notice of

      Appeal is timely filed, the right to appeal shall be forfeited except as provided

      by [Indiana Post-Conviction Rule 2].” App. R. 9(A)(5). The trial court

      revoked Washington’s placement on in-home detention on June 23, 2017, and

      Washington failed to file a notice of appeal within thirty days of that date.

      Therefore, Washington’s appeal is untimely and he has forfeited his right to

      appeal unless Indiana Post-Conviction Rule 2 provides otherwise.


[7]   Indiana Post-Conviction Rule 2(1) permits an “eligible defendant” to petition

      the trial court for permission to file a belated notice of appeal of his “conviction

      or sentence.” An “eligible defendant” is one who, “but for the defendant’s

      failure to do so timely, would have the right to challenge on direct appeal a

      conviction or sentence after a trial or plea of guilty by filing a notice of appeal

      . . . .” Ind. Post-Conviction Rule 2. The sanction imposed when probation is

      revoked does not qualify as a “sentence” under Post-Conviction Rule 2.

      Dawson v. State, 938 N.E.2d 841, 845 (Ind. Ct. App. 2010), adopted and

      incorporated by reference by 943 N.E.2d 1281 (Ind. 2011).



      Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018   Page 4 of 5
               [T]he action taken by a trial court in a probation revocation
               proceeding is not a “sentencing.” The court is merely
               determining whether there has been a violation of probation and,
               if so, the extent to which the court’s conditional suspension of the
               original sentence should be modified and/or whether additional
               conditions or terms of probation are appropriate.


      Id. (quoting Jones v. State, 885 N.E.2d 1286, 1289 (Ind. 2008)). Thus,

      Washington is not an “eligible defendant” and his appeal is not properly before

      us due to his failure to file a timely appeal.1 We therefore decline to consider

      this appeal.



                                                 Conclusion
[8]   Washington failed to file his appeal in a timely fashion and there is no belated

      appeal available to him. Accordingly, we dismiss his appeal.


[9]   Dismissed.


      Crone, J., and Bradford, J., concur.




      1
        Our supreme court has determined that “[f]orfeiture and jurisdiction are not the same.” In re Adoption of
      O.R., 16 N.E.3d 965, 970 (Ind. 2014). A party may forfeit its right to an appeal, but that forfeiture does not
      deprive an appellate court of jurisdiction to entertain the appeal. Id. at 971. A party who has forfeited the
      right to appeal must present “extraordinarily compelling reasons” why their appeal should be restored. Id.
      Washington’s brief does not address his failure to timely file an appeal or attempt to present extraordinarily
      compelling reasons to consider his appeal.

      Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018              Page 5 of 5
