                                                                                  Jan 29 2016, 7:45 am




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                           Gregory F. Zoeller
      Public Defender of Indiana                                 Attorney General of Indiana
      James T. Acklin                                            Angela N. Sanchez
      Chief Deputy Public Defender                               Deputy Attorney General
      Indianapolis, Indiana                                      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Ronald L. Sanford, Jr.,                                    January 29, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A05-1506-PC-485
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Lisa F. Borges,
      Appellee-Plaintiff                                         Judge
                                                                 The Honorable Anne Flannelly,
                                                                 Magistrate
                                                                 Trial Court Cause No.
                                                                 49G04-8804-PC-40167



      Crone, Judge.


                                              Case Summary
[1]   Ronald L. Sanford, Jr., appeals the denial of his petition for permission to file a

      belated notice of appeal of his sentence filed pursuant to Indiana Post-

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      Conviction Rule 2. He argues that the trial court abused its discretion in

      finding that he had failed to carry his burden to prove that he was diligent in

      requesting permission to file a belated notice of appeal. He also argues that

      pursuant to In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), his right to appeal

      should be restored due to extraordinarily compelling reasons.


[2]   We conclude that the trial court did not abuse its discretion in denying

      Sanford’s petition for permission to file a belated notice of appeal. We also

      conclude that O.R. need not be extended to criminal defendants who already

      have a remedy for reinstating an untimely appeal through Post-Conviction Rule

      2. Therefore, we affirm.


                                  Facts and Procedural History
[3]   In August 1987, thirteen-year-old Sanford and a friend forced their way into

      Sanford’s elderly neighbors’ home. Sanford demanded money from eighty-

      seven-year-old Julia Belmar and eighty-three-year-old Anna Harris. Sanford

      stabbed both women multiple times, killing them.


[4]   In March 1988, the State charged Sanford as a juvenile for his role in the

      stabbing deaths of Belmar and Harris. In April 1988, the juvenile court waived

      Sanford to adult court, where he was charged with two counts of murder, two

      counts of class A felony robbery, two counts of class B felony criminal

      confinement, one count of class A felony burglary, and two counts of felony

      murder. Sanford was represented by a public defender. In March 1989, fifteen-

      year-old Sanford pled guilty pursuant to a plea agreement to two counts of

      Court of Appeals of Indiana | Opinion 49A05-1506-PC-485| January 29, 2016   Page 2 of 11
      murder, one count of class A felony robbery, and one count of class B felony

      burglary. The plea agreement left sentencing open. The State dismissed the

      remaining charges. At Sanford’s guilty plea hearing, the trial court informed

      him that he was waiving his right to appeal his convictions but not his right to

      postconviction relief pursuant to Indiana Post-Conviction Rule 1 (“PCR”). The

      trial court did not advise Sanford that he had a right to appeal his sentence.


[5]   In April 1989, the trial court sentenced Sanford to fifty years for each count of

      murder, fifty years for robbery, and twenty years for burglary, all to be served

      consecutively, for an aggregate sentence of 170 years. The trial court did not

      advise Sanford that he had a right to appeal his sentence.


[6]   Between February 1991 and November 1995, Sanford filed four requests with

      the trial court for transcripts so that he could prepare a PCR petition. All his

      requests were denied without explanation. During this time, he also filed two

      requests with the juvenile court for transcripts, which were also denied.

      Sanford did not know what else to do and stopped filing motions.


[7]   In February 2004, Sanford wrote a letter to the State Public Defender’s Office

      seeking advice on how to obtain his transcripts. That same month, a deputy

      public defender responded to Sanford with a letter, which read,


              Most courts will not give you a copy of your transcripts unless
              there is a Petition for Post-Conviction Relief pending. …. The
              only thing you can do is to file a Petition for Post-Conviction
              Relief and try to put down things that you remember from your
              guilty plea. The good thing is that you will be able to amend
              your petition once it is filed and you are able to obtain your

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               transcripts from the court. Once you have read the transcripts,
               you will be able to add any issues you find. (If you ask for our
               representation, our office will request your transcripts and amend
               your petition if necessary.)


