MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                          Jul 23 2018, 8:43 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Lionel Gibson                                             Curtis T. Hill, Jr.
Bunker Hill, Indiana                                      Attorney General of Indiana

                                                          Justin F. Roebel
                                                          Supervising Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lionel Gibson,                                           July 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-59
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Diane Ross
Appellee-Plaintiff.                                      Boswell, Judge
                                                         The Honorable Kathleen A.
                                                         Sullivan, Magistrate
                                                         Trial Court Cause No.
                                                         45G03-9703-CF-43



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-59 | July 23, 2018                       Page 1 of 8
[1]   Lionel Gibson appeals the denial of his motion for relief under Trial Rule 72.

      We affirm.


                                          Facts and Procedural History

[2]   In November 1998, a jury found Gibson guilty of murder, murder in

      preparation of robbery, and attempted murder. In January 1999, the court

      entered judgment on the murder and attempted murder counts and sentenced

      Gibson to fifty years for his murder conviction and forty years for his attempted

      murder conviction to be served consecutively. In February 2000, this court

      affirmed his convictions.


[3]   Gibson initially filed a petition for post-conviction relief in 2001 and, after

      withdrawing the petition in 2002, re-filed it in April 2006. On April 10, 2007,

      the court held a post-conviction hearing, on August 6, 2008, it denied Gibson’s

      petition for post-conviction relief.1 On September 17, 2008, Gibson filed a

      notice of appeal which was denied as untimely. 2


[4]   On December 10, 2015, Gibson filed a motion to correct erroneous sentence

      and memorandum in support of the motion. On December 14, 2015, the court

      entered an order which denied the motion and stated: “The motion is denied as

      res judicata. The sentencing issues were addressed in the defendant’s petition




      1
          The appellant’s appendix does not contain a copy of this order.
      2
        Gibson states that he placed the notice of appeal in the prison mailbox system on September 12, 2008. In
      his December 15, 2017 memorandum in support of his motion for relief pursuant to Trial Rule 72(E), he
      stated that he received notice that his petition for post-conviction relief was denied on August 19, 2008.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-59 | July 23, 2018                      Page 2 of 8
      for post-conviction relief. The defendant failed to timely appeal the Court’s

      ruling. The defendant cannot circumvent his failure to timely appeal by filing

      this pleading.” Appellant’s Appendix Volume 2 at 42. On January 7, 2016, the

      court entered an order stating that Gibson had offered a notice of appeal on

      January 4, 2016, which was “refused for filing for the reason that is not the

      proper forum.” Id. at 43. On January 20, 2016, the court entered an order

      stating that Gibson offered a notice of appeal on January 15, 2016, which was

      refused for filing and noted that a notice of appeal must be filed with the Clerk

      of the Indiana Supreme Court, Court of Appeals and Tax Court (“Appellate

      Clerk”). On February 2, 2016, Gibson filed a notice of appeal with the

      Appellate Clerk under cause number 45A03-1602-CR-232 (“Cause No. 232”)

      stating that he wished to appeal the trial court’s December 14, 2015 order. On

      May 26, 2016, this Court entered an order dismissing the appeal with prejudice.

      This Court denied rehearing, and the Indiana Supreme Court denied transfer.


[5]   On December 15, 2017, Gibson filed a Motion for Relief Pursuant to Indiana

      Trial Rule 72(E) and a memorandum in support of the motion. He argued that

      the court denied his petition for post-conviction relief on August 6, 2008,

      without addressing the issues of his illegal sentence. He stated that notice of the

      August 6, 2008 order was sent to the Wabash Valley Correctional Facility and

      that he was housed at the Indiana State Prison and was stabbed there on

      October 1, 2008. He also argued that, when he filed his appeal from the court’s

      December 14, 2015 denial of his motion to correct erroneous sentence, he filed

      it with the trial court and that the prison where he was housed provided only



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-59 | July 23, 2018   Page 3 of 8
      the 2005 version of the Indiana Rules.3 He stated that he “became frustrated

      and conceded to the denial of his right to appeal.” Appellant’s Appendix

      Volume 2 at 19. He also argued that he was attacked by two offenders on

      January 11, 2016, and was held in segregation from January 12 to January 28,

      2016.


