                                                                           Jun 25 2013, 6:02 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

JAMES D. CRUM                                GREGORY F. ZOELLER
Coots, Henke & Wheeler, P.C.                 Attorney General of Indiana
Carmel, Indiana
                                             ELLEN H. MEILAENDER
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

GEORGE COLE,                                 )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 29A02-1301-CR-4
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE HAMILTON CIRCUIT COURT
                          The Honorable Paul A. Felix, Judge
                           Cause No. 29C01-6212-CF-8394



                                    June 25, 2013


                             OPINION - FOR PUBLICATION


BARTEAU, Senior Judge
                             STATEMENT OF THE CASE

       George Cole appeals the denial of his petition for permission to file a belated

notice of appeal following his 1963 murder conviction and life sentence. We affirm.

                                          ISSUE

       The sole issue in this appeal is whether the trial court abused its discretion by

denying Cole’s petition for permission to file a belated notice of appeal.

                        FACTS AND PROCEDURAL HISTORY

       In 1961, a cab driver was shot at the corner of 23rd and North Illinois Streets in

Indianapolis. Cole was later charged with first degree murder and murder in attempt to

perpetrate a robbery. In 1963, on the day of trial, Cole pleaded guilty to the lesser

included offense of second degree murder. The trial court accepted the plea, entered a

judgment of conviction, and dismissed the second count on the State’s request. At his

sentencing hearing, Cole asked to withdraw his guilty plea, stating only that he had

changed his mind and would rather be tried. The court denied the request and imposed

the then-statutorily-mandated sentence of life imprisonment. Cole did not file a direct

appeal.

       In 1969, six years after sentencing, Cole filed a petition for post-conviction relief.

The court appointed counsel for Cole and later heard evidence at a hearing. The petition

was denied on March 22, 1971.

       On April 2, 1971, Cole escaped from prison. Thirty years later in April 2001, he

was apprehended and returned to prison. During his thirty-year period of escape, Cole



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neither talked to an attorney about his case nor tried to challenge his conviction or

sentence. Upon being returned to prison, he filed several items, including the following:

   – In May 2001, Cole filed a second petition for post-conviction relief, which was
     later dismissed.

   – In November 2001, Cole filed a motion for jail time credit, which was later
     denied.

   – In March 2002, an attorney entered an appearance for Cole. In January 2004, that
     attorney filed a request with this Court to file a successive petition for post-
     conviction relief, which was later denied.

   – In April 2003, Cole filed a clemency petition, which was apparently denied.

   – In July 2007, Cole filed a motion for modification of sentence, which was later
     denied.

   – In October 2008, Cole filed a motion to correct erroneous sentence, which was
     denied on December 8, 2008. Cole filed a notice of appeal on January 12, 2009,
     but this Court dismissed his appeal with prejudice.

   – In February 2011, Cole filed a petition for jail time credit, which was later denied.

       It was not until April 2012, nearly forty-nine years after his conviction and eleven

years after he was returned to prison, that Cole filed a motion asking the court to appoint

counsel to pursue a belated appeal. The court appointed counsel the same month, and

counsel subsequently filed a petition for permission to file a belated notice of appeal.

The State responded to the petition. At a hearing, Cole claimed he was unaware he could

seek permission to file a belated appeal until April 2012. He also claimed he had

proceeded pro se on everything he had filed from the time after his conviction up until the

appointment of counsel in April 2012.




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       The court issued an order after taking the matter under advisement. In the order,

the court determined that Cole was not credible in claiming he had just learned of the

possibility of filing a belated notice of appeal. It further noted that a fact in favor of Cole

was that he had not been advised of his right to appeal the denial of his request to

withdraw his guilty plea, but it weighed that fact against his escape. The court then

concluded:

       When this Court considers the factors outlined above with the facts
       established at the hearing, considers the inconsistent statements of the
       Defendant[ ], and his escape from prison for thirty (30) years, and his
       eleven year delay after returning to prison in filing this Petition for
       Permission for Belated Notice of Appeal, the Court finds that the Defendant
       was not completely without fault nor was he diligent with this filing.

Appellant’s App. p. 10. The court thus denied the petition for permission to file a belated

notice of appeal. Cole now appeals.

                              DISCUSSION AND DECISION

       Belated notices of appeal are governed by Indiana Post-Conviction Rule 2(1),

which provides:

       (a) Required Showings. 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.




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We review a trial court’s ruling on a petition for permission to file a belated notice of

appeal for an abuse of discretion.1 Moshenek v. State, 868 N.E.2d 419, 422, 423-24 (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 notice of appeal. Id. at 422-23.

        Cole contends he was both without fault in failing to file a timely notice of appeal

and diligent in pursuing permission to file a belated notice of appeal. The State does not

concede the lack of fault component but addresses only Cole’s lack of diligence. We

agree that this case may be resolved on the diligence component alone. As to the

diligence inquiry in this context, relevant considerations include 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.2 Id. at 424.

        The essence of Cole’s argument is that he was diligent because he pursued a

belated appeal as soon as he learned from a fellow inmate in April 2012 that he could do

so. He says his numerous filings since he was returned to prison are evidence he would

have already pursued a belated appeal had he known of that option.

        However, the trial court explicitly found that Cole was not credible in claiming he

had just learned of the possibility of filing a belated notice of appeal. We may not disturb


1
 The trial court here held a hearing. Had there been no hearing, we would review the ruling on the
petition for permission to file a belated notice of appeal de novo. See Bosley v. State, 871 N.E.2d 999,
1002 (Ind. Ct. App. 2007).
2
 Moshenek also noted that “[w]hen 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.” 868 N.E.2d at 424.
                                                   5
that credibility determination on appeal. See id. at 424 (“The trial court is in a better

position to weigh evidence, assess the credibility of witnesses, and draw inferences.”).

       In any event, Cole claimed he had never had counsel at any time after his

conviction up until the appointment of counsel in April 2012. But the record shows he

had the assistance of counsel in his proceedings for post-conviction relief and in filing a

request with this Court to file a successive petition for post-conviction relief. This

contradiction may well have reflected on Cole’s credibility. That he had counsel in those

proceedings may also have led the trial court to believe that at least one of his attorneys

would have discussed with him the possibility of a belated appeal. Regardless of the

basis of the court’s credibility determination, it was well within its discretion to

disbelieve Cole’s claim that he had just learned about belated appeals.

       Given that the trial court did not believe Cole’s claim as well as the fact that nearly

five decades had passed from the time of his conviction until he finally sought an appeal

under Post-Conviction Rule 2, we cannot say the court abused its discretion by

concluding Cole was not diligent in pursuing permission to file a belated notice of appeal

and by thus denying his petition for permission to file a belated notice of appeal.

                                      CONCLUSION

       We therefore affirm.

ROBB, C.J., and BROWN, J., concur.




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