       Petitioner’s Ex. G.


[8]    In March 2005, Sanford filed a motion to request transcripts, which the trial

       court denied on March 31, 2005. The trial court indicated that it was denying

       the motion because “[n]othing is pending.” Appellant’s App. at 7.


[9]    In January 2006, Sanford sent a public record request to the Marion County

       Clerk’s Office seeking copies of all the filings in his case. The clerk’s office

       informed Sanford that both the paper and the microfilm versions of the original

       case file were missing, but a new file had been opened the prior year to

       accommodate new filings. The clerk provided Sanford with copies of the new

       filings.


[10]   In July 2006, Sanford filed a pro se PCR petition and request for transcripts.

       He declined representation from the State Public Defender. In September 2006,

       the trial court granted Sanford’s motion for transcripts and scheduled a hearing.

       In January 2007, Sanford moved to reschedule the hearing because he had not

       received the transcripts, and the trial court granted the motion. In June 2007,

       Sanford wrote the trial court that he had received the transcript of the

       sentencing hearing but not the guilty plea hearing. The trial court ordered that

       the guilty plea transcript be provided to Sanford. In August 2007, Sanford

       wrote the trial court that he had not received the transcript of the guilty plea

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       hearing, and the trial court again ordered that the transcript be provided to

       Sanford. In October 2007, Sanford again moved for a continuance because he

       had not received the transcript, which the trial court granted.


[11]   In April 2008, Sanford had still not received the transcript of the guilty plea

       hearing, and he moved to withdraw his PCR petition without prejudice, which

       the trial court granted. In January 2010, Sanford filed a motion requesting that

       the court compel compliance with its order granting Sanford’s motion for the

       transcript of the guilty plea hearing. The trial court denied the motion because

       nothing was pending. Id. at 52.


[12]   In June 2011, Sanford filing another pro se PCR petition. The trial court

       appointed the State Public Defender to represent Sanford. Sanford, by counsel,

       requested three continuances of the PCR evidentiary hearing.


[13]   In February 2015, Sanford, by counsel, filed a petition for permission to file a

       belated appeal of his sentence pursuant to Post-Conviction Rule 2 and

       requested that his PCR petition be held in abeyance. The trial court granted

       Sanford’s request that his PCR petition be held in abeyance. In April 2015, the

       trial court held a hearing on Sanford’s petition for permission to file a belated

       appeal. Sanford submitted a posthearing memorandum in support of his

       petition, which the trial court accepted and considered before making its ruling.


[14]   In May 2015, the trial court issued a written order with factual findings denying

       Sanford’s petition for permission to file a belated appeal. The trial court found

       that Sanford was not at fault for not filing a timely notice of appeal but also

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       found that he had not shown that he had been diligent in seeking an appeal

       because (1) he made no attempts to either obtain transcripts or make any other

       filings for almost nine and a half years between 1995 and 2005, and (2) he

       delayed filing his PCR petition until July 2006 even though he learned in

       February 2005 from the public defender that once he filed his PCR petition he

       would be able to obtain his transcripts and could amend his PCR petition. This

       appeal ensued.


                                       Discussion and Decision

            Section 1 – The trial court did not abuse its discretion by
            denying Sanford’s petition for permission to file belated
                                     appeal.
[15]   We review the trial court’s decision whether to grant permission to file a belated

       notice of appeal for an abuse of discretion. Moshenek v. State, 868 N.E.2d 419,

       422 (Ind. 2007). We will affirm the trial court’s ruling unless it was based on an

       error of law or a clearly erroneous factual determination. Id. at 423-24.


