MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                             FILED
court except for the purpose of establishing                     Dec 21 2016, 8:50 am

the defense of res judicata, collateral                               CLERK
                                                                  Indiana Supreme Court
estoppel, or the law of the case.                                    Court of Appeals
                                                                       and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Stephen T. Owens                                        Gregory F. Zoeller
Public Defender of Indiana                              Attorney General of Indiana

Jonathan O. Chenoweth                                   Tyler G. Banks
Deputy Public Defender                                  Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Joseph Honeycutt,                                       December 21, 2016
Appellant-Defendant,                                    Court of Appeals Case No. 38A02-
                                                        1608-CR-1809
        v.                                              Appeal from the Jay Circuit Court
                                                        The Honorable Brian D.
State of Indiana,                                       Hutchison, Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        38C01-1304-FC-7



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 38A02-1608-CR-1809 | December 21, 2016   Page 1 of 8
                                          Case Summary
[1]   In April of 2013, Appellant-Defendant Joseph Honeycutt was charged with

      Class C felony forgery, Class D felony perjury, and Class D felony identity

      deception. At some point after being charged but before trial, Honeycutt

      absconded to Tennessee from Indiana. Honeycutt was tried in absentia after

      he failed to appear for his November 14, 2013 jury trial. At the conclusion of

      trial, the jury found Honeycutt guilty as charged and the trial court sentenced

      him to an aggregate term of eleven years. Honeycutt was arrested in Tennessee

      on December 12, 2013, and was soon thereafter transported back to Indiana.

      Honeycutt had been returned to Indiana by December 30, 2013, at which time

      he appeared before the trial court.


[2]   On June 13, 2016, Honeycutt filed a petition seeking permission to file a belated

      appeal. Following a hearing, the trial court denied Honeycutt’s petition.

      Honeycutt challenges this denial on appeal. Concluding that the trial court

      acted within its discretion in denying Honeycutt’s petition, we affirm.



                            Facts and Procedural History
[3]   On April 10, 2013, Appellee-Plaintiff the State of Indiana (“the State”) charged

      Honeycutt with Class C felony forgery, Class D felony perjury, and Class D

      felony identity deception. Honeycutt, who was initially represented by counsel,

      entered into a plea agreement, pled guilty, and proceeded to sentencing.

      During this initial sentencing hearing, which was conducted on September 6,


      Court of Appeals of Indiana | Memorandum Decision 38A02-1608-CR-1809 | December 21, 2016   Page 2 of 8
      2013, Honeycutt requested permission to withdraw his guilty plea. Honeycutt

      indicated that he wished to part ways with his then-counsel and to hire new

      counsel. The trial court granted Honeycutt’s request and scheduled the matter

      for a jury trial on November 14, 2013.


[4]   At some point before November 14, 2013, Honeycutt absconded to Tennessee.

      Honeycutt was tried in absentia after he failed to appear for his November 14,

      2013 jury trial. When later asked why he did not appear for trial, Honeycutt

      indicated that he did not attend because he had been unable to retain a new

      attorney to represent him and also because he was scared of being convicted.


[5]   At the conclusion of trial, the jury found Honeycutt guilty as charged, after

      which the trial court sentenced him to an aggregate term of eleven years. The

      trial court’s sentencing order clearly set forth the applicable time limitations for

      appealing the conviction and sentence. Also at the time of sentencing, the trial

      court issued a warrant for Honeycutt’s arrest.


[6]   Honeycutt was arrested in Tennessee on December 12, 2013. He was soon

      thereafter transported back to Jay County.


[7]   On December 30, 2013, Honeycutt appeared before the trial court for a hearing

      related to the amount of credit time he was entitled to receive. Honeycutt made

      no mention of appealing his conviction or sentence during this hearing.

      Honeycutt subsequently filed motions to modify his sentence in August of 2014,

      October of 2015, and December of 2015. Each of these motions was denied.



      Court of Appeals of Indiana | Memorandum Decision 38A02-1608-CR-1809 | December 21, 2016   Page 3 of 8
[8]   On June 13, 2016, Honeycutt filed a petition seeking permission to file a belated

      appeal. The trial court conducted a hearing on Honeycutt’s petition on July 18,

      2016, after which it denied Honeycutt’s petition. In denying Honeycutt’s

      petition, the trial court stated the following:


              3.     Defendant’s failure to file said appeal was due in large part
              to the fact that he absconded from the jurisdiction of the Court to
              avoid trial, and was tried and sentenced in absentia.


              4.     Defendant has not been diligent in requesting to file a
              belated appeal. He has filed numerous motions since being
              rearrested and has been represented by counsel during this
              period. However, he did not seek the instant relief for
              approximately 2 ½ years after his re-arrest.


      Appellant’s App. p. 35.



                                Discussion and Decision
[9]   Honeycutt challenges the trial court’s denial of his request for permission to file

      a belated appeal.

              Indiana Post-Conviction Rule 2(1) provides a defendant an
              opportunity to petition the trial court for permission to file a
              belated notice of appeal. It provides[:]

                      Where an eligible defendant1 convicted after a trial or
                      plea of guilty fails to file a timely notice of appeal, a




      1
        An “eligible defendant” is defined under the rule as “a defendant who, but for the defendant's
      failure to do so timely, would have the right to challenge on direct appeal a conviction or
      Court of Appeals of Indiana | Memorandum Decision 38A02-1608-CR-1809 | December 21, 2016   Page 4 of 8
                        petition for permission to file a belated notice of
                        appeal for appeal of the conviction may be filed with
                        the trial court where:

                                (a) the failure to file a timely notice of
                                appeal was not due to the fault of the
                                defendant; and

                                (b) the defendant has been diligent in
                                requesting permission to file a belated
                                notice of appeal under this rule[.]