[6]   On December 19, 2017, the court entered an order denying Gibson’s Motion

      for Relief Pursuant to Indiana Trial Rule 72(E). The order stated the court

      “cannot accept belated appeals, other than belated direct appeals pursuant to

      Indiana Rule PC2, regardless of the reasons for delay.” Id. at 15. Gibson

      appeals the trial court’s December 19, 2017 order.


                                                       Discussion

[7]   Gibson claims the trial court erred in entering its December 19, 2017 order

      denying his Motion for Relief Pursuant to Indiana Trial Rule 72(E). He argues

      he has been deprived of the right to appeal the August 6, 2008 denial of his

      petition for post-conviction relief and the December 14, 2015 denial of his

      motion to correct erroneous sentence and, in support of his argument, cites

      Taylor v. State, 939 N.E.2d 1132 (Ind. Ct. App. 2011). Gibson states that he was

      transferred to the Indiana State Prison between May 16 and August 6, 2008.




      3
       The Indiana Supreme Court entered an order on September 20, 2011 amending the Indiana Rules of
      Appellate Procedure, effective January 1, 2012, to provide that a party initiates an appeal by filing a notice of
      appeal with the Appellate Clerk. See Order Amending Indiana Rules of Appellate Procedure, 94S00-1101-
      MS-17 (Sep. 20, 2011). Prior to the order a party initiated an appeal by filing a notice of appeal with the trial
      court clerk. See id.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-59 | July 23, 2018                           Page 4 of 8
      He states he was stabbed in an altercation in prison on October 1, 2008, and

      was assaulted by offenders on January 11, 2016 and held in segregation until

      January 28, 2016. He argues that the prison provided only outdated rules and

      thus he filed his notice of appeal from the court’s December 14, 2015 order with

      the trial court.


[8]   The State asserts the December 19, 2017 order denying Gibson’s motion under

      Trial Rule 72 is not a final judgment, the appeal was permitted in Taylor

      pursuant to the court’s inherent power to grant equitable relief and not as a

      right, and this case should be dismissed. The State further argues that Taylor

      may not be applicable in this case as trial court clerks no longer have the

      authority to accept notices of appeal and notices of appeal are now filed with

      the Appellate Clerk. It argues that, even if Taylor is applicable, the record

      shows that, unlike the defendant in Taylor, Gibson was served with the 2008

      and 2015 orders which he now wishes to belatedly challenge; that Gibson

      acknowledges that he received the 2008 order before the expiration of the

      deadline for filing an appeal; that, while Gibson alleges he was stabbed in 2008,

      the stabbing occurred after the deadline for filing an appeal of the 2008 order;

      and that, with respect to the 2015 order, ignorance of the law is not a defense.

      It also argues that, moreover, there is no merit to Gibson’s underlying claim as

      there were two victims of Gibson’s crimes which support consecutive

      sentencing.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-59 | July 23, 2018   Page 5 of 8
[9]    Even assuming Gibson may appeal the court’s order denying his motion under

       Trial Rule 72(E), we conclude that reversal is not warranted. Trial Rule 72(E)

       provides:


               Effect of Lack of Notice. Lack of notice, or the lack of the actual
               receipt of a copy of the entry from the Clerk shall not affect the
               time within which to contest the ruling, order or judgment, or
               authorize the Court to relieve a party of the failure to initiate
               proceedings to contest such ruling, order or judgment, except as
               provided in this section. When the service of a copy of the entry
               by the Clerk is not evidenced by a note made by the Clerk upon
               the Chronological Case Summary, the Court, upon application
               for good cause shown, may grant an extension of any time
               limitation within which to contest such ruling, order or judgment
               to any party who was without actual knowledge, or who relied
               upon incorrect representations by Court personnel. Such
               extension shall commence when the party first obtained actual
               knowledge and not exceed the original time limitation.


