MEMORANDUM DECISION                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                    Apr 12 2017, 9:54 am

this Memorandum Decision shall not be                                          CLERK
                                                                           Indiana Supreme Court
regarded as precedent or cited before any                                     Court of Appeals
                                                                                and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Theodore J. Minch, Esq.                                  Curtis T. Hill, Jr.
Sovich Minch, LLP                                        Attorney General of Indiana
Indianapolis, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Damaris Anthony Smith,                                   April 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         73A01-1605-CR-1112
        v.                                               Appeal from the Shelby Superior
                                                         Court
State of Indiana,                                        The Honorable Chris D. Monroe,
Appellee-Plaintiff                                       Senior Judge
                                                         Trial Court Cause No.
                                                         73D01-1406-FB-41



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017              Page 1 of 10
[1]   Damaris Anthony Smith appeals the court’s denial of his petition to file a

      belated notice of appeal under Indiana Post-Conviction Rule 2(1). As the trial

      court did not abuse its broad discretion, we affirm.



                                Facts and Procedural History
[2]   On May 26, 2015, a jury found Smith guilty of Class B felony burglary 1 and

      Class A misdemeanor driving while suspended. 2 On June 12, 2015, the trial

      court ordered Smith to serve concurrent terms of fourteen years and one

      year. At the sentencing hearing held that day, the trial court advised Smith of

      his right to appeal:


                 THE COURT: . . . . Now, Mr. Smith, you heard the sentence of
                 the Court in this case. You are entitled to take an appeal with
                 regard to the conviction itself and/or the sentence that has been
                 imposed. You can do that by one of two ways. You can either
                 file what’s called a direct appeal or you can file what’s called a
                 motion to correct error. There are some technical reasons why
                 you might want to do one as opposed to the other, and I won’t
                 get into those because I’m not sure I completely understand all of
                 them. But if you wish to appeal the case you must file
                 something, either the direct appeal or the motion to correct errors
                 within 30 days from today’s date. If you fail to do that then your
                 right to take an appeal can be waived, forfeited or given up. If
                 you file a motion to correct errors and that motion is denied, then
                 following that you must file a motion . . . notice of appeal within
                 30 days from the denial of the motion to correct errors. If the



      1
          Ind. Code § 35-43-2-1(1)(B)(i) (1999).
      2
          Ind. Code § 9-24-19-2 (2012).


      Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017   Page 2 of 10
        motion to correct errors were to be granted then it would depend
        upon what the allegations under that motion were as to what the
        remedy might be. You have the right to be represented by an
        attorney with regard to any appeal of any part of what has
        transpired in your case. If you cannot afford an attorney, one
        can be appointed to represent you at no expense to you for
        purposes of taking an appeal. Do you understand these rights?


        MR. SMITH: Yes, I understand.


        THE COURT: Do you wish to take an appeal from this matter?


        MR. SMITH: I don’t know. I’m gonna think about it.


        THE COURT: I’m sorry. Think about it?


        MR. SMITH: I said I’m gonna think about it.


        THE COURT: Okay. Well you certainly are entitled to think
        about it, and you’re not obligated one way or the other with
        regard to any choice you may make today, but I just want to
        emphasize, you have 30 days. So if you say you’re gonna think
        about it, that’s fine. But if you. . . I’m not gonna call you up in a
        week or two or three weeks and say hey, have you made up your
        mind.


        It’s up to you to take the affirmative step to advise the Court
        what you plan to do. Okay.


        MR. SMITH: Understood.


                                              *****


Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017   Page 3 of 10
              THE COURT: . . . . But I would encourage you, get something
              done right away because if you decide on day 29 you want to do
              something, I think, you know, we started this trial on the 20 . . .
              Well, whatever it was. On Tuesday, the day after Memorial
              day. If you call an attorney and say, hey, I’m ready to file the
              appeal and the attorney is on vacation or in trial or something
              else, you might give up your right to an appeal by not filing
              something on a timely basis. Okay. Alright.


      (Tr. at 29-33.)


