FOR PUBLICATION
ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MARK SMALL                                      GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                ANN L. GOODWIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana

                                                                              FILED
                                                                          May 23 2012, 8:43 am

                              IN THE
                                                                                 CLERK
                    COURT OF APPEALS OF INDIANA                                of the supreme court,
                                                                               court of appeals and
                                                                                      tax court




WILLIE HUGULEY,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )     No. 49A02-1105-CR-413
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                        APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Tanya Walton Pratt, Judge
                               Cause No. 49G01-9808-PC-71583


                                       May 23, 2012

                               OPINION - FOR PUBLICATION


SHARPNACK, Senior Judge
          Willie Huguley is attempting to revive his original appeal and appeal the denial of

his petition for postconviction relief. We conclude that Huguley cannot receive belated

appellate review of the denial of postconviction relief, but we remand to the trial court to

determine whether he has been without fault and diligent in pursuit of his original appeal.

          In 1999, Huguley was convicted of two counts of child molesting, both as Class A

felonies, and of a third charge of child molesting as a Class C felony. Ind. Code § 35-42-

4-3 (1996). His counsel timely initiated an appeal to this Court, indicating in the Notice

of Appeal that the anticipated issues on appeal were insufficiency of the evidence and

ineffective assistance of trial counsel. On February 15, 2000, Huguley, by counsel,

petitioned this Court to terminate the appeal and remand the cause to the trial court to

allow Huguley to seek postconviction relief and litigate the issue of ineffective assistance

of trial counsel. The petition was granted by this Court, terminating the appeal and

remanding to the trial court.

          Huguley’s counsel did file his petition for postconviction relief on April 12, 2002.

The trial court, after a hearing on the petition, entered findings and conclusions of law

denying postconviction relief on February 7, 2003. From the record, it appears that no

Notice of Appeal was ever filed to initiate an appeal from the denial of postconviction

relief.

          On May 3, 2011, Huguley’s present counsel filed an appearance and Petition for

Belated Perfection of Appeal (“Petition”) here under 49A05-9911-CR-504 (“CR-504”),

the original appeal cause. After some administrative shuffling, the current cause 49A02-

1105-CR-413 (“CR-413”) was opened, and the case has continued on that docket. On

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October 11, 2011, the motions panel granted Huguley’s Petition and directed transfer of

all filings from CR-504 to CR-413. Next, Huguley, through counsel, tendered a Verified

Motion to Temporarily Stay and Remand to Trial Court. The motions panel ordered that

motion to be held in abeyance to be ruled on by the writing panel. Thereafter briefing

was completed and the tendered motion is before us.

       In the Petition for Belated Perfection of Appeal, Huguley asserted that he had been

unaware that his petition for postconviction relief had been denied or that no Notice of

Appeal had been filed. Further, he asserted that he was without sufficient legal or factual

knowledge to know what had transpired in his case or how to proceed. The failure to file

a Notice of Appeal or a motion to otherwise reinstate his direct appeal, he alleges, was

not his; and he has been diligent to determine why his appeal was not pursued, to obtain

counsel, and to request permission to pursue a belated appeal.

       Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977), and Hatton v. State, 626

N.E.2d 442 (Ind. 1993), establish and recognize that during the pendency of an appeal

from a conviction, a defendant may have issues which could be the basis for

postconviction relief in addition to the issues raised on appeal. In such a circumstance,

on request, the appellate court may terminate the appeal and grant remand so the petition

for postconviction relief can be heard. If postconviction relief is granted, the issues

originally on appeal may be mooted and no further appeal is necessary. If postconviction

relief is denied, an appeal may be taken from the denial and the issues originally raised

on appeal may be added to the postconviction appeal. See Hatton, 626 N.E.2d at 442.



