                                                                                  FILED
                                                                             Nov 21 2019, 10:39 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Randall J. Hammond                                        Curtis T. Hill, Jr.
      Deputy Public Defender                                    Attorney General of Indiana
      Leonard, Hammond, Thoma, & Terrill                        Tyler G. Banks
      Fort Wayne, Indiana                                       Supervising Deputy Attorney
                                                                General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      James D. Cummings,                                        November 21, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-833
              v.                                                Appeal from the Allen Superior
                                                                Court
      State of Indiana,                                         The Honorable David M. Zent,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause Nos.
                                                                02D04-1708-F6-987
                                                                02D04-1709-F6-1041
                                                                02D04-1802-F6-152



      Pyle, Judge.


                                        Statement of the Case
[1]   James Cummings (“Cummings’) attempts to belatedly appeal the revocation of

      his probation. Because the Indiana Supreme Court has held that Post-

      Court of Appeals of Indiana | Opinion 19A-CR-833 | November 21, 2019                            Page 1 of 6
      Conviction Rule 2 does not permit belated consideration of an appeal of a

      probation revocation, we dismiss the appeal.


[2]   We dismiss.


                                                         Issue
               Whether this appeal should be dismissed because Cummings
               failed to file a timely notice of appeal.1


                                                        Facts
[3]   In November 2017, Cummings pled guilty to Level 6 felony resisting law

      enforcement and Level 6 felony theft in two separate causes. The trial court

      sentenced him to 548 days for each conviction, ordered the two sentences to run

      consecutively to each other, and suspended them both to probation. In January

      2018, Cummings failed to submit to two drug screens and missed an

      appointment with his probation officer. The State filed a petition to revoke his

      probation in January 2018.


[4]   Before the hearing on the revocation petition, Cummings was charged with

      another count of Level 6 felony resisting law enforcement. As a result of this

      charge, the State amended the petition to revoke Cummings’ probation. In




      1
        Cummings also argues that the trial court abused its discretion in revoking his probation in light of the
      following mitigating factors: (1) his prolonged history of substance abuse and mental illness; (2) his “drug
      infested family;” (3) his guilty plea to the underlying convictions; (4) his declaration of shame; and (5) his
      plan to no longer engage in criminal activity. Because we dismiss the appeal, we need not address this issue.
      We do, however, note that the trial court is not required to consider aggravating and mitigating factors when
      deciding to revoke probation. Porter v. State, 117 N.E.3d 673, 675 (Ind. Ct. App. 2018).

      Court of Appeals of Indiana | Opinion 19A-CR-833 | November 21, 2019                               Page 2 of 6
      March 2018, Cummings pled guilty to the Level 6 felony resisting law

      enforcement charge. The trial court sentenced him to 913 days to run

      consecutively to the November 2017 sentences and again suspended the

      sentence to probation.


[5]   One of the probation conditions was that Cummings successfully complete a

      residential drug treatment program. Cummings entered such a program in mid-

      March 2018. However, Cummings did not complete the program because he

      left the treatment program a week later. The State filed another petition to

      revoke Cummings’ probation in all three cases based on his failure to complete

      the treatment program. Thereafter, the trial court ordered Cummings to be

      evaluated by a community corrections program for potential placement on

      home detention. Cummings, however, refused to participate in the evaluation.

      He told the trial court that he “no longer need[ed] the court to help [him] with

      [his] rehabilitation.” (App. Vol. 2 at 87). Cummings admitted the violations in

      the revocation petition and was returned to probation in May 2018.


[6]   The day after he admitted the allegations, Cummings entered another

      residential treatment program. Two days later, he left the the program without

      successfully completing it, and the State filed another motion to revoke his

      probation. On November 5, 2018, following an evidentiary hearing, the trial

      court revoked Cummings’ probation and ordered him to serve the suspended

      sentences in the three cases in the Department of Correction.




      Court of Appeals of Indiana | Opinion 19A-CR-833 | November 21, 2019     Page 3 of 6
[7]    Four months later, on March 20, 2019, Cummings filed with the trial court a

       petition for permission to file a belated appeal pursuant to Post-Conviction Rule

       2. The State responded that pursuant to Dawson v. State, 943 N.E.2d 1281,

       1281-82 (Ind. 2011), a belated appeal could not be taken from an order revoking

       probation. The trial court nevertheless granted Cummings’ motion “pursuant

       to Rule PC2 of the Indiana Rules of Procedure for Post-Conviction Remedies.”

       (App. Vol. 2 at 134).


[8]    Cummings filed his notice of appeal in April 2019. During the pendency of the

       appeal, the State filed a motion to dismiss. In support of its motion, the State

       cited Dawson. This Court’s motions panel denied the motion,2 and both parties

       filed appellate briefs. We now turn to the issues in this appeal.


                                                      Decision
[9]    Cummings argues that the trial court abused its discretion in revoking his

       probation. The State cross-appeals, arguing that belated appeals from orders

       revoking probation are not available pursuant to Post-Conviction Rule 2.

       Cummings does not respond to the State’s cross-appeal.


[10]   Post-Conviction Rule 2 provides:


               Eligible defendant defined. An “eligible defendant” for purposes of
               this Rule is a defendant who, but for the defendant’s failure to do



       2
        Although this Court’s motions panel denied the State’s motion to dismiss the appeal, “[i]t is well-
       established that we may reconsider a ruling by the motions panel.” Core v. State, 122 N.E.3d 974, 976 (Ind.
       Ct. App. 2019).

       Court of Appeals of Indiana | Opinion 19A-CR-833 | November 21, 2019                              Page 4 of 6
                so timely, would have the right to challenge on direct appeal a
                conviction or sentence after a trial or plea of guilty by filing a
                notice of appeal, filing a motion to correct error, or pursuing an
                appeal.


[11]   The Indiana Supreme Court has concluded that the sanction imposed when

       probation is revoked does not qualify as a “sentence” under Post-Conviction

       Rule 2. Specifically, in Dawson, 943 N.E.2d at 1281, the Indiana Supreme

       Court explained as follows:


                [T]he action taken by a trial court in a probation revocation
                proceeding is not a ‘sentencing.’ The court is merely determining
                whether there has been a violation of probation and, if so, the
                extent to which the court’s conditional suspension of the original
                sentence should be modified and/or whether additional
                conditions or terms of probation are appropriate.


[12]   Therefore, Cummings is not an “eligible defendant.” Because belated appeals

       from orders revoking probation are not available pursuant to Post-Conviction

       Rule 2, this matter is not properly before us due to the lack of a timely notice of

       appeal.3




       3
        The Indiana Supreme Court has also explained that an appellate court may restore a right of appeal from an
       untimely notice of appeal if there are “extraordinarily compelling reasons to do so.” In re Adoption of O.R., 16
       N.E.3d 965, 971 (Ind. 2014). For example, in O.R., the Indiana Supreme Court concluded that, in an appeal
       of a father seeking to challenge the adoption of his child, there were extraordinarily compelling reasons that
       existed to restore the father’s right to appeal when he had filed an untimely notice of appeal. Id.at 972. Here,
       we find no such extraordinarily compelling reasons.

       Court of Appeals of Indiana | Opinion 19A-CR-833 | November 21, 2019                                Page 5 of 6
[14]   Dismissed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-833 | November 21, 2019   Page 6 of 6
