MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                   May 21 2019, 8:19 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana

Jay M. Lee                                               Caryn N. Szyper
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David Turner,                                            May 21, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1998
        v.                                               Appeal from the Orange Circuit
                                                         Court
State of Indiana,                                        The Honorable Steven L. Owen
Appellee-Respondent                                      Trial Court Cause No.
                                                         59C01-1510-PC-907
                                                         59C01-1510-PC-908



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019                     Page 1 of 9
[1]   David Turner appeals the denial of his Indiana Post Conviction Rule 2 motion

      to file a belated notice of appeal. Turner wishes to file the belated notice of

      appeal in order to argue the trial court improperly denied his motion to

      withdraw guilty pleas to dealing in cocaine as a Class B felony 1 and dealing in

      methamphetamine as a Class B felony. 2 We affirm.



                                Facts and Procedural History
[2]   On November 10, 2014, Turner agreed to plead guilty to Class B felony dealing

      in methamphetamine in Cause No. 59C01-1403-FB-212 (“FB-212”) and Class

      B felony dealing in cocaine in Cause No. 59C01-1112-FB-79 (“FB-79”). The

      agreement called for an aggregate sentence of sixteen years to be served in the

      Indiana Department of Correction, eight years on each count to be served

      consecutively. In exchange, the State agreed to dismiss five remaining counts

      in FB-212, five remaining counts in FB-79, charges against Turner in six other

      cases, and a pending petition to revoke probation.


[3]   At the change of plea hearing, the trial court placed Turner under oath. Turner

      acknowledged he conferred with his attorneys prior to signing the plea

      agreement. Turner acknowledged he knew he had a right to a full and complete

      trial in front of a jury and he was choosing to resolve the matter through a




      1
          Ind. Code § 35-48-4-1(a)(2).
      2
          Ind. Code § 35-48-4-1.1(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019   Page 2 of 9
      negotiated agreement. Turner testified he committed the crimes, and he denied

      being treated for any mental illness or suffering from any mental or emotional

      disability. The trial court advised Turner that, if he proceeded with trial and

      was found guilty, he would have a right to appeal his conviction. Turner

      acknowledged he understood that right and that he was giving up that right by

      agreeing to plead guilty.


[4]   The trial court also advised Turner that he had the right to be represented by

      counsel both at trial and on appeal. The trial court noted Turner had been

      represented by five different attorneys and asked Turner if his current

      representation forced him to do anything he did not want to do. Turner stated

      that they had not. The trial court asked Turner whether he was satisfied with

      the representation he received from his attorneys, whether they had been good

      attorneys for him, and Turner replied “[v]ery much so, yes sir.” (Appellant

      Am. Supp. App. Vol. II at 20.) Turner acknowledged that neither he nor his

      family or friends had been offered anything or received any promises besides

      what was contained in the plea agreement. Also, Turner denied that he had

      been forced or threatened into entering the plea agreement. The trial court then

      allowed Turner to plead guilty to Class B felony dealing in cocaine and Class B

      felony dealing in methamphetamine.


[5]   On January 8, 2015, the date Turner was scheduled to be sentenced, he filed a

      Verified Motion to Withdraw Guilty Plea. Therein, Turner asserted “his plea

      was involuntary because he was nervous and not in his right mind at the time

      the plea was made” and “his plea was involuntary because it was improperly

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019   Page 3 of 9
      induced by promises.” (Id. at 49.) The trial court addressed Turner’s motion at

      the sentencing hearing. The trial court read into the record portions of the

      transcript from the change of plea hearing and allowed Turner to present

      argument on his motion. Turner argued he pled guilty because a promise had

      been made related to the release of the money he posted for bail. The Sheriff of

      Orange County testified about the status of Turner’s bond. The State opposed

      Turner’s Motion to Withdraw Guilty Plea and noted Turner “has some sort of

      buyer[’]s remorse at best and at worst he is just trying to gain [sic] the system.”

      (Id. at 143-144.) The trial court denied Turner’s Verified Motion to Withdraw

      Guilty Plea, sentenced him in accordance with the plea agreement, and granted

      the motions of Turner’s counsel to withdraw their appearances. The trial court

      noted “the denial is a final and appealable order, no just cause for delay. This is

      a final and appealable sentence.” (Id. at 147.)


[6]   Turner did not file a notice of appeal within thirty days of the trial court’s denial

      of his motion to withdraw guilty plea. Turner filed a pro se Petition for Post-

      Conviction Relief in July 2015. The trial court denied Turner’s Petition but

      appointed the public defender’s office to review and consider his Petition. The

      public defender’s office appeared on Turner’s behalf and filed a Verified Motion

      to Correct Error asserting the trial court erred in denying Turner’s Petition

      before the public defender had the opportunity to consult with Turner and

      amend the Petition. The trial court granted the Motion to Correct Error and

      reinstated Turner’s Petition. Turner subsequently filed a Verified Motion for

      Permission to File a Belated Notice of Appeal in July 2018, which the trial


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019   Page 4 of 9
      court denied without holding a hearing and in an order containing no findings

      or conclusions.



                                Discussion and Decision
[7]   Generally, we will not reverse a trial court’s decision to deny permission to file

      a belated notice of appeal unless there is an abuse of discretion. Townsend v.

      State, 843 N.E.2d 972, 974 (Ind. Ct. App. 2006), trans. denied. However, “when

      the allegations contained in the motion itself provide the only basis in support

      of a motion, we review the decision de novo.” Id. Therefore, as the trial court

      denied Turner’s motion without hearing, we review this matter de novo. See id.


