MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                         Jul 22 2015, 9:28 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stephen T. Owens                                          Gregory F. Zoeller
Public Defender of Indiana                                Attorney General of Indiana

C. Brent Martin                                           Monika Prekopa Talbot
Deputy Public Defender                                    Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Roger Pringle,                                            July 22, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          03A01-1502-CR-78
        v.                                                Appeal from the Bartholomew
                                                          Circuit Court; the Honorable
                                                          Stephen R. Heimann, Judge;
State of Indiana,                                         03C01-1109-FD-5086
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-78 | July 22, 2015         Page 1 of 5
[1]   Roger Pringle appeals the denial of his motion for permission to file a belated

      appeal. As Pringle was not diligent in pursuing relief, we affirm.


                                   Facts and Procedural History
[2]   On March 5, 2012, Pringle agreed to plead guilty to burglary. On April 4, 2012,

      the trial court held a sentencing hearing and sentenced Pringle to eighteen years

      incarceration. On June 4, 2012, Pringle, acting pro se, asked for a transcript of

      his guilty plea hearing and the record of proceedings. The trial court denied the

      motion on the ground there was “no action pending before the court requiring

      such a record.” (App. at 6.) On July 31, 2012, Pringle, still pro se, filed a

      motion for sentence modification. The trial court denied the motion without a

      hearing. On November 26, 2012, Pringle filed a pro se petition for post-

      conviction relief. 1 Pringle listed as grounds for relief, among other things,

      “Sentencing errors,” (id. at 139), and he requested appointment of counsel.


[3]   On September 15, 2014, Pringle, by counsel, filed his verified Motion for

      Permission to File a Belated Notice of Appeal. The State objected, and the trial

      court denied his motion.


                                       Discussion and Decision
[4]   When, as here, the trial court does not hold a hearing on a motion to file a

      belated notice of appeal, we are reviewing the same information available to the




      1
        Neither party directs us to anything in the record that indicates whether or how the court ruled on the
      petition.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-78 | July 22, 2015                 Page 2 of 5
      trial court. Therefore, we review de novo the ruling on such a motion. 2 St. Clair

      v. State, 901 N.E.2d 490, 492 (Ind. 2009).


[5]   Indiana Post-Conviction Rule 2 provides:

               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 has been
               diligent in requesting permission to file a belated notice of appeal
               under this rule.
[6]   The defendant bears the burden of proving by a preponderance of the evidence

      that he was without fault in the delay of filing and was diligent in pursuing a

      belated appeal. Moshenek v. State, 868 N.E.2d 419, 422-23 (Ind. 2007), reh’g

      denied. There are no set standards of fault or diligence, and each case turns on

      its own facts. Id. at 423. Several factors are relevant to the defendant’s

      diligence and lack of fault in the delay of filing. These include the defendant’s

      level of awareness of his procedural remedy; the defendant’s age, education,




      2
        The State asserts a ruling on a petition for permission to file a belated notice of appeal under Post-
      Conviction Rule 2 is to be affirmed “unless it was based on an error of law or a clearly erroneous factual
      determination (often described in shorthand as ‘abuse of discretion’),” (Br. of Appellee at 6) (quoting
      Moshenek v. State, 868 N.E.2d 419, 423-24 (Ind. 2007)). But that is not our standard for review of this case, as
      no hearing was conducted. Moshenek was explicit that when there is no hearing our review is not so
      deferential:
               The trial court is in a better position to weigh evidence, assess the credibility of witnesses,
               and draw inferences. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). In Baysinger [v.
               State, 835 N.E.2d 223 (Ind. Ct. App. 2005)], the trial court did not hold a hearing before
               denying the defendant’s petition for permission to file a belated notice of appeal. 835
               N.E.2d at 224. The Court of Appeals owed no deference to the trial court’s factual
               determinations because they were based on a paper record.
      Id. at 424.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-78 | July 22, 2015                         Page 3 of 5
      and familiarity with the legal system; whether the defendant was informed of

      his appellate rights; and whether the defendant committed an act or omission

      that contributed to the delay. Id.


[7]   We acknowledge evidence Pringle is not well-educated. He dropped out of

      school in tenth grade and had been in special education classes due to learning

      disabilities. Still, we cannot find the trial court erred to the extent it determined

      Pringle was not diligent in pursuing permission to file a belated appeal.


[8]   At Pringle’s guilty plea hearing he was told a person who pleads guilty gives up

      the right to appeal the conviction but retains the right to appeal his sentence.

      Pringle was asked if he understood that, and he said he did. Pringle signed a

      Waiver of Rights document that advised him he was not waiving his right to

      appeal his sentence. He discussed the document with his counsel and he

      testified he did not have any questions about it. Pringle was aware of his appeal

      rights even though he was not again advised of those rights at his sentencing

      hearing.


[9]   The record does not reflect Pringle planned to challenge his sentence on direct

      appeal. Two months after he was sentenced, Pringle requested a transcript of

      his guilty plea hearing and the “record of proceedings.” (App. at 6.) In its

      Order denying permission to file the belated notice of appeal, the trial court

      found Pringle’s objective for requesting the transcript and record was not to

      appeal his sentence but to prepare a petition for post-conviction relief.




      Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-78 | July 22, 2015   Page 4 of 5
[10]   Over three months after he was sentenced, Pringle filed a motion for sentence

       modification, but did not attempt to appeal the sentence. Almost eight months

       after sentencing, Pringle petitioned for post-conviction relief. He raised a

       number of claims, one of which was “sentencing errors” in the form of an

       allegation the prosecutor 3 used as an aggravator the fact Pringle was on welfare.

       The transcript of the sentencing hearing reflects the trial court did not use that

       as an aggravator.


[11]   Pringle had substantial familiarity with the legal system, which our Supreme

       Court recognized in Moshenek as a factor in determining diligence and lack of

       fault in the delay of filing. 868 N.E.2d at 423. While he has apparently never

       brought a direct appeal, he had numerous felony and misdemeanor convictions

       in Indiana and elsewhere. Pringle was aware of his right to appeal his sentence

       and had extensive experience with the criminal justice system, but he did not

       seek permission to file a belated appeal for over two years after he was

       sentenced. The trial court did not err in denying Pringle’s motion and we

       therefore affirm.


[12]   Affirmed.


       Robb, J., and Mathias, J., concur.




       3
         In the petition, “Judge Munroo” [sic] is crossed out and “prosecutor” is handwritten in its place. (App. at
       143.)

       Court of Appeals of Indiana | Memorandum Decision 03A01-1502-CR-78 | July 22, 2015                 Page 5 of 5