[3]   At the end of the sentencing hearing, Smith requested the return of two cell

      phones that were taken from him for evidence:

              I’ve talked to the Prosecuting Attorney about this. There were
              some, there were some phones taken from the Defendant. Some
              items of personal property were taken as a result of this
              case. Now that the co-defendant and his case are concluded, I
              can’t see any evidentiary reason for keeping them. They should
              be released back (inaudible).


      (Id. at 34.) The prosecutor agreed to return Smith’s two phones. The court

      explained its “policy has been to not necessarily release any evidence until the

      30 days has passed with regard to an appeal. If there is . . . [a]n appeal taken,

      then that evidence might be necessary for a re-trial.” (Id. at 35-36.) Defense

      counsel agreed that was “fine.” (Id. at 36.)


[4]   Three days after sentencing, on June 15, 2015, Smith’s girlfriend, Alicia

      Wright, called the police officer who had investigated Smith’s crimes, Detective

      Darren Chandler of the Shelby County Sheriff’s Department, and asked to pick

      up all of Smith’s property including his two cell phones. Detective Chandler
      Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017   Page 4 of 10
      conferred with the prosecutor, who informed him the cell phones could not be

      released “until after all appeals were completed.” (Id. at 100.) Detective

      Chandler called Wright back to explain this to her and then he “spoke with

      Smith in an interview room in the Shelby County Jail and explained the same

      to him” in a conversation that was recorded. (Id. at 100-01.)


[5]   On August 10, 2015, Wright left a message for Detective Chandler saying that

      she wanted the cell phones. On August 27, 2015, Wright again called Detective

      Chandler and this time she read him the last line of the sentencing order, which

      states: “Defendant requests property be released. Court approves request

      however, property is not to be released for 30 days in case appeal is filed.”

      (Appellant’s App. Vol. 2 at 34.) Wright acknowledged that no appeal had been

      filed and asked for the phones. Detective Chandler informed Wright that he

      could not release Smith’s property to her without documentation that Smith

      wanted his property released to her. On September 1, 2015, Smith sent a letter

      to Detective Chandler giving permission to release his cell phones to Wright.

      On October 1, 2015, Detective Chandler released the cell phones to Wright.


[6]   On December 14, 2015, Smith requested permission to file a belated notice of

      appeal. The court heard testimony from Smith and Detective Chandler, and

      then it took the case under advisement. After reviewing the court’s file and the

      sentencing hearing, the court summarily denied Smith’s request.



                                 Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017   Page 5 of 10
[7]   Defendants who are eligible to use Indiana Post-Conviction Rule 2 are those

      “who, but for the defendant’s failure to do so timely, would have the right to

      challenge on direct appeal a conviction or sentence after a trial or plea of guilty .

      . . .” Section 1 of Rule 2 explains the process for filing a belated notice of

      appeal:


              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.


      P-C. R. 2(1)(a). If the court finds the defendant met those requirements, “it

      shall permit the defendant to file the belated notice of appeal. Otherwise, it

      shall deny permission.” P-C. R. 2(1)(c).


[8]   To obtain relief, a defendant must prove by a preponderance of the evidence he

      was not at fault for the failure to timely file and diligently requested permission

      to file. Strong v. State, 29 N.E.3d 760, 764 (Ind. Ct. App. 2015). “There are no

      set standards of fault or diligence, and each case turns on its own facts.”

      Moshenek v. State, 868 N.E.2d 419, 423 (Ind. 2007), reh’g denied. Some of the

      many factors the trial court may consider include the defendant’s “age,

      Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017   Page 6 of 10
       education, familiarity with the legal system,” knowledge of right to appeal, and

       responsibility for the delay. Id.


[9]    Because of the fact-sensitive nature of the determinations about diligence and

       fault, “we give substantial deference to the trial court’s ruling.” Id. Thus, we

       review the trial court’s decision for an abuse of discretion. Id. at 422 (“decision

       . . . is within the sound discretion of the trial court”). Smith has not

       demonstrated the trial court abused its discretion in denying his petition.


