MEMORANDUM DECISION                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                                               May 04 2016, 7:48 am

this Memorandum Decision shall not be                                                     CLERK
                                                                                      Indiana Supreme Court
regarded as precedent or cited before any                                                Court of Appeals
                                                                                           and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Dakevee Wiggins                                          Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dakevee Wiggins,                                         May 4, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         71A05-1512-PC-2169
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jerome Frese,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         71D03-1006-PC-34



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1512-PC-2169 | May 4, 2016            Page 1 of 5
[1]   Dakevee Wiggins appeals the denial of his motion for an extension of time to

      appeal the denial of his post-conviction relief petition. Finding no error, we

      affirm.


                                                    Facts
[2]   On April 3, 2009, a jury found Wiggins guilty of murder. On April 30, 2009,

      the trial court sentenced him to sixty-one years imprisonment. He appealed his

      conviction, and we affirmed the judgment of the trial court in a memorandum

      decision. Wiggins v. State, 71A03-0905-CR-222 (Ind. Ct. App. Dec. 17, 2009).


[3]   On June 9, 2010, Wiggins, pro se, filed a petition for post-conviction relief,

      which the State answered on June 16, 2010. Wiggins then filed an amended

      petition for post-conviction relief on September 18, 2012. After Wiggins made

      several attempts to withdraw his petition, which were denied by the post-

      conviction court, the State filed its answer to the amended petition on

      December 18, 2013. On January 8, 2014, the post-conviction court denied

      Wiggins’s post-conviction relief petition.


[4]   On February 11, 2014, Wiggins filed a request for an extension of time to

      determine whether he would like to appeal. The post-conviction court denied

      this request on March 3, 2014, and deemed the request to be a notice of appeal.

      On August 24, 2015, Wiggins filed a second request for an extension of time—

      this also was denied by the post-conviction court. Wiggins now appeals this

      denial of his second request for an extension of time.



      Court of Appeals of Indiana | Memorandum Decision 71A05-1512-PC-2169 | May 4, 2016   Page 2 of 5
                                   Discussion and Decision
[5]   Wiggins’s argument is based on Indiana Trial Rule 72(E), which reads as

      follows:

              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 . . . . Such extension shall
              commence when the party first obtained actual knowledge and
              not exceed the original time limitation.


      Wiggins argues that the Chronological Case Summary (CCS) does not

      explicitly indicate that he ever received the post-conviction court’s January 8,

      2014, order (the Order) denying his petition. Therefore, he argues, the post-

      conviction court abused its discretion by denying his motion for an extension of

      time to appeal the Order.


[6]   We review the determination of a post-conviction court on a motion for relief

      pursuant to Trial Rule 72(E) for an abuse of discretion. Taylor v. State, 939

      N.E.2d 1132, 1136 (Ind. Ct. App. 2011). We consider whether the evidence

      could reasonably support the conclusion reached by the post-conviction court.

      Id.


      Court of Appeals of Indiana | Memorandum Decision 71A05-1512-PC-2169 | May 4, 2016   Page 3 of 5
[7]    We find several pieces of evidence indicating that Wiggins had actual

       knowledge of the Order. First, the Order itself indicates that it was served upon

       “Defendant-Petitioner.” Appellant’s App. p. 70.


[8]    Second, Wiggins filed a motion for an extension of time on February 11, 2014,

       in which he said, “I am asking the Court for a 45 days exten[sion] on my

       behalf. I would like to appeal my post conviction P.C. under Appellate Rule

       9(A).” Id. at 71. This indicates that Wiggins had actual knowledge of the

       Order, as he was contemplating appealing that Order.


[9]    Third, when the post-conviction court decided to treat Wiggins’s motion as a

       notice of appeal, that March 3, 2014 order stated the relevant background of the

       case, including the following: “1/8/14—This Court entered its Denial of

       Petitioner’s P.C.R. Petition.” Id. at 72. This order also indicates that it was

       served on Wiggins.


[10]   Finally, when Wiggins wrote his second request for an extension of time, he

       referred to all of these documents mentioned above.


[11]   Thus, the post-conviction court had a wealth of evidence showing that Wiggins

       had actual knowledge of the Order. The post-conviction court did not abuse its

       discretion in denying his second motion for an extension of time, which he

       wrote seventeen and a half months after the post-conviction court denied his

       first motion for an extension of time.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1512-PC-2169 | May 4, 2016   Page 4 of 5
[12]   The judgment of the post-conviction court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1512-PC-2169 | May 4, 2016   Page 5 of 5