                        It includes the same requirements of diligence and
                        lack of fault for a belated motion to correct error.
                        Post-Conviction Rule 2 also gives a defendant the
                        right to appeal a trial court’s denial of permission to
                        file a belated notice of appeal or motion to correct
                        error.


       Moshenek v. State, 868 N.E.2d 419, 422 (Ind. 2007) (footnote in original, internal

       citations omitted).


[10]           The decision whether to grant permission to file a belated notice
               of appeal or belated motion to correct error is within the sound
               discretion of the trial court. The defendant bears the burden of
               proving by a preponderance of the evidence that he was without
               fault in the delay of filing and was diligent in pursuing permission
               to file a belated motion to appeal. There are no set standards of
               fault or diligence, and each case turns on its own facts. Several
               factors are relevant to the defendant’s diligence and lack of fault
               in the delay of filing. These include the defendant’s level of
               awareness of his procedural remedy, age, education, familiarity
               with the legal system, whether the defendant was informed of his



       sentence after a trial or plea of guilty by filing a notice of appeal, filing a motion to correct error,
       or pursuing an appeal.” P-C.R. 2.

       Court of Appeals of Indiana | Memorandum Decision 38A02-1608-CR-1809 | December 21, 2016     Page 5 of 8
               appellate rights, and whether he committed an act or omission
               which contributed to the delay.

               Because diligence and relative fault are fact sensitive, we give
               substantial deference to the trial court’s ruling.


       Id. at 422-23 (Ind. 2007) (internal quotation and citations omitted).


[11]   In the instant matter, the trial court determined that Honeycutt was at fault for

       his failure to file a timely appeal, noting that he absconded from the jurisdiction

       of the trial court in an effort to avoid trial. Honeycutt indicated that he

       intentionally absconded to Tennessee because he was having difficulty retaining

       new counsel and was afraid of being convicted. The trial court also found that

       Honeycutt had not be diligent in requesting permission to file a belated appeal.

       In making this finding, the trial court noted that although Honeycutt filed a

       number of motions with the trial court, he waited approximately two-and-a-half

       years after being arrested and returned to Indiana before filing the instant

       request.


[12]   Honeycutt acknowledges that his flight from Indiana was his own fault.

       However, he argues that he was not at fault for what he claims was a delay in

       returning him to Indiana and providing him with notice of his conviction. The

       record reflects that Honeycutt was arrested in Tennessee on December 12,

       2013. He was returned to Indiana by no later than December 30, 2013, on

       which date he appeared before the trial court for a hearing regarding the

       appropriate amount of credit time he was entitled to receive in connection with

       his incarceration for his underlying convictions and sentence. As such, it is

       Court of Appeals of Indiana | Memorandum Decision 38A02-1608-CR-1809 | December 21, 2016   Page 6 of 8
       reasonable to infer that Honeycutt had been made aware of his convictions and

       resulting sentence by no later than December 30, 2013.


[13]   Honeycutt did not file a petition requesting permission to file a belated appeal

       until June 13, 2016. Even assuming that there was indeed some delay in

       returning Honeycutt to Indiana and informing him of his convictions and

       sentence, Honeycutt has provided no explanation why he did not seek

       permission for approximately two-and-a-half years. As such, we cannot say

       that the trial court abused its discretion in finding that the fault for failing to file

       an appeal falls, at least in large part, on Honeycutt.


[14]   Honeycutt also challenges the trial court’s determination that he has not been

       diligent in requesting permission to file a belated appeal. In raising this

       challenge, Honeycutt argues that he was not aware that he could request

       permission to file a belated appeal until a short time before he did so on June

       13, 2016. The trial court, however, appears not to have believed Honeycutt’s

       claim that he was not aware of any procedure for requesting permission to file a

       belated appeal until a short time before he did so on June 13, 2016. Again,

       because a finding relating to diligence is fact-sensitive and the trial court, acting

       as the trier of fact, was in the best position to judge Honeycutt’s credibility, we

       will defer to the trial court’s determination in this regard. See Moshenek, 868

       N.E.2d at 423.


[15]   In finding that Honeycutt had not been diligent, the trial court noted that since

       his re-arrest in December of 2013, Honeycutt has filed a number of motions


       Court of Appeals of Indiana | Memorandum Decision 38A02-1608-CR-1809 | December 21, 2016   Page 7 of 8
       while being represented by counsel. It seems unreasonable to believe that the

       counsel who represented Honeycutt in the intervening two-and-a-half years

       after Honeycutt’s arrest were not aware or did not advise Honeycutt of the

       available procedures for requesting a belated appeal. Honeycutt also admitted

       that he went to the law library in his penal facility “as often as [he] could go” in

       order to research potential avenues of relief. Tr. p. 18. Upon review, we

       cannot say that the trial court’s determination regarding diligence amounted to

       an abuse of its discretion.



                                               Conclusion
[16]   In sum, we conclude the trial court did not abuse its discretion in denying

       Honeycutt’s request for permission to file a belated appeal.


[17]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 38A02-1608-CR-1809 | December 21, 2016   Page 8 of 8
