Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
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:

FREDDIE L. McKNIGHT, III                            GREGORY F. ZOELLER
New Castle Correctional Annex                       Attorney General of Indiana
New Castle, Indiana
                                                    IAN McCLEAN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana



                                                                          May 22 2013, 9:36 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

FREDDIE L. McKNIGHT, III,                           )
                                                    )
       Appellant-Petitioner/Cross-Appellee,         )
                                                    )
               vs.                                  )      No. 20A03-1109-CR-454
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent/Cross-Appellant.         )


                     APPEAL FROM THE ELKHART SUPERIOR COURT
                         The Honorable Terry C. Shewmaker, Judge
                              Cause No. 20C01-0606-FA-49



                                           May 22, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                       Case Summary

       Freddie L. McKnight, III, appeals the trial court’s denial of his petition for post-

conviction relief. The State cross-appeals, arguing that McKnight failed to timely file his

motion to correct error in the trial court and therefore his right to appeal has not been

preserved. We agree and dismiss the appeal.

                             Facts and Procedural History

       On June 19, 2006, the State charged McKnight with class A felony dealing in cocaine

weighing three grams or more. Following a trial held on November 13 and 14, 2006, the jury

found McKnight guilty as charged. The trial court imposed a sentence of forty-eight years.

On direct appeal, this Court affirmed McKnight’s conviction in McKnight v. State, No.

20A05-0708-CR-469 (Ind. Ct. App. Feb. 14, 2008), trans. denied.

       On March 26, 2009, McKnight filed a pro se petition for post-conviction relief. The

State answered and, on July 15, 2010, the post-conviction court held an evidentiary hearing.

The hearing was continued to February 24, 2011. Before that hearing, McKnight filed a first

and a second amended petition for post-conviction relief. Evidentiary hearings were held on

February 24 and 25 and March 10, 2011. On May 18, 2011, the post-conviction court issued

its findings of fact, conclusions of law, and judgment denying post-conviction relief.

       Thereafter, on July 17, 2011, McKnight delivered a pro se motion to correct error to

prison officials for mailing to the Elkhart Circuit Court. The motion to correct error was file-

stamped by the clerk of the Elkhart Circuit Court when it was received on June 20, 2011.

The post-conviction court held a hearing on July 21, 2011, and denied the motion to correct


                                               2
error on August 18, 2011. McKnight delivered a pro se notice of appeal to prison officials

for mailing on September 28, 2011. That notice was deemed filed by this Court on

September 30, 2011. The clerk’s transcript was completed on May 21, 2011.

       One year later, after numerous defective filings and McKnight’s failure to file timely

an appellant’s brief, on May 21, 2012, this Court dismissed the appeal with prejudice

pursuant to Indiana Appellate Rule 45(D). However, on June 4, 2012, our motions panel

granted McKnight’s motion to file a belated brief and reinstated the appeal. Following

numerous additional filings and extensions of time granted to both parties by this Court, the

appeal is now ready for our review.

                                 Discussion and Decision

       On cross-appeal, the State argues that McKnight’s appeal should be dismissed because

his motion to correct error was untimely and thus, we lack subject matter jurisdiction to

consider his appeal. We agree.

       The post-conviction court entered its findings of fact, conclusions of law, and

judgment denying McKnight’s petition for post-conviction relief on May 18, 2011. Thirty

days later, on Friday, June 17, 2011, McKnight delivered his motion to correct error to prison

officials for mailing to the Elkhart Circuit Court. The Elkhart Circuit Court deemed the

motion filed upon receipt on June 20, 2011, thirty-three days after the entry of final

judgment.

       Subject matter jurisdiction cannot be waived, and courts at all levels are obligated to

consider the issue sua sponte even if the parties do not question it. Tarrance v. State, 947


                                              3
N.E.2d 494, 495 (Ind. Ct. App. 2011). It is well settled that when an appellant files a motion

to correct error that is not mandatory under the rules, such as McKnight’s motion in this case,

the motion must be filed within thirty days after the judgment in order to preserve the

appellant’s right to appeal. See Dixon v. State, 566 N.E.2d 594, 596 (Ind. Ct. App. 1991)

trans.denied; Ind. Trial Rule 59(C). Indeed, when a motion to correct error is not timely

filed, the right to appeal is not preserved. Dowell v. State, 922 N.E.2d 605, 609 (Ind. 2010).

