FOR PUBLICATION

APPELLANT PRO SE:                             ATTORNEYS FOR APPELLEE:

DEAN E. BLANCK                                GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

                                              ELLEN H. MEILAENDER
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                                                                      May 30 2013, 9:15 am


                              IN THE
                    COURT OF APPEALS OF INDIANA


DEAN ERIC BLANCK,                             )
                                              )
       Appellant-Defendant,                   )
                                              )
              vs.                             )     No. 47A01-1209-CR-424
                                              )
STATE OF INDIANA,                             )
                                              )
       Appellee-Plaintiff.                    )



                    APPEAL FROM THE LAWRENCE SUPERIOR COURT
                          The Honorable William G. Sleva, Judge
                             Cause No. 47D02-1106-FD-768




                                     May 30, 2013

                              OPINION - FOR PUBLICATION

DARDEN, Senior Judge
                             STATEMENT OF THE CASE

      Dean Blanck appeals the trial court’s denial of his petitions for permission to file a

belated notice of appeal and for appointment of appellate counsel. We affirm.

                                         ISSUE

      Blanck presents two issues, which we restate as one: whether the trial court erred

by denying Blanck’s petitions for permission to file a belated notice of appeal and for

appointment of appellate counsel.

                       FACTS AND PROCEDURAL HISTORY

      In June 2011, Blanck was charged with operating a vehicle while intoxicated, a

Class D felony, Ind. Code § 9-30-5-3 (2008); driving while suspended, a Class A

misdemeanor, Ind. Code § 9-24-19-2 (2000); and being a habitual substance offender, a

Class A misdemeanor, Ind. Code § 35-50-2-10 (2006). On December 20, 2011, Blanck

pleaded guilty to the charge of operating a vehicle while intoxicated as a Class D felony

and was sentenced to three years to be served on electronic monitoring, all pursuant to a

written plea agreement. The plea agreement also provided for the suspension of Blanck’s

license and for the State’s dismissal of the charges of driving while suspended and being

a habitual substance offender.

      On July 20, 2012, Blanck filed with the trial court a petition for permission to file

a belated notice of appeal and a petition for appointment of appellate counsel to pursue

proceedings under Indiana Post-Conviction Rule 2. Although the trial court initially

granted Blanck’s requests on August 15, 2012, it subsequently entered an order denying

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Blanck’s requests just a few days later on August 21, 2012. It is from this order of denial

that Blanck now appeals.

                              DISCUSSION AND DECISION

       Blanck contends the trial court erred by denying his petitions for permission to file

a belated notice of appeal and for appointment of appellate counsel. To support his

argument, he claims that his plea agreement was an “open plea” such that he has a right

to a belated direct appeal.

       A trial court’s ruling on a petition for permission to seek relief under Post–

Conviction Rule 2 should be affirmed unless the ruling is based on an error of law or a

clearly erroneous factual determination, typically referred to as an abuse of discretion.

Bosley v. State, 871 N.E.2d 999, 1002 (Ind. Ct. App. 2007).

       Indiana Post-Conviction Rule 2 states, in pertinent part:

       An “eligible defendant” for purposes of this Rule is a defendant 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 by filing a notice of appeal, filing a motion to correct error, or
       pursuing an appeal.

Thus, to qualify for the belated filings permitted by Post-Conviction Rule 2, a defendant

must first have the right to challenge on direct appeal his conviction or sentence after a

trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or

pursuing an appeal. See P-C.R. 2.

       Where a plea agreement includes a defendant’s agreement to a specific sentence,

the defendant may not challenge the sentence by means of a timely or belated direct

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appeal. Sholes v. State, 878 N.E.2d 1232, 1235 (Ind. 2008). However, where the guilty

plea is an “open plea,” that is, a plea agreement under which the trial court exercised

sentencing discretion, direct appeal challenges to sentences have been permitted. Id.

       Here, Blanck attempts to read sections (A) and (B) of his written plea agreement

as if they are in unison when they are clearly separate sections. Section (A), which was

left blank in Blanck’s plea agreement, is for an open plea and states: “Open sentencing

except that the executed portion of the sentence shall not exceed ________________.”

Appellant’s App. p. 18. Section (B), on the other hand, is for a fixed plea. Section (B) of

Blanck’s plea agreement was filled in and specifically states that Blanck will serve “3

days/years1 in jail with 0 days/years suspended with credit for ________ days served.

Sentence to be served on electronic monitoring.” Id. Hence, Blanck’s plea agreement,

as well as the transcript of the plea hearing, clearly show that Blanck’s three-year

sentence did not result from an open plea, but rather from his explicit agreement that for

operating a vehicle while intoxicated he would be sentenced to a fixed sentence of three

years on electronic monitoring. This plea of guilty with a fixed sentence precludes

Blanck from challenging his sentence by direct appeal. Therefore, because Blanck does

not have a right to challenge his sentence on direct appeal, he is not “eligible” to seek

permission for a belated appeal to challenge his sentence under Post-Conviction Rule 2.

Blanck’s available remedy, if any, is through the filing of a petition for post-conviction

relief. See Kling v. State, 837 N.E.2d 502, 504 (Ind. 2005) (noting that defendant who
1
 Although here we use underlining, we note that in the plea agreement the word “years” was circled. See
Appellant’s App. p. 18.
                                                  4
pleads guilty cannot challenge conviction by means of direct appeal but only through

petition for post-conviction relief). Thus, the trial court properly denied Blanck’s petition

for permission to file a belated notice of appeal.

       Moreover, because Blanck is ineligible to bring a belated appeal, the trial court

properly denied Blanck’s petition to appoint appellate counsel for that purpose.

                                      CONCLUSION

       For the reasons stated, we conclude that the trial court properly denied Blanck’s

petitions for permission to file a belated notice of appeal and for appointment of appellate

counsel.

       Affirmed.

RILEY, J., and BARNES, J., concur.




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