[10]   Smith’s statements to the trial court have been inconsistent regarding whether

       he intended to file a timely appeal and whether he had reason to think that

       someone in his family had hired counsel for him to initiate a timely appeal. For

       instance, at the hearing on his motion to file a belated notice of appeal, Smith

       confirmed that, at his sentencing hearing on June 6, 2015, he had “advise[d] the

       [trial] court that [he was] going to hire counsel.” (Tr. at 44.) But the sentencing

       hearing transcript shows that he told the trial court only that he was “gonna

       think about” whether he wanted to take an appeal. (Id. at 30.) Smith did not

       tell the trial court that he planned to hire an attorney for an appeal.


[11]   Then, at the hearing on his motion to file belated notice of appeal, Smith stated

       that “it was my intent” to hire counsel, (id. at 45), but “[i]t’s hard to hire

       counsel or go talk to anybody when you are behind bars.” (Id.) Yet Smith also

       testified at the hearing that he had called his mother “a day or two after [the

       May 26, 2015,] trial” from the Shelby County Jail and asked her to hire a

       lawyer for him, (id. at 63), so he thought his family had hired a lawyer and that


       Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017   Page 7 of 10
       his appeal was underway. That statement was inconsistent with his statement

       at his June 6, 2015, sentencing hearing that he was “gonna think about“

       whether he wanted to take an appeal. (Id. at 30.) In short, Smith gave

       inconsistent statements to the trial court regarding whether he had intended to

       file an appeal and thought a timely appeal had been filed on his behalf, and the

       court was entitled to assess his credibility in ruling on his motion to file a

       belated notice of appeal.


[12]   In addition, the trial court judge, the sentencing order, and Detective Chandler

       informed Smith and Wright on multiple occasions that the State would not turn

       over Smith’s two cell phones that were being held as evidence until his appeal

       concluded or his opportunity to file an appeal had lapsed. When Wright

       contacted Detective Chandler in August 2015 about picking up the phones, she

       acknowledged that no appeal was filed, which suggests Smith knew at that time

       as well. If he did not know in August 2015 that no appeal had been filed, he

       certainly should have understood by the beginning of September 2015 when he

       sent a letter to Detective Chandler authorizing his girlfriend to take possession

       of his cell phones.


[13]   Moreover, the record before us does not suggest Smith was young, uneducated,

       or unfamiliar with the legal system. Smith was 28 years old when the court

       imposed this sentence. Smith had graduated from high school and attended

       one semester at Ivy Tech. (Appellant’s App. Vol. 3 at 37.) And, while Smith

       may have never before filed an appeal, the probation department summarized

       his history with legal system as including

       Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017   Page 8 of 10
               one felony and one misdemeanor conviction; he had nine cases
               that were dismissed. He has been committed to DOC on one
               occasion. There is an active warrant out of Marion County for
               failure to appear on a pending case. Furthermore, while out on
               bond in Shelby County, the defendant committed a new felony
               drug offense in Marion County and that case is currently
               pending. His juvenile history consists of two status offenses, but
               no action [was] taken in either case.


       (Id. at 42.)


[14]   The record suggests Smith’s only concern following sentencing was obtaining

       possession of his cell phones. As he could not receive those phones until the

       conclusion of any appeal he might take, the logical inference is that Smith

       intentionally failed to file an appeal so that he could get his phones from

       evidence. Thus, we cannot hold the court abused its discretion if it found Smith

       was at fault for his failure to file a timely appeal. Nor could we hold the trial

       court erred if it found Smith was not diligent in pursuing his right to file a

       belated appeal, when the evidence demonstrates Smith knew in August 2015

       that no appeal had been filed but he did not request permission to file a belated

       notice of appeal until December 2015. In light of the evidence suggesting Smith

       was both at fault and not diligent, we hold the court did not err in denying his

       petition. See P-C. R. 2(1)(c) (if defendant does not prove both elements of the

       test, the court “shall deny permission” to file a belated notice of appeal).



                                               Conclusion


       Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017   Page 9 of 10
[15]   As the record supports the trial court’s decision to deny Smith’s petition for

       permission to file a belated notice of appeal, we affirm.


[16]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017   Page 10 of 10
