MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Apr 07 2016, 7:28 am
this Memorandum Decision shall not be
                                                                                CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
court except for the purpose of establishing                                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Ryan Patrick Rucker                                      Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ryan Patrick Rucker,                                     April 7, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         35A05-1509-CR-01448
        v.                                               Appeal from the Huntington
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas M. Hakes,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         35C01-1110-FA-00217



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016                Page 1 of 7
                                          Case Summary
[1]   In 2012, Ryan Patrick Rucker (“Rucker”) pled guilty to Child Molesting, as a

      Class A felony. In 2015, while pursuing post-conviction remedies, Rucker filed

      a petition to pursue a belated appeal. The trial court denied the petition, and

      Rucker appeals, presenting the sole issue of whether the trial court abused its

      discretion when it denied his petition for permission to file a belated notice of

      appeal.


[2]   We affirm.



                            Facts and Procedural History
[3]   On October 18, 2011, Rucker was charged with Child Molesting. On March

      12, 2012, Rucker entered a guilty plea as the result of a plea agreement.


[4]   On March 20, 2012, Rucker’s trial counsel, Ryan Painter (“Painter”) moved to

      withdraw his appearance. On March 21, 2012, Rucker filed several motions,

      including a motion to withdraw his guilty plea. On March 26, 2012, the trial

      court denied Rucker’s motions, granted Painter’s motion to withdraw, and

      appointed new counsel, Matthew Grantham (“Grantham”).


[5]   On April 23, 2012, Rucker, by counsel, filed a motion to withdraw his guilty

      plea. The trial court denied the motion on May 10, 2012.




      Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016   Page 2 of 7
[6]    On May 21, 2012, a sentencing hearing was conducted at which the trial court

       accepted the guilty plea proffered on March 12, 2012, entered judgment against

       Rucker, and sentenced Rucker to twenty-five years imprisonment.


[7]    On the day of the sentencing hearing, Rucker and Grantham engaged in some

       discussion of the possibility of Rucker seeking post-conviction relief. Grantham

       suggested that Rucker’s best course of action might be a post-conviction

       petition, rather than a direct appeal of the trial court’s denial of Rucker’s

       motion to withdraw the guilty plea.


[8]    On June 6, 2012, Grantham filed his motion to withdraw his appearance as

       Rucker’s counsel. The trial court granted the motion on June 6, 2012.


[9]    On July 9, 2012, Rucker sent a letter to Grantham requesting documents

       Rucker believed were relevant to a post-conviction petition and requesting

       clarification of Grantham’s suggestions concerning post-conviction remedies.

       Rucker also asked Grantham how long Rucker could wait before filing a

       belated appeal.


[10]   On July 19, 2012, Grantham sent a responsive letter in which he explained

       further his recommendation that Rucker pursue post-conviction remedies.

       Grantham’s letter stated:


               There is no time limit, strictly speaking, on a belated appeal.
               You have to be diligent in pursuing it and file within a reasonable
               time. The rule is similar to the rule for filing [for post-conviction
               relief].


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       (App’x at 16.)


[11]   On August 20, 2012, under Cause Number 35C01-1208-PC-11 (“PC-11”),

       Rucker filed a petition for post-conviction relief. Rucker was represented by

       counsel for a portion of the proceedings, but on August 28, 2014, the office of

       the State Public Defender withdrew its appearance on Rucker’s behalf. From

       this point forward, Rucker proceeded pro se.


[12]   On August 13, 2015, Rucker filed a petition for permission to file a belated

       notice of appeal in the instant case, and a request for a stay of post-conviction

       proceedings in PC-11.


[13]   A hearing was conducted on Rucker’s petition on August 25, 2015. On August

       26, 2015, the trial court denied Rucker’s petition and request for a stay.


[14]   This appeal ensued.



                                  Discussion and Decision
[15]   In his appeal, Rucker argues that the trial court abused its discretion when it

       found that Rucker did not diligently pursue an appeal of the denial of his

       motion to withdraw the guilty plea.


[16]   Indiana Post-Conviction Rule 2 governs the pursuit of a belated appeal:


               (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;


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                        (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.


               (b) Form of petition. There is no prescribed form of petition for
               permission to file a belated notice of appeal. The petitioner’s
               proposed notice of appeal may be filed as an Exhibit to the
               petition.


               (c) Factors in granting or denying permission. If the trial court finds
               that the requirements of Section 1(a) are met, it shall permit the
               defendant to file the belated notice of appeal. Otherwise, it shall
               deny permission.


       Ind. Post-Conviction Rule 2(1).


[17]   Whether to grant permission to file a belated notice of appeal is a matter 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. at 422-23. There

       are no set standards for fault or diligence. Id. at 423. Rather, “each case turns

       on its own facts,” id., and numerous factors may be applied, including:


               The defendant’s level of awareness of his procedural remedy,
               age, education, familiarity with the legal system, whether the

       Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016   Page 5 of 7
               defendant was informed of his appellate rights, and whether he
               committed an act or omission which contributed to the delay.


       Id. (quoting Land v. State, 640 N.E.2d 106, 108 (Ind. Ct. App. 1994)).


[18]   Here, Rucker contends that he did not become aware that he could pursue a

       direct appeal of the trial court’s denial of his motion to withdraw the guilty plea

       until sometime in the middle of 2015, and thus he was diligent in pursuing a

       belated appeal.


[19]   Our review of the record discloses that Rucker’s letter to Grantham on July 9,

       2012, includes a discussion of the possibility of seeking permission to pursue a

       belated direct appeal: “I am a little confused as to why you said that a PCR was

       the best course of action for me and not a ‘direct appeal’ as the appellate

       procedure states.” (App’x at 13.) Later in the letter, Rucker asks Grantham to

       clarify the timeline under which Rucker might need to pursue a belated direct

       appeal: “what is the time limit on a belated appeal?” (App’x at 14.)

       Grantham’s letter in response provided Rucker with answers to these inquiries.


[20]   Thus, as early as July 2012, Rucker was aware that he could pursue a belated

       appeal. The trial court’s finding that Rucker was not diligent in pursuing a

       belated appeal, then, is not clearly against the logic and effect of the facts and

       circumstances before it. See Bethea v. State, 983 N.E.2d 1134, 1139 (Ind. 2013)

       (“An abuse of discretion occurs if the decision is clearly against the logic and

       effect of the facts and circumstances before the court.”) We accordingly find no




       Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016   Page 6 of 7
       abuse of discretion in the court’s denial of Rucker’s petition for permission to

       file a belated notice of appeal.1


[21]   Affirmed.


       Bradford, J., and Altice, J., concur.




       1
        To the extent Rucker raises questions of ineffectiveness on Grantham’s part, we note that Rucker may, if
       properly pleaded, be able to pursue this claim within the context of his post-conviction proceedings. We
       accordingly decline to address such questions in our opinion today.

       Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016             Page 7 of 7
