MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 Feb 05 2016, 9:02 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.



APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
David Streeter                                           Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Streeter,                                          February 5, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         44A03-1505-CR-449
        v.                                               Appeal from the LaGrange Circuit
                                                         Court
State of Indiana,                                        The Honorable J. S. Vanderbeck,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No. 44C01-
                                                         9309-CF-78




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 44A03-1505-CR-449 | February 5, 2016       Page 1 of 7
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, David L. Streeter (Streeter), appeals the trial court’s

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


[2]   We affirm.


                                                     ISSUE

[3]   Streeter raises several issues on appeal, which we consolidate and restate as

      follows: Whether the trial court abused its discretion by denying Streeter’s

      petition to file a belated notice of appeal.


                             FACTS AND PROCEDURAL HISTORY


[4]   On September 3, 1993, the State charged Streeter with child molesting, a Class

      C felony. On February 3, 1994, Streeter filed a motion to enter a guilty plea.

      On the same day, the trial court held a hearing and it accepted Streeter’s guilty

      plea. On May 5, 1994, the trial court sentenced Streeter to four years at the

      Department of Correction, all suspended to probation. Streeter did not file a

      direct appeal, but on September 30, 2013, he filed a pro se petition for post-

      conviction relief. On September 9, 2014, while represented by the State Public

      Defender, Streeter withdrew his petition for post-conviction relief, and on

      September 19, 2014, Streeter, again pro se, filed a petition for a belated notice of

      appeal. On February 9, 2015, the trial court held a hearing, during which

      Streeter was represented by counsel. On March 16, 2015, the trial court denied

      Streeter’s petition.


      Court of Appeals of Indiana | Memorandum Decision 44A03-1505-CR-449 | February 5, 2016   Page 2 of 7
[5]   Streeter now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

[6]   Streeter appeals the trial court’s order denying his petition to file a belated

      notice of appeal pursuant to Indiana Post-Conviction Rule 2.


[7]   At the outset, we note that Streeter is pursuing the wrong procedure to bring a

      belated direct appeal under P-C.R. 2. “A person who pleads guilty is not

      permitted to challenge the propriety of that conviction on direct appeal.” Collins

      v. State, 817 N.E.2d 230, 231 (Ind. 2004). The proper procedure for an

      individual who has pled guilty in an open plea to challenge the sentence

      imposed is to file a direct appeal, or, if the time for filing a direct appeal has

      run, to file an appeal under P-C.R. 2. Id. at 233; see also Walton v. State, 866

      N.E.2d 820, 821 (Ind. Ct. App. 2007). On the other hand, where a defendant

      wishes to challenge the conviction itself, where he contends that the plea should

      be set aside because it was not knowingly, intelligently or voluntarily entered,

      the remedy has long been exclusive through P-C.R. 1. Tumulty v. State, 666

      N.E.2d 394, 395 (Ind. 1996), Walton, 866 N.E.2d at 821.


[8]   Here, Streeter urges us to reconsider his plea because he claims there was no

      factual basis for it and he should have been given a competence hearing at the

      time of his guilty plea. (Appellant’s Br. p. 3).


[9]   Streeter’s desire to set aside his guilty plea in this case is similar to the

      defendant’s demand in Walton. In Walton, the defendant, after pleading guilty

      to a felony, asked this court to set the plea aside. Walton, 866 N.E.2d at 821.

      Court of Appeals of Indiana | Memorandum Decision 44A03-1505-CR-449 | February 5, 2016   Page 3 of 7
       The defendant argued that his plea was not voluntary because the state

       breached the plea agreement. Id. We disagreed because the defendant’s only

       challenge was that his plea was involuntary and he chose the wrong vehicle to

       challenge his guilty plea. Id. The defendant should have proceeded under P-

       C.R. 1. Similarly, since Streeter’s only challenge is that his guilty plea was not

       knowingly, intelligently or voluntarily entered into, it follows that no potential

       relief may be afforded by a direct appeal. See id. Streeter should have

       proceeded under P-C.R. 1. His appeal should therefore be dismissed.


[10]   However, even if we assume that he could proceed under P-C.R. 2, Streeter still

       fails to persuade us that the trial court abused its discretion in denying his

       petition.


