                                                        May 22 2013, 9:25 am

FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                               GREGORY F. ZOELLER
Public Defender of Indiana                     Attorney General of Indiana

LLOYD E. SALLY                                 ERIC P. BABBS
Deputy Public Defender                         Deputy Attorney General
Indianapolis, Indiana                          Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MARK L. JORDAN,                                )
                                               )
       Appellant-Petitioner,                   )
                                               )
              vs.                              )      No. 45A04-1212-CR-646
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Respondent.                    )


                     APPEAL FROM THE LAKE SUPERIOR COURT
                       The Honorable Thomas P. Stefaniak, Jr. Judge
                        The Honorable Natalie Bokota, Magistrate
                             Cause No. 45G04-0802-FC-22



                                      May 22, 2013

                               OPINION – FOR PUBLICATION

BAKER, Judge
       In this case, before a criminal defense attorney could file a notice of appeal on

behalf of his client, he was fighting for his life against a recurrence of cancer to which he

succumbed only a few months later. His client, appellant-petitioner Mark Jordan, who

had been ill-informed and apparently mistaken regarding the details and status of his

appeal, filed a petition for relief under Indiana Post-Conviction Rule 2, seeking to file a

belated appeal. The trial court denied this petition without a hearing or specific findings.

       We conclude that this was error, inasmuch as Jordan was without fault in failing to

file a timely notice of appeal in light of his attorney’s terminal illness. Accordingly, we

reverse and remand for further proceedings consistent with this appeal.

                                          FACTS

       On January 27, 2010, a jury convicted forty-one-year-old Jordan of five counts of

class C felony burglary, two counts of class D felony theft, and two counts of class D

felony auto theft. On June 4, 2010, Jordan was sentenced to a twenty-three-year executed

sentence. After the trial court imposed the sentence, the following colloquy occurred

between the trial court, Jordan, and Jordan’s attorney, Frederick Work:

       [THE COURT:] If you wanted to appeal, you would have to do it within
       thirty days of today’s date. If you do not, your appeal rights will forever be
       barred. In the event you did wish to appeal and could not afford a lawyer to
       represent you, the Court would appoint a lawyer to represent you at [no]
       cost to you (sic). Do you wish to appeal, sir?

       [JORDAN:] Yes.



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       [MR. WORK:] Judge, we have thirty days to make that determination.
       And if we could, I would ask that we be allowed to make that determination
       after consultation between the two of us.

       [THE COURT:] All right (sic). He just indicated he wanted to. Were you
       going to represent him should he choose to appeal or is he going to require
       [an] appellate public defender?

       [MR. WORK:] At this point, I’ve talked to the family. If there is going to
       be an appeal, I would handle it.

       [THE COURT:] If there is going to appeal what?

       [MR. WORK:] If there is going to be an appeal, at this point, I’ve talked to
       the family and the family is going to retain me for that purpose. However,
       that decision had not been made yet, Judge.

Appellant’s App. p. 471-72.

       Following Jordan’s sentencing, Work requested additional payment to continue

representing Jordan throughout the appeal. Barbara Jordan, Jordan’s mother, paid Work

the additional funds to retain Work to pursue the appeal.

       On July 29, 2010, Work was admitted into the University of Chicago Hospital for

surgery to treat a recurrence of cancer. Before Work’s admission to the hospital, he had

to undergo several weeks of testing to prepare for the surgery.

       On August 29, 2010, Work was transferred to the Progressive Rehabilitation

Center in Merrillville but was transferred to Methodist Hospital on September 13, 2010,

where he passed away.

       During the time that Work was battling cancer, the trial court recorded no

significant activity on Jordan’s case following the sentencing hearing until August 24,


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2010. On that day, the trial court received a letter from Jordan sent from the Westville

Correctional Facility, inquiring whether an appeal had been filed on his behalf. In the

letter, Jordan stated that he thought that his family had not retained Work, reminded the

trial court that he had stated that he wanted to appeal at his sentencing hearing, and urged

the trial court to appoint a public defender if Work had not filed an appeal on his behalf.

       The trial court denied Jordan’s requests.       An August 24, 2010 entry in the

Chronological Case Summary indicates that the trial court notified Jordan that he had

been advised during his sentencing hearing that his requests must have been made within

thirty days.

       On September 23, 2010, Jordan filed a pro se motion to compel production of

attorney files, seeking to obtain the documents within his file. Between this filing and

January 2012, Jordan filed various pro se motions and requests for documents. On

January 19, 2012, Jordan filed his pro se petition for post-conviction relief, which the

trial court forwarded to the public defender.