[8]   The Indiana Appellate Rules give a litigant thirty days to initiate an appeal of a

      final judgment. Ind. Appellate Rule 9(A)(1). A criminal defendant who does

      not file an appeal within that timeframe may seek permission from the trial

      court to file a belated appeal pursuant to Indiana Post-Conviction Rule 2. Ind.

      App. R. 9(A)(5). Post-Conviction Rule 2(1) provides that a trial court shall

      permit the defendant to file a belated notice of appeal if the defendant

      demonstrates:


              (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.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019   Page 5 of 9
       A defendant is required to make each showing by a preponderance of the

       evidence. Amphonephong v. State, 32 N.E.3d 825, 830 (Ind. Ct. App. 2015).

       There are no set standards to determine whether a defendant has been diligent

       in pursuing permission to file a belated notice of appeal. Id. We look to “the

       defendant’s level of awareness of his procedural remedy, age, education,

       familiarity with the legal system, whether the defendant was informed of his

       appellate rights, and whether he committed an act or omission [that]

       contributed to the delay.” Id. (internal quotation marks omitted).


[9]    Turner argues it was not his fault that he failed to timely file a notice of appeal

       because the trial court did not adequately explain his appellate rights or describe

       the process by which he might perfect his rights in regard to the denial of his

       motion to withdraw his guilty plea. Turner acknowledges he was advised of his

       right to appeal, but he argues the trial court erred by advising Turner of his

       appeal right deep within the sentencing statement, by not advising Turner of the

       process to perfect an appeal, and by dismissing his court appointed trial

       counsel. Notably, Turner does not cite any case law to support the proposition

       that the notice he received was inadequate.


[10]   In Jackson v. State, we reversed and remanded for hearing on a motion to file

       belated notice of appeal when the limited record before us made it apparent the

       trial court failed to advise the defendant of his right to appeal his sentence and

       expressly advised him he could not challenge his conviction or sentence on

       direct appeal. 853 N.E.2d 138, 141 (Ind. Ct. App. 2006). In contrast to Jackson,

       the record in this case demonstrates Turner was advised of his right to appeal

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019   Page 6 of 9
       the denial of his motion to withdraw guilty plea. (Appellant Am. Supp. App.

       Vol. II at 147.) Turner has not demonstrated the timing of the statement is

       relevant to our analysis.


[11]   Turner also argues he was diligent in requesting permission to file a belated

       notice of appeal because he filed a pro se petition for post-conviction relief

       within six months and any further delay should not be attributable to him, even

       though the motion to file a belated appeal was filed three and a half years after

       he was sentenced. However, our Indiana Supreme Court has held that a

       petition under Post-Conviction Rule 2 would have been unsuccessful when the

       defendant testified that he had read and understood the plea agreement, which

       stated the defendant retained the right to directly appeal his sentence, the

       defendant failed to timely appeal his sentence, and the defendant had

       considerable prior experience with the criminal justice system. Hill v. State, 960

       N.E.2d 141, 150 (Ind. 2012), reh’g denied.


[12]   Like the defendant in Hill, Turner was notified regarding his appellate rights

       and had numerous past encounters with the legal system. The trial court

       notified Turner at the sentencing hearing that he could appeal the denial of his

       motion to withdraw guilty plea. Additionally, Turner is a middle-aged adult

       male with an extensive criminal history. He was born in 1971. Turner

       accumulated six misdemeanor convictions between 1989 and 1991, and he

       received his first felony conviction for Class D felony theft in 1992. Turner

       continued to pursue a criminal lifestyle, attaining fifteen additional

       misdemeanor and five additional felony convictions between 1992 and 2005.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019   Page 7 of 9
       Thus, he has some familiarity with the operation of the legal system and should

       be aware of the importance of timely initiating an appeal. Therefore,

       considering all these circumstances, we cannot say Turner was diligent in

       requesting permission to file a belated notice of appeal. See Witt v. State, 867

       N.E.2d 1279, 1282 (Ind. 2007) (holding defendant was not diligent in

       requesting permission to file a belated notice of appeal when request came nine

       and a half years after sentencing).


[13]   Neither does the record indicate the trial court erred in denying Turner’s

       motion to withdraw his guilty plea. The denial of a motion to withdraw a

       guilty plea will be reversed only if the trial court abused its discretion in denying

       the motion. Jefferies v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012), trans.

       denied. “In determining whether a trial court has abused its discretion in

       denying a motion to withdraw a guilty plea, we examine the statements made

       by the defendant at the guilty plea hearing to decide whether the plea was

       offered ‘freely and knowingly.’” Id. (quoting Brightman v. State, 758 N.E.2d 41,

       44 (Ind. 2001)).


[14]   Here, the record demonstrates Turner’s statements at the change of plea hearing

       were offered freely and knowingly. Prior to entry of his plea, Turner testified he

       was satisfied with his representation, no promises had been made to him that

       were not memorialized in the plea agreement, and he was not suffering from

       any mental or emotional disability. Turner answered the trial court’s questions

       at the change of plea hearing directly and without equivocation. Thus, there is

       no evidence that the trial court abused its discretion in denying Turner’s motion

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019   Page 8 of 9
       to withdraw his guilty plea. See Coomer v. State, 652 N.E.2d 60, 63 (Ind. 1995)

       (holding trial court was not required to grant motion to withdraw guilty plea

       considering defendant’s clear testimony, prior to entry of plea, that he was not

       pressured into pleading guilty).



                                               Conclusion
[15]   Turner has failed to demonstrate he was not at fault for failing to timely file a

       notice of appeal and he was diligent in filing his motion for belated appeal.

       Neither does the record suggest the trial court abused its discretion by denying

       Turner’s motion to withdraw his guilty plea. Therefore, we affirm the trial

       court’s denial of his motion.


[16]   Affirmed.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019   Page 9 of 9