[16]   To successfully obtain permission to file a belated notice of appeal, the

       defendant must show, by a preponderance of the evidence, that “the failure to

       file a timely notice of appeal was not due to the fault of the defendant” and “the

       defendant has been diligent in requesting permission to file a belated notice of

       appeal.” Ind. Post-Conviction Rule 2(1)(a); Moshenek, 868 N.E.2d at 422-23.

       “There are no set standards of fault or diligence, and each case turns on its own

       facts.” Moshenek, 868 N.E.2d at 423. “Because diligence and relative fault are

       fact sensitive, we give substantial deference to the trial court’s ruling.” Id. “The
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       trial court is in a better position to weigh evidence, assess the credibility of

       witnesses, and draw inferences.” Id. at 424.


[17]   Sanford challenges the trial court’s finding that he did not carry his burden to

       establish that he was diligent in seeking an appeal. Several factors are relevant

       in determining whether a defendant was diligent. “Among them are the overall

       passage of time; the extent to which the defendant was aware of relevant facts;

       and the degree to which delays are attributable to other parties.” Id.; see also

       Cole v. State, 989 N.E.2d 828, 831 (Ind. Ct. App. 2013), trans. denied; Russell v.

       State, 970 N.E.2d 156, 160 (Ind. Ct. App. 2012), trans. denied; Bosley v. State, 871

       N.E.2d 999, 1002 (Ind. Ct. App. 2007). 1 “When the overall time stretches into

       decades, a belated appeal becomes particularly problematic because of the risk

       that significant problems will be encountered in any retrial due to unavailable

       evidence or witnesses or failing memories.” Moshenek, 868 N.E.2d at 424.


[18]   Here, the trial court found that Sanford had failed to show that he was diligent

       because he made no attempt to either obtain transcripts or make any other

       filings for almost nine and a half years between November 1995, when he filed

       a motion for transcripts, and March 2005, when he filed another motion for

       transcripts. Sanford asserts that the trial court’s finding that he was not diligent

       is erroneous as a matter of law because he cannot be faulted for failing to

       pursue a challenge to his sentence when he did not have the transcripts.



       1
         The parties refer to other factors, but those factors relate to the determination of fault, which is not in issue
       here.

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       Although we understand Sanford’s frustration with the repeated denials of his

       requests for transcripts between February 1991 and November 1995, the lack of

       progress during that time does not explain the following nine years of inaction

       that passed before he contacted the public defender for advice in 2004. 2


[19]   The trial court also found that Sanford delayed filing his PCR petition until July

       2006 even though he learned in February 2004 from the public defender that

       once he filed his PCR petition he would be able to obtain his transcripts and

       could amend his PCR petition. Sanford argues that he reasonably did not

       follow the public defender’s guidance because he “wasn’t ready to proceed” and

       “did [not] want to put something into court that was going to [get him]

       procedurally rejected out because it was factually untrue or incorrect.” Tr. at

       27. Sanford’s argument is unavailing on appeal because the trial court, not this

       Court, was in the best position to assess the credibility of Sanford’s testimony,

       and its ruling is entitled to substantial deference. See Moshenek, 868 N.E.2d at




       2
         Sanford also argues that prior to our supreme court’s ruling in Collins v. State, 817 N.E.2d 230 (Ind. 2004),
       Indiana law permitted a defendant to challenge a sentence without a showing of diligence via a PCR petition,
       and therefore, as a matter of law, he was diligent prior to Collins for purposes of obtaining permission to file a
       belated notice of appeal. In Collins, our supreme court resolved a split in the Court of Appeals as to whether
       a challenge to a sentence imposed following an open plea must be brought as a direct appeal or by a PCR
       petition and held that the proper procedure for challenging an open sentence was by direct appeal. Id. at 233.
       With regard to whether pre-Collins diligence is required for a post-Collins petition for permission to file a
       belated appeal, we observe that our supreme court has held that defendants who had not sought to challenge
       their sentences through a PCR petition before Collins had not been diligent and their post-Collins petitions for
       permission to file belated appeal were denied. See Witt v. State, 867 N.E.2d 1279, 1282 (Ind. 2007)
       (defendant who had not filed PCR petition before Collins and did not seek permission to file belated notice of
       appeal until nineteen months after Collins was not diligent); Moshenek, 868 N.E.2d at 424 (defendant who had
       not challenged his sentence in pre-Collins PCR petition was not diligent). And in Johnson v. State, 898 N.E.2d
       290 (Ind. 2008), our supreme court found that Johnson acted with diligence where his PCR petition explicitly
       challenging his sentence was filed “within a reasonable period of time under pre-Collins practice.” Id. at 292.
       Accordingly, we reject Sanford’s notion that prior to Collins he was diligent as a matter of law.