[11]   Initially, we note that no effective relief could be granted to Streeter through

       direct appeal because his four-year suspended sentence was completed by May

       5, 1998. As we stated in Richardson v. State, 402 N.E.2d 1012, 1013 (Ind. Ct.

       App. 1980), the appellate court does not “engage in discussions of moot

       questions or render advisory opinions.” See also Irwin v. State, 744 N.E.2d 565,

       568 (Ind. Ct. App. 2001). The existence of an actual controversy is required.

       Richardson, 402 N.E.2d at 1013. Once the appellant’s “sentence has been

       served, the issue of the validity of the sentence is rendered moot.” Irwin, 744

       N.E.2d at 568. Accordingly, Streeter’s claim on this issue must fail.


[12]   Furthermore, it is well established that P-C.R. 2(1) provides a defendant an

       opportunity to petition the trial court for permission to file a belated notice of


       Court of Appeals of Indiana | Memorandum Decision 44A03-1505-CR-449 | February 5, 2016   Page 4 of 7
       appeal. Moshenek v. State, 868 N.E.2d 419, 422 (Ind. 2007). The decision

       whether to grant permission to file a belated notice of appeal or belated motion

       to correct error is within the sound discretion of the trial court. Id. The

       defendant bears the burden of proving by 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 of

       fault or diligence, and each case turns on its own facts. Id. at 423. Several

       factors are relevant to the defendant’s diligence and lack of fault in the delay of

       filing. Id. 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.


[13]   Here, Streeter argues that it was not his fault that he failed to pursue the belated

       appeal because he was potentially incompetent at the time of his plea and

       sentencing. However, Streeter provides no evidence to show that he was

       indeed declared incompetent or even that there were concerns about his

       competency. To the contrary, the record reveals that Streeter was “reality-

       oriented” and the only anxiety he displayed was appropriate under the

       circumstances. (Appellant’s App. p. 104). We fail to find any evidence in the

       record to show that Streeter could have been potentially incompetent to stand

       trial or plead guilty.


[14]   Further, Streeter does not demonstrate that he was diligent in seeking

       permission to file a belated notice of appeal. He waited for more than nineteen

       Court of Appeals of Indiana | Memorandum Decision 44A03-1505-CR-449 | February 5, 2016   Page 5 of 7
       years to raise the issues of potential errors in his plea or sentencing. Although

       the passage of time is only one of the factors relevant to establishing diligence,

       the fact that it stretches into decades makes a belated appeal particularly

       problematic because of the risk that significant problems will be encountered in

       any retrial due to unavailable evidence or witnesses or failing memories. See

       Moshenek, 868 N.E.2d at 424.


[15]   The only explanation that we receive from Streeter is offered at his petition

       hearing. Streeter explains that the reason for his belated direct appeal now is

       that he is currently serving a prison sentence on another conviction, and he

       wants to try “to launch a collateral attack” on that case, “which has an

       enhancement based on […] the [old child molesting] case [...]” (Transcript p. 6-

       7). This explains neither his lack of fault in the delay of filing nor his diligence

       in pursuing permission to file a belated appeal.


[16]   Finally, Streeter argues that the trial court did not issue findings of fact and

       conclusions of law regarding its denial of his petition, therefore, the trial court’s

       order should be struck. We disagree. We note that P-C.R. 2, unlike P-C.R. 1,

       places no requirement on the trial court to make specific findings of fact and

       conclusions of law. Compare P-C.R. 1(6) with P-C.R. 2. It is within the trial

       court’s discretion to grant or deny a request seeking permission to file a belated

       notice of appeal, and the trial court’s decision will be affirmed so long as there

       is sufficient evidence in the record supporting its decision. See Williams v. State,

       873 N.E.2d 144, 146 (Ind. Ct. App. 2007).



       Court of Appeals of Indiana | Memorandum Decision 44A03-1505-CR-449 | February 5, 2016   Page 6 of 7
[17]   As such, because Streeter failed to show that the delay of filing a belated appeal

       was not his fault and to explain why he waited for nearly two decades to raise

       the issues of potential errors in his guilty plea and sentencing, we conclude that

       the trial court did not abuse its discretion in denying his petition and the trial

       court’s decision was sufficiently supported by the record.


                                               CONCLUSION

[18]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion in denying Streeter’s petition to file a belated appeal.


[19]   Affirmed.


[20]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 44A03-1505-CR-449 | February 5, 2016   Page 7 of 7