       On October 29, 2012, Jordan, now represented, filed his petition for post-

conviction relief, seeking permission to file a belated notice of appeal. Jordan attached to

his petition an affidavit from his mother, Barbara, stating that she had paid Work to

represent Jordan through the appeal process. Jordan also included an affidavit from

Beverly Work, his former attorney’s widow, averring to Work’s struggle with cancer

during the summer of 2010 until his passing in September 2010.



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      On November 29, 2012, the State filed its answer, and without a hearing or

specific findings, the trial court issued an order denying Jordan’s petition for post-

conviction relief. Jordan now appeals.

                            DISCUSSION AND DECISION

                                  I. Standard of Review

      Generally, this Court defers to the trial court’s discretion regarding whether a

petitioner has met his burden under Post-Conviction Rule 2. Baysinger v. State, 835

N.E.2d 223, 224 (Ind. Ct. App. 2005). However, where the trial court does not hold a

hearing before denying a Post-Conviction Rule 2 Petition, “the only basis for its decision

was that contained in the paper record attached to the petition. Because we are reviewing

the same information that was available to the trial court, we owe no deference to its

findings.” Id. Therefore, this Court’s review is de novo. Id.

                                II. Post-Conviction Rule 2

      Indiana Post-Conviction Rule 2(1) provides in relevant part:

      An eligible defendant convicted after a trial or plea of guilty may petition
      the trial court for permission to file a belated notice of appeal of the
      conviction or sentence if;

      (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 had been diligent in requesting permission to file a belated
          notice of appeal under this rule.
                                            ***


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       If the trial court finds that [these requirements] are met, it shall permit the
       defendant to file the belated notice of appeal. Otherwise, it shall deny the
       petition.

       At the outset, we observe that the State does not dispute that Jordan was diligent in

requesting permission to file his appeal. Thus, the sole issue with which we are presented

was whether Jordan’s failure to file a timely notice of appeal was his fault.

       Factors affecting whether a petitioner is responsible for the delay include whether

the court informed the petitioner of his appellate rights, whether the petitioner committed

an act or omission that contributed to the delay, the petitioner’s level of awareness of his

procedural remedy, his age, education, and familiarity with the legal system. Baysinger,

835 N.E.2d at 224. Nevertheless, each case must be decided on its own facts. Tolson v.

State, 665 N.E.2d 939, 942 (Ind. Ct. App. 1996).

       In the instant case, at the conclusion of Jordan’s sentencing hearing, the trial court

advised Jordan that he had thirty days to appeal its decision and asked Jordan if he

desired to appeal. Appellant’s App. p. 471. Jordan responded that he wanted to appeal,

but Work intervened, stating that they had thirty days to make that determination and that

he would like that time to discuss the possibility of an appeal with Jordan and his family.

Id. at 471-72.

       Then Jordan was imprisoned, appellant’s app. p. 4, and it appears that he was not

adequately informed regarding the status of his appeal. This is evidenced by the fact that

although Jordan’s mother paid Work to appeal Jordan’s case, Jordan was not aware of

this as he indicated in his August 24, 2010 letter to the trial court in which he requested a

                                             6
public defender. Id. at 538, 542. And while Jordan’s family thought that Work was

preparing Jordan’s appeal and Jordan was imprisoned, Work was actually fighting a

reoccurring cancer which forced him to undergo surgery in July 2010, and which

eventually took his life in September 2010. Id. at 538-41. In light of these facts, we

conclude that Jordan was without fault in failing to file a timely notice of appeal.

       Nevertheless, the State argues that based on the factors listed above, the trial court

did not err in denying Jordan’s petition. More particularly the State highlights the fact

that the trial court informed Jordan of his appellate rights, including his right to a court-

appointed attorney if he could not afford one. Additionally, the State focuses on the fact

that there is no evidence that Jordan failed to understand those rights. Furthermore, the

State points out: “As a habitual offender with ten prior felony convictions, Jordan was

quite familiar with the legal system. He was also forty-one years old at the time of

sentencing, and had completed a G.E.D.” Appellee’s Br. p. 8 (internal citations omitted).

       Although a rigid application of those factors to the facts of this case may lead to

the result reached by the trial court, as stated above, each case must be decided on its own

facts. To be sure, those factors certainly excluded the indispensable fact that Jordan’s

attorney became terminally ill almost immediately following Jordan’s sentencing hearing.

In short, we decline to say that a post-conviction petitioner is at fault for failing to file a

timely notice of appeal when his attorney becomes terminally ill shortly after the

sentencing hearing, and the petitioner is incarcerated.



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       The judgment of the post-conviction court is reversed, and this cause is remanded

for further proceedings consistent with this opinion.

MAY, J., and MATHIAS, J., concur.




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