 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be                      Nov 18 2014, 10:29 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:

KENNETH GIBBS                                      GREGORY F. ZOELLER
Michigan City, Indiana                             Attorney General of Indiana

                                                   MICHAEL GENE WORDEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

KENNETH W. GIBBS,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 22A04-1407-CR-331
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE FLOYD SUPERIOR COURT 1
                         The Honorable Frank Newkirk, JR., Judge
                              Cause No. 22D01-8306-CF-77


                                       November 18, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Gibbs appeals from the denial of his petition for permission to file a belated notice

of appeal of the denial of his motion to correct erroneous sentence. On appeal, Gibbs

argues that the trial court erred in denying his petition.

       We affirm.

       Gibbs was convicted of attempted murder in 1984, and his conviction was

affirmed on direct appeal. Gibbs v. State, 483 N.E.2d 1365 (Ind. 1985). In 1994, Gibbs’s

petition for post-conviction relief was denied, and this court affirmed. Thereafter, Gibbs

has continued to file numerous motions and petitions. At issue in this case is a motion to

correct erroneous sentence Gibbs filed on November 20, 2013. The trial court denied the

motion on March 20, 2014. On May 23, 2014, Gibbs filed a petition for permission to

file a belated notice of appeal from the trial court’s denial of his motion to correct

erroneous sentence. The trial court denied the petition on June 25, 2013, and Gibbs now

appeals.

       Gibbs sought permission to file a belated notice of appeal pursuant to Ind. Post-

Conviction Rule 2(1). P-C.R. 2(1) provides as follows:

       (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.

In Davis v. State, 771 N.E.2d 647, 649 (Ind. 2002), abrogated in part by In re Adoption

of O.R., 16 N.E.3d 965 (Ind. 2014), our Supreme Court noted that P-C.R. 2(1) “provides


                                               2
petitioners with a method to seek permission for belated consideration of appeals

addressing conviction, but does not permit belated consideration of appeals of other post-

judgment petitions.”1 Specifically, the court explained that P-C.R. 2(1) does not permit a

belated appeal from the denial of a motion to correct erroneous sentence. Accordingly,

the trial court in this case did not err when it denied Gibbs’s petition for permission to file

a belated notice of appeal from the denial of his motion to correct erroneous sentence.

        Judgment affirmed.

VAIDIK, C. J., and MAY, J., concur.




        1
           In Davis v. State, 771 N.E.2d at 649, our Supreme Court went on to explain that “the Court of
Appeals lacks subject matter jurisdiction over appeals other than direct appeals, unless such appeals or
petitions are timely brought.” Recently, in In re Adoption of O.R., 16 N.E.3d at 971, our Supreme Court
held that “although a party forfeits its right to appeal based on an untimely filing of the Notice of Appeal,
this untimely filing is not a jurisdictional defect depriving the appellate courts of authority to entertain the
appeal.” In a footnote, the court explained that “our language in Davis regarding the Court of Appeals’
‘jurisdiction’ and ‘authority’ over Davis’ appeal is problematic.” Id. at 970 n.2. The court held, however,
that its ultimate conclusion in Davis that P-C.R. 2 applies only to direct appeals of criminal convictions,
and not to motions to correct erroneous sentence, was correct. In re Adoption of O.R., 16 N.E.3d 965.


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