In Dowell, our supreme court specifically noted the particularity with which the Indiana

Rules of Trial Procedure define what constitutes filing and when filings are deemed to have

occurred depending on the mode of delivery. Id. Indiana Trial Rule 5(F) provides that the

filing of pleadings, motions, and other papers with the court as required by the trial rules

shall be made by one of the following methods:

       (1) Delivery to the clerk of the court;

       (2) Sending by electronic transmission under the procedure adopted pursuant
       to Administrative Rule 12;

       (3) Mailing to the clerk by registered, certified or express mail return receipt
       requested;

       (4) Depositing with any third-party commercial carrier for delivery to the clerk
       within three (3) calendar days, costs prepaid, properly addressed;

       (5) If the court so permits, filing with the judge, in which event the judge shall
       note thereon the filing date and forthwith transmit them to the office of the
       clerk; or

       (6) Electronic filing, as approved by the Division of State Court
       Administration pursuant to Administrative Rule 16.

       Filing by registered or certified mail and by third-party commercial carrier
       shall be complete upon mailing or deposit[.]

                                                 4
         Any party filing any paper by any method other than personal delivery to the
         clerk shall retain proof of filing.

         Regarding Trial Rule 5(F), the Dowell court explained,

         The gist of this is that when a party transmits by an independently verifiable
         means (like registered mail or third-party carrier), the filing is deemed to have
         occurred upon mailing or deposit. When other means are used, filing occurs
         on the date the filing is in the hands of the clerk.

922 N.E.2d at 609 (citation omitted). The court emphasized that the timing for filing motions

to correct error is different than that for a notice of appeal, and that the principle of the prison

mailbox rule1 has been applied under Trial Rule 5 “only when the court is satisfied that the

prisoner had employed certified mail, return receipt requested, and deposited his mailing in

the institutional mail pouch by or before the filing deadline, notwithstanding the fact that the

postmark reflected a date after the deadline.” 2 Id. Because the prisoner in Dowell used

regular mail, perhaps tendering it on the last possible day, the trial court appropriately date-

stamped it when it arrived in the clerk’s office, two days after the filing deadline. Id.

Concluding that the right to appeal was not preserved by the untimely motion, our supreme

court dismissed the appeal. Id.

         The record indicates that, similar to the prisoner in Dowell, McKnight delivered his

motion to prison officials for mailing on the last possible day, June 17, 2011, and that he paid


         1
           The prison mailbox rule provides that a pro se incarcerated litigant who can provide reasonable,
legitimate, and verifiable documentation supporting a claim that a document was timely submitted to prison
officials for mailing accomplishes a timely filing. Dowell, 922 N.E.2d at 607.
         2
          We do not disagree with McKnight that the tardy filing of his subsequent notice of appeal may well
have been deemed timely pursuant to the principle of the prison mailbox rule as applied under our appellate
rules. However, his election to first file a motion to correct error brings the issue of that filing to the forefront,
the timeliness of which under our trial rules is a necessary prerequisite to our appellate jurisdiction.

                                                          5
for the use of only regular mail rather than certified mail return receipt requested or third-

party commercial carrier.3 Accordingly, the Elkhart Circuit Court appropriately date-stamped

the motion on the day it arrived to the clerk, June 20, 2011, three days after the filing

deadline. McKnight’s untimely filing of his motion to correct error has resulted in the failure

to preserve his right to appeal. Therefore, we dismiss his appeal.

        Dismissed.

RILEY, J., and BAILEY, J., concur.




        3
         McKnight argues that the prison official to whom he delivered his motion to correct error for mailing
should be considered a “third-party commercial carrier” as described by Trial Rule 5 and that filing was
accomplished when given to that official. McKnight cites no authority for this unique argument and we are
confident that the drafters of our trial rules did not contemplate such a tortured interpretation of the terms used.


                                                         6