                                            3
       In this case, an appeal from the denial of postconviction relief was not initiated by

the filing of a Notice of Appeal. Huguley may not turn to Indiana Postconviction Rule

2(1) to seek leave to file a belated Notice of Appeal because Postconviction Rule 2 does

not apply to appeals from postconviction proceedings. See Taylor v. State, 939 N.E.2d

1132, 1135 (Ind. Ct. App. 2011) (citing Greer v. State, 685 N.E.2d 700, 703 (Ind. 1997)).

It also appears that Huguley may not seek belated perfection of the postconviction appeal

under Indiana Postconviction Rule 2(3) because, again, the appeal would be from a

postconviction proceeding and, like Postconviction Rule 2(1), Postconviction Rule 2(3)

would not apply, because no timely Notice of Appeal was filed as required by

Postconviction Rule 2(3)(a). As things stand, there is no appeal available from the denial

of Huguley’s petition for postconviction relief.

       However, there remains the matter of “revival” of the original appeal which was

terminated to permit the postconviction process to go forward. Review of this issue

requires us to examine Indiana Postconviction Rule 2(3), which provides:

       An eligible defendant convicted after a trial or plea of guilty may petition
       the appellate tribunal for permission to pursue a belated appeal of the
       conviction or sentence if:

              (a) the defendant filed a timely notice of appeal;

              (b) no appeal was perfected for the defendant or the appeal was
              dismissed for failing to take a necessary step to pursue the appeal;

              (c) the failure to perfect the appeal or take the necessary step was not
              due to the fault of the defendant; and

              (d) the defendant has been diligent in requesting permission to
              pursue a belated appeal.


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       In this case, the original appeal was timely initiated, satisfying Postconviction

Rule 2(3)(a). Although the present case may not precisely fit Rule 2(3)(b), it is clear that

there was failure to take a necessary step to pursue the appeal. That is, Huguley did not

pursue the appeal of the postconviction judgment, which was a necessary step to bring

forward the issues from the original appeal. We think the requirement of Rule 2(3)(b)

has been met.

       That brings us to the requirements of Postconviction Rule 2(3)(c) and (d).

Huguley must demonstrate that the failure to perfect the appeal from the postconviction

denial was not due to his fault. Huguley must also demonstrate that he has been diligent

in requesting permission to pursue a belated appeal.

       Huguley contends that he has met the burden by these statements under the

penalty of perjury:

             18. Mr. Huguley’s direct appeal was terminated on motion by his
       counsel, who had sought a stay of the direct appeal.

             19. Mr. Huguley was unaware his PCR was denied by the Marion
       Superior Court or that no Notice of Appeal was filed with the Marion
       Superior Court.

              20. The filing of a Notice of Appeal or a motion to otherwise
       reinstate his direct appeal was the necessary step to take to pursue his direct
       appeal, but Mr. Huguley was without sufficient legal or factual knowledge
       to know what had transpired in his case or how to proceed in his case.

             21. The failure to take the steps described in paragraph 20 was not
       Mr. Huguley’s as Mr. Huguley would have taken whatever steps were
       necessary to reinstate and pursue his direct appeal.

             22. Mr. Huguley has been diligent in trying to determine why his
       appeal was not pursued, in securing post-conviction counsel, and in
       otherwise requesting permission to pursue a belated appeal.

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Appellant’s App. pp. 54-55. The State contends that such conclusory assertions are

insufficient to show diligence and lack of fault.

       Huguley’s assertions are not in themselves sufficient to carry his burden, but they

are sufficient for us to allow him an opportunity to make a factual case to support the

allegations. We grant Huguley’s Verified Motion to Temporarily Stay and Remand to

Trial Court in part. We terminate this appeal and remand this cause to the trial court to

determine whether or not Huguley’s failure to pursue the appeal of the postconviction

judgment was his fault and whether or not Huguley has been diligent. If the trial court

finds favorably, he may return to this Court and continue the appeal of his case as

originally initiated. There can be no appeal of the postconviction denial.

       Remanded.

BAILEY, J., and CRONE, J., concur.




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