                                                                 FEB 18 2014, 9:23 am
FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

ROBERT B. TURNER                             GREGORY F. ZOELLER
LEE & FAIRMAN, LLP                           Attorney General of Indiana
Indianapolis, Indiana
                                             JAMES B. MARTIN
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

SEGUN RASAKI                                 )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )        No. 49A05-1307-CR-330
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Reuben Hill, Judge
                          Cause No. 49F18-1203-FD-013401


                                  February 18, 2014


                             OPINION – FOR PUBLICATION



MATHIAS, Judge
       Following a bench trial, Segun Rasaki (“Rasaki”) was convicted of Class D felony

sexual battery and Class B misdemeanor battery in Marion Superior Court. On appeal,

Rasaki claims that the State failed to produce evidence sufficient to support his

convictions. Concluding, sua sponte, that Rasaki’s appeal is untimely, we dismiss.

                              Facts and Procedural History

       On March 3, 2012, the State charged Rasaki with Class D felony sexual battery

and Class B misdemeanor battery. The State subsequently amended the charge to include

another count of Class B misdemeanor battery. A bench trial was held on September 17,

2012. At the conclusion of the evidence and argument, the trial court took the matter

under advisement. On September 25, 2012, the trial court found Rasaki guilty of Class D

felony sexual battery and Class B misdemeanor battery. The trial court found Rasaki not

guilty of the other count of battery, concluding that it was “subsumed” by the Class D

felony sexual battery conviction.

       Rasaki filed a motion for extension of time on October 17, 2012, seeking an

extension of time to permit his recently-hired counsel to review the record for purposes of

filling a motion to correct error or a post-conviction petition. The trial court granted this

request the same day, setting the sentencing hearing for November 26, 2012.

       At the November 26 sentencing hearing, the trial court sentenced Rasaki to

concurrent terms of 545 days on the Class D felony conviction and 180 days on the Class

B misdemeanor conviction. The trial court ordered that Rasaki serve 120 days executed,

245 days of home detention through community corrections, and 180 days suspended to

probation. Rasaki filed a motion to correct error that same day, claiming there was


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insufficient evidence to support his convictions. Rasaki then filed a petition for post-

conviction relief on November 27, 2012. On November 30, 2012, the trial court granted

Rasaki’s motion to stay sentence pending appeal. The State responded to Rasaki’s

motion to correct error on December 11, 2012. On February 15, 2013, the trial court

denied Rasaki’s motion to correct error.

       Rasaki did not file a notice of appeal within thirty days of the trial court’s order

denying his motion to correct error, as required by Indiana Appellate Rule 9(A).

According to the CCS, on March 1, 2013, Rasaki filed a motion for extension of time.

The trial court ruled on Rasaki’s motion on March 4, 2013, and the trial court’s CCS

entry for this ruling states that Rasaki’s motion was “GRANTED UNTIL 4-16-13 UNTIL

RULING ON PCR.” Appellant’s App. p. 12. The actual motion filed on March 1 and

the trial court’s order thereon do not appear to be in the record before us. But based on

information from Rasaki’s subsequent motions, it is apparent that this motion sought to

extend the time for the filing of his notice of appeal.

       On April 8, 2013, Rasaki filed a “Second Motion for Enlargement of Time,” even

though, by our count, this was actually his third motion for enlargement of time.

Appellant’s App. p. 55. In this motion, Rasaki acknowledged that the trial court denied

his motion to correct error on February 14, 2013 and that he was therefore “required to

file his Appeal within thirty (30) days of said Order.” Id. The motion then states:

       5.     On February 28, 2013, Defendant filed a Request for Enlargement of
              Time within which to file his appeal pending the hearing on
              Defendant’s Petition for Post Conviction relief which was then
              scheduled for March 25, 2013, at 8:30 a.m.; however all Court cases
              for March 25, 2013, were cancelled because all city/county offices
              were closed because of snow.

                                              3
      6.     That Defendant’s hearing on the Petition for Post Conviction Relief
             is now scheduled for April 18, 2013, at 9:30 a.m. and therefore
             Defendant requires additional time based upon the snow delay, as to
             permit the Court to rule on the Petition for Post Conviction Relief,
             evaluate such and file his Appeal.