[10]   In Taylor, the Court found that Rule 72(E) was applicable “where the CCS does

       not contain evidence that a copy of the court’s order was sent to each party.”

       939 N.E.2d at 1136. We observed that Taylor had alleged he notified the post-

       conviction court of his new address prior to the mailing of the order denying his

       petition for post-conviction relief and, although the CCS did not affirmatively

       show that a notice of change of address was received by the court, it did reflect

       that correspondence was received by the court on or about the date Taylor

       alleged. Id. We further observed that, although the CCS reflected that notice of

       the order denying the petition for post-conviction relief was mailed to Taylor, it

       did not reflect at which address notice was made and that the CCS further



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-59 | July 23, 2018   Page 6 of 8
       reflected that, after the post-conviction court undeniably had notice of Taylor’s

       new address, it still mailed an order to him at his previous address. Id. We

       held that, given the record, the trial court abused its discretion in denying

       Taylor relief under Trial Rule 72(E). Id. at 1136-1137.


[11]   In this case, unlike in Taylor, the CCS shows that copies of the August 6, 2008

       and December 14, 2015 orders were sent to Gibson. With respect to the August

       6, 2008 order denying Gibson’s petition for post-conviction relief, the CCS

       indicates that the order was “forwarded to [Gibson] @ Wabash Valley

       Correctional.” Appellant’s Appendix Volume 2 at 5. While he states he had

       been transferred to the Indiana State Prison, we observe that Gibson stated in

       his December 15, 2017 memorandum in support of his motion for relief

       pursuant to Trial Rule 72 that “[o]n August 19, 2008 [he] received notice” of

       the denial of his petition for post-conviction relief, id. at 25, and states in his

       appellant’s brief that “the order was re-routed from Wabash Valley to [him] at

       the Indiana State Prison . . . and received by [him] 13 days after the order was

       made,”4 Appellant’s Brief at 11, indicating that Gibson received the court’s

       order well before the expiration of the time period in which to file an appeal.

       Further, Gibson states that he was stabbed on October 1, 2008, which was after

       the expiration of the deadline to appeal the August 6, 2008 order.




       4
         The appellant’s appendix contains an “Acknowledgment of Legal Mail Receipt” dated August 19, 2008,
       indicating that Gibson received mail at the Indiana State Prison from the clerk of the Lake Superior Court.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-59 | July 23, 2018                       Page 7 of 8
[12]   As for the December 14, 2015 order denying his motion to correct erroneous

       sentence, the CCS shows that a copy of the order was sent to Gibson at New

       Castle Correctional Facility. The record reflects that the court entered an order

       dated January 7, 2016, refusing Gibson’s notice of appeal for filing in the

       improper forum and that the order was forwarded to Gibson. He did not timely

       file a notice of appeal with the Appellate Clerk, and this Court dismissed the

       appeal initiated under Cause No. 232. See Gibson v. State, No. 45A03-1602-CR-

       232 (Ind. Ct. App. June 26, 2016), reh’g denied, trans. denied. The trial court did

       not err or abuse its discretion in denying Gibson’s motion under Trial Rule

       72(E).


[13]   We further note that, to the extent Gibson challenges the imposition of

       consecutive sentences and his crimes related to two victims, the Indiana

       Supreme Court has held that “[c]onsecutive sentences reflect the significance of

       multiple victims.” Pittman v. State, 885 N.E.2d 1246, 1259 (Ind. 2008) (citing

       McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001)).


                                                    Conclusion

[14]   For the foregoing reasons, we affirm the trial court’s ruling.


[15]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-59 | July 23, 2018   Page 8 of 8