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       424. Therefore, we conclude that the trial court did not abuse its discretion in

       finding that Sanford failed to prove that he was diligent in seeking an appeal.


            Section 2 – Sanford is not entitled to directly appeal his
           sentence due to extraordinarily compelling circumstances.
[20]   Sanford next contends that pursuant to O.R., 16 N.E.3d 965, his right to appeal

       may be restored. In O.R., our supreme court addressed whether a father’s

       failure to timely file an appeal of an order granting an adoption petition in favor

       of the foster parents deprived the appellate courts of jurisdiction over the

       appeal. The O.R. court began with an examination of Indiana Appellate Rule

       9(A) which reads,


               A party initiates an appeal by filing a Notice of Appeal with the
               Clerk ... within thirty (30) days after the entry of a Final
               Judgment is noted in the Chronological Case Summary. * * *
               Unless the Notice of Appeal is timely filed, the right to appeal
               shall be forfeited except as provided by P.C.R. 2.


       (Emphasis added.) The O.R. court explained that a party’s forfeiture of the

       right to appeal does not mean that the appellate courts lose their authority to

       hear the appeal. 16 N.E.3d at 971. Rather, the question becomes whether there

       are “extraordinarily compelling reasons” why this forfeited right should be




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       restored. 3 Id. Sanford asserts that such reasons exist in this case, and therefore

       his forfeited right to appeal his sentence should be restored.


[21]   The State asserts that “[n]othing in the Supreme Court’s decision suggests that

       it was meant to apply where a specific rule establishing the requirements for

       pursuing a belated appeal already exists.” Appellee’s Br. at 18. We agree.

       Appellate Rule 9 provides that the right to appeal shall be forfeited except as

       provided by Post-Conviction Rule 2. Thus, criminal defendants already have a

       means whereby an untimely appeal may be restored and that is by filing a

       petition for permission to file a belated notice of appeal pursuant to Post-

       Conviction Rule 2. Parties in a civil action do not have such a built-in safety

       valve. O.R. provides civil litigants a means by which the right to appeal may be

       restored that is otherwise unavailable in the Indiana Rules of Court. In fact, the

       showing required for criminal defendants under Post-Conviction Rule 2–lack of

       fault and diligence–is easier to satisfy than that required for civil litigants under

       O.R. Accordingly, we decline to extend O.R. to criminal defendants who are

       eligible to avail themselves of Post-Conviction Rule 2.




       3
         The O.R. court concluded that such extraordinarily compelling reasons existed in that case. First, before
       the deadline for filing his notice of appeal, father asked the trial court to appoint counsel to perfect an appeal,
       but the trial court did not do so until after the deadline had passed. Second, the parent-child relationship is
       one of the oldest of the fundamental liberty interests protected by the Fourteenth Amendment and also one of
       the most valued relationships in our culture. 16 N.E.3d at 972. Therefore the O.R. court concluded that
       father’s “otherwise forfeited appeal deserve[d] a determination on the merits.” Id.

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[22]   Based on the foregoing, we affirm the trial court’s denial of Sanford’s petition

       for permission to file a belated notice of appeal.


[23]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




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