      7.     That Defendant requests additional time until May 18, 2013, to
             receive and evaluate the Court’s ruling following the upcoming
             hearing on April 18, 2013. . . .

Id.

      The trial court granted Rasaki’s motion for enlargement of time on April 8, 2013,

and set the post-conviction hearing for April 18, 2013. The magistrate who was to

preside at this hearing, however, had to recuse, and the post-conviction hearing was

rescheduled for June 10, 2013. Accordingly, on May 5, 2013, Rasaki filed another

motion for enlargement of time, “as to permit the Court to rule on the Petition for Post

Conviction Relief” and permit Rasaki to “evaluate such and file his Appeal.” Id. at 58.

Rasaki requested until July 10, 2013, to file his appeal. The trial court granted this

motion on May 7, 2013.

      On June 10, 2013, the trial court held a hearing on Rasaki’s post-conviction

petition, but had yet to rule on the motion as July 10, 2013, approached. Rasaki therefore

filed yet another motion for enlargement of time on July 8, 2013, requesting “additional

time until October 5, 2013 to evaluate [the trial court’s post-conviction ruling] and file

his Appeal.” Id. at 62. The trial court denied this motion on July 15, 2013. Rasaki,

however, had already filed a notice of appeal on July 10, 2013.

                                Discussion and Decision

      Neither party raises the issue of the timeliness of this appeal. Nevertheless, the

lack of appellate jurisdiction can be raised at any time, and even if the parties do not
                                            4
question subject matter jurisdiction, we may consider the issue sua sponte. Bohlander v.

Bohlander, 875 N.E.2d 299, 301 (Ind. Ct. App. 2007) (citing Georgos v. Jackson, 790

N.E.2d 448, 451 (Ind. 2003)), trans. denied; see also Jernigan v. State, 894 N.E.2d 1044,

1046 (Ind. Ct. App. 2008). The timely filing of a notice of appeal is a jurisdictional

prerequisite, and the failure to conform to the applicable time limits results in forfeiture

of an appeal. Id. We therefore address the timeliness of Rasaki’s appeal as a threshold

issue.

         Indiana Appellate Rule 9(A)(1) provides:

         A party initiates an appeal by filing a Notice of Appeal with the Clerk (as
         defined in Rule 2(D)) within thirty (30) days after entry of a Final
         Judgment is noted in the Chronological Case Summary. However, if any
         party files a timely motion to correct error, a Notice of Appeal must be filed
         within thirty (30) days after the court’s ruling on such motion is noted in
         the Chronological Case Summary or thirty (30) days after the motion is
         deemed denied under Trial Rule 53.3, whichever occurs first.

         Appellate Rule 9(A)(5) provides that “[u]nless the Notice of Appeal is timely

filed, the right to appeal shall be forfeited except as provided by [Post-Conviction Rule]

2.” Because Rasaki’s motion to correct error was denied on February 15, 2013, his notice

of appeal was due no later than March 18, 2013.1 His failure to do so results in forfeiture

of his right to appeal.

         Rasaki did not file a motion for a belated appeal pursuant to Post-Conviction Rule

2, which could have allowed him to appeal. Instead, he filed numerous motions for

enlargement of time under Trial Rule 6(B). This rule provides:



1
  Thirty days from February 15, 2013, was March 17, 2013, which is a Sunday. Therefore, the notice of
appeal was due the following Monday, March 18, 2013. See Ind. Appellate Rule 25(B).

                                                 5
       (B) Enlargement. When an act is required or allowed to be done at or
       within a specific time by these rules, the court may at any time for cause
       shown:
       (1) order the period enlarged, with or without motion or notice, if request
       therefor is made before the expiration of the period originally prescribed or
       extended by a previous order; or
       (2) upon motion made after the expiration of the specific period, permit the
       act to be done where the failure to act was the result of excusable neglect;
       but, the court may not extend the time for taking any action for judgment
       on the evidence under Rule 50(A), amendment of findings and judgment
       under Rule 52(B), to correct errors under Rule 59(C), statement in
       opposition to motion to correct error under Rule 59(E), or to obtain relief
       from final judgment under Rule 60(B), except to the extent and under the
       conditions stated in those rules.

