                                                              FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                  May 17 2012, 9:28 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                       CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

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

CHRIS HITZ-BRADLEY                              MONIKA PREKOPA TALBOT
Deputy Public Defender                          Deputy Attorney General
Indianapolis, Indiana                           Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL LEE MASSING,                            )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 20A04-1110-CR-602
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ELKHART CIRCUIT COURT
                       The Honorable Gene R. Duffin, Special Judge
                              Cause No. 20C01-9701-CF-4


                                       May 17, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

       Appellant-Petitioner, Michael Lee Massing (Massing), appeals the trial court’s

denial of his petition to file a belated notice of appeal.

       We affirm.

                                            ISSUE

       Massing raises one issue on appeal, which we restate as: Whether the trial court

properly determined that Massing had not been diligent in seeking an appeal of his

sentence following his plea agreement.

                         FACTS AND PROCEDURAL HISTORY

       On January 27, 1997, the State filed an Information charging Massing with

murder, a felony. On March 27, 1997, Massing pled guilty pursuant to a guilty plea

agreement which capped his sentence at fifty-five years. On May 1, 1997, the trial court

sentenced Massing to the maximum sentence allowed under the plea.                   The plea

agreement included the statement that Massing “reserves the right to file for sentence

modification.” (Petitioner’s Exh. A, p. 2). On September 15, 1997, Massing filed a

praecipe for his guilty plea transcript, which the trial court granted. The transcript was

mailed to Massing on December 9, 1997. On January 14, 2000, Massing filed another

request for a transcript of his guilty plea hearing, alleging that he had lost the first copy.

The trial court denied his request.

       On December 8, 2006, Massing filed a motion to modify his sentence.                On

December 21, 2006, the trial court found that because more than a year had passed since


                                               2
sentencing, it did not have jurisdiction to decide the motion without the State’s

recommendation and referred the motion to the State.1 On January 8, 2007, Massing filed

a motion to correct error. The trial court took the motion under advisement and requested

a progress report from the Indiana Department of Correction. On June 7, 2007, in the

absence of the progress report, the trial court denied Massing’s motion to correct error.

          On June 25, 2007, Massing filed a verified petition for leave to file a belated

notice of appeal which was denied by the trial court without a hearing. Massing appealed

and we remanded the case for an evidentiary hearing. See Massing v. State, 20A04-0705-

CR-461 (Ind. Ct. App. Jan. 14, 2008). Thereafter, the trial court held an evidentiary

hearing on March 10 and July 22, 2011. During the hearing, Massing’s trial counsel

testified that at the time of Massing’s guilty plea, he did not customarily advise his clients

of their appellate rights because he left that to the trial judge’s discretion. However, as a

general rule, he explained sentence modifications to his clients. Massing stated during

the hearing that it was his understanding from the plea agreement that he would return to

court within a year after sentencing for a sentence modification. He clarified that he was

not aware of his right to appeal his sentence until 2006, when he talked to a law clerk at

the Indiana State Prison. Massing testified that he had obtained his GED in 2001, his

associate degree in 2004, and his bachelor’s degree in 2006. On September 30, 2011, the

trial court denied Massing’s petition to file a belated appeal.

          Massing now appeals. Additional facts will be provided as necessary.

                                 DISCUSSION AND DECISION

1
    The Chronological Case Summary does not include the State’s recommendation.


                                                   3
       Indiana Post-Conviction Rule 2(1) provides a defendant an opportunity to petition

the trial court for permission to file a belated notice of appeal. It provides that

       [w]here an eligible defendant convicted after a trial or plea of guilty fails to
       file a timely notice of appeal, a petition for permission to file a belated
       notice of appeal for appeal of the conviction may be filed with the trial
       court where:

       (a) the failure to file a timely notice of appeal was not due to the fault of the
       defendant; and

       (b) the defendant has been diligent in requesting permission to file a belated
       notice of appeal under this rule.

       The decision whether to grant permission to file a belated notice of appeal is

within the sound discretion of the trial court. Moshenek v. State, 868 N.E.2d 419, 422

(Ind. 2007). 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

permission to file a belated motion to appeal. Id. There are no set standards of fault or

diligence, and each case turns on its own facts. Id. 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, age, education, familiarity with

the legal system, whether the defendant was informed of his appellate rights, and whether

he committed an act or omission which contributed to the delay. Id. at 423. Because

diligence and relative fault are fact sensitive, we give substantial deference to the trial

court’s ruling. Id.

       Initially, we note that the trial court failed to inform Massing of his appellate

rights during his sentencing hearing. In Moshenek, our supreme court elaborated that:



                                               4
       In order to meet the requirements of Post-Conviction Rule 2, it is not
       sufficient to point only to the fact that the trial court did not advise the
       defendant of the right to appeal a sentence after an “open plea.” The right
       to appeal a sentence is not among those rights of which a trial court is
       required to inform a defendant before accepting a guilty plea. The fact that
       a trial court did not advise a defendant about this right can establish that the
       defendant was without fault in the delay of filing a timely appeal.
       However, a defendant still must establish diligence. Several factors are
       relevant to this inquiry. Among them are the overall passage of time; the
       extent to which the defendant was aware of relevant facts; and the degree to
       which delays are attributable to other parties, as . . . , the preparation of
       transcripts. When the overall time stretches into decades, a belated appeal
       becomes particularly problematic because of the risk that significant
       problems will be encountered in any retrial due to unavailable evidence or
       witnesses or failing memories.

Id. at 424.

       Massing pled guilty in March of 1997 and was sentenced on May 1, 1997. He did

not file a praecipe within thirty days of his sentencing. However, within four months of

sentencing, in September 1997, Massing filed a praecipe for his guilty plea transcript

which was granted and the transcript was mailed to him on December 9, 1997.

Subsequently, two years later, on January 14, 2000, he requested another copy of this

transcript, which was denied by the trial court. Thereafter, Massing failed to pursue any

relief until six years later, on December 8, 2006, when he filed a motion to modify his

sentence. After the trial court’s denial of his motion for sentence modification, Massing

filed his petition to file a belated appeal.

       We cannot say that Massing was diligent in pursuing his petition to file a belated

appeal under Post-Conviction Rule 2. Even though Massing quickly obtained a copy of

the transcript of the guilty plea hearing, he sat on his rights for nine years following his

sentencing, until December 8, 2006, when he initiated a motion to modify his sentence.


                                               5
Furthermore, Massing’s conviction for murder was not his first encounter with the

criminal system:        the record indicates that Massing appeared in several juvenile

proceedings and appeared before a military tribunal.                   Moreover, Massing is not

uneducated: he furthered his education while incarcerated by obtaining his GED, his

associate degree, and his bachelor’s degree. He worked in the prison library, had access

to books, and the prison law clerk.2 In light of these facts, Massing could have acted on

his sentence challenge well before he actually did. We affirm the trial court’s denial of

his petition to file a belated appeal.

                                           CONCLUSION

        Based on the foregoing, we conclude that the trial court properly determined that

Massing had not been diligent in seeking an appeal of his sentence following a plea

agreement.

        Affirmed.

NAJAM, J. and DARDEN, J. concur




2
 Massing also asserts that a petition for post-conviction relief was the only way to challenge a sentence
after a guilty plea at the time of his conviction. We disagree. In 1996, the year before Massing pled
guilty, our supreme court stated in Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind. 1996) that although a
direct appeal may not be used to allege errors involving a conviction based upon a guilty plea, it may be
used to challenge sentencing errors.


                                                   6
