MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be                                          Jul 15 2019, 8:10 am

regarded as precedent or cited before any                                          CLERK
court except for the purpose of establishing                                   Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jon J. Olinger                                            Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Strowmatt,                                        July 15, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-519
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Jerome Frese,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          71D02-0404-FC-119



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-519 | July 15, 2019                           Page 1 of 4
[1]   Timothy Strowmatt appeals the trial court’s denial of his petition for permission

      to file a belated notice of appeal, arguing that the trial court erred by not

      following Indiana Post-Conviction Rule 2(1)(a). Finding no error, we affirm.


[2]   On December 13, 2004, the trial court found Strowmatt guilty of two counts of

      attempted criminal confinement and determined that he was an habitual

      offender. On January 5, 2005, the trial court sentenced Strowmatt to twenty-

      eight years in the Department of Correction. Thereafter, Strowmatt timely

      appealed his sentence, which we affirmed on September 9, 2005. See Strowmatt

      v. State, Cause No. 71A03-0501-CR-22 (Ind. Ct. App. Sept. 9, 2005). Our

      Supreme Court denied transfer.


[3]   Then, on February 8, 2006, Strowmatt filed a petition for post-conviction relief,

      arguing that he received the ineffective assistance of appellate counsel. The

      post-conviction court denied his petition on September 11, 2009. Strowmatt

      then appealed the post-conviction court’s ruling, which we likewise affirmed.

      See Strowmatt v. State, Cause No. 71A05-0910-PC-587 (Ind. Ct. App. June 18,

      2010). Once again, our Supreme Court denied transfer.


[4]   Next, Strowmatt filed a federal petition for writ of habeas corpus, which the

      district court denied. See Strowmatt v. Superintendent, Cause No. 3:11-cv-003

      (N.D. Ind. Sept. 26, 2011). On February 7, 2012, Strowmatt filed a petition for

      writ of habeas corpus in the Henry Circuit Court, which was ultimately

      transferred to the St. Joseph Superior Court. The trial court there denied his

      petition, ruling that it was simply an additional petition for post-conviction


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-519 | July 15, 2019   Page 2 of 4
      relief. This Court affirmed that decision. See Strowmatt v. State, Cause No.

      71A03-1402-PC-70 (Ind. Ct. App. July 21, 2014). Thereafter, Strowmatt filed

      numerous other motions to correct error and to reconsider sentencing along

      with petitions for transfer and removal, all of which were denied.


[5]   Finally, on February 5, 2018, Strowmatt filed a verified petition for permission

      to file a belated notice of appeal to challenge his original sentence. In that

      petition, Strowmatt admitted that he had filed a timely notice of appeal after his

      January 5, 2005, sentencing hearing, but argued that his appellate counsel had

      failed to raise sentencing errors during his direct appeal. The trial court denied

      his petition, and Strowmatt now appeals.


[6]   “[T]he decision of whether to grant or deny a petition for permission to file a

      belated notice of appeal is a matter within the discretion of the trial court.”

      George v. State, 862 N.E.2d 260, 264 (Ind. Ct. App. 2006). However, where the

      trial did not conduct a hearing on the motion and where the allegations

      contained in the motion itself provide the only basis in support of a motion, we

      review the decision de novo. Id.


[7]   Indiana Post-Conviction Rule 2(1)(a) states, in pertinent part, the following:


              (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;



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-519 | July 15, 2019   Page 3 of 4
                       (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.


      (Emphasis added).


[8]   Thus, in order to receive permission to file a belated notice of appeal, the

      defendant must show, at a minimum, that he failed to file a timely notice of

      appeal. In his verified petition, Strowmatt admitted that he had filed a timely

      notice of appeal after his January 5, 2005, sentencing hearing. Indeed, this

      Court considered and ruled on Strowmatt’s appeal on the merits. Therefore,

      Strowmatt has not met the threshold showing to prove that he was entitled to

      file a belated notice of appeal. And, given the long procedural history of

      Strowmatt’s case, this petition seems to be nothing more than an attempt by

      Strowmatt to have another bite at the litigation apple. In sum, the trial court did

      not err.


[9]   The judgment of the trial court is affirmed.


      Najam, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-519 | July 15, 2019   Page 4 of 4