Ind. T.R. 6(B) (emphasis added).

       This rule, by its own terms, applies only to the Rules of Trial Procedure, not the

Rules of Appellate Procedure. As Professor Harvey has noted, Trial Rule 6(B) “is

designed to provide relief from a condition that is less than a final order or judgment (for

which relief might become available under T.R. (60)).” 1 Indiana Practice, Rules Of

Procedure Annotated, Rule 6 (3d ed.); see also id., Notes of Advisory Committee on

Amendments to Rules (noting that Rule 6 is not meant to enlarge “the time fixed by law

for taking an appeal.”).

       It is apparent that Rasaki sought the extension of time so that he could first seek

post-conviction relief. However, there is already a well-established procedure to follow

for a defendant who wishes to seek post-conviction relief before taking direct appeal. As

this court explained in Slusher v. State, 823 N.E.2d 1219, 1222 (Ind. Ct. App. 2005):

       [W]here it is necessary on appeal to develop an additional evidentiary
       record to evaluate the reasons for trial counsel’s [alleged] error, the proper
       procedure is to request that the appeal be suspended or terminated so that
       a more thorough record may be compiled through the pursuit of post-
       conviction proceedings. This procedure for developing a record for appeal
                                             6
        is more commonly known as the Davis/Hatton procedure. See Hatton v.
        State, 626 N.E.2d 442, 443 (Ind. 1993); Davis v. State, 267 Ind. 152, 368
        N.E.2d 1149, 1151 (1977). As we explained, the Davis/Hatton procedure
        involves a termination or suspension of a direct appeal already initiated,
        upon appellate counsel’s motion for remand or stay, to allow a post-
        conviction relief petition to be pursued in the trial court. If the appellate
        court preliminarily determines that the motion has sufficient merit, the
        entire case is remanded for consideration of the petition for post-conviction
        relief. If, after a full evidentiary hearing the post-conviction relief petition
        is denied, the appeal can be reinitiated. Thus, in addition to the issues
        initially raised in the direct appeal, the issues litigated in the post-
        conviction relief proceeding can also be raised. This way, a full hearing
        and record on the issue will be included in the appeal. If the petition for
        post-conviction relief is denied after a hearing, and the direct appeal is
        reinstated, the direct appeal and the appeal of the denial of post-conviction
        relief are consolidated.

Slusher, 823 N.E.2d at 1222 (some citations omitted) (emphasis added).

        Accordingly, if Rasaki wished to bring a petition for post-conviction relief prior to

pursuing a direct appeal, the proper course of action would have been to timely file his

notice of appeal, then file a Davis/Hatton motion to suspend his direct appeal during the

post-conviction process. But he did not do this. Instead, he improperly sought to extend

the thirty-day deadline of Appellate Rule 9(A) by filing a motion for enlargement of time

under Trial Rule 6(B), and the trial court improperly granted these motions. But as noted

above, Trial Rule 6(B) applies only to time limits imposed under the Trial Rules. Under

Appellate Rule 9(A), Rasaki’s notice of appeal was due not later than thirty days after the

trial court’s February 15, 2013, ruling on his motion to correct error, i.e., March 18, 2013.

Rasaki’s notice of appeal was not filed until July 10, 2013, well beyond this deadline.

Accordingly, Rasaki forfeited his right to appeal.2


2
  This does not leave Rasaki without remedy. He may still petition the trial court for permission to file a
belated notice of appeal pursuant to Post-Conviction Rule 2, if he: (1) failed to timely file a notice of

                                                    7
        This is not a mere technicality. Because Rasaki’s notice of appeal was untimely,

we are without jurisdiction to hear his appeal. See Jernigan, 894 N.E.2d at 1046. We

must therefore dismiss Rasaki’s appeal as untimely.

        Dismissed.

BRADFORD, J., and PYLE, J., concur.




appeal, (2) was not at fault for this failure, and (3) was diligent in requesting permission to file a belated
notice of appeal. See Post-Conviction Rule 2(1)(a).

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