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 Aug 22 2014, 6:13 am
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
CLEVELAND WALKER GREGORY F. ZOELLER
Miami Correctional Facility Attorney General of Indiana
Bunker Hill, Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CLEVELAND WALKER, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1312-CR-508
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D05-1107-FB-153
August 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Cleveland Walker appeals the trial court’s denial of his motion to correct erroneous
sentence. We conclude that because he failed to file a timely notice of appeal, we lack
subject matter jurisdiction to hear his appeal. As such, we dismiss.
Facts and Procedural History
In January 2012, Walker pled guilty via plea agreement to class B felony dealing in
cocaine. He was sentenced pursuant to the plea agreement to an eight-year term, to be served
consecutive to a term in another cause. The trial court awarded him twelve days’ jail time
credit. In January 2013, Walker filed a motion to correct erroneous sentence, claiming that
he was entitled to an additional 196 days’ jail time credit and that such credit should have
been awarded in the instant cause instead of the other cause. The trial court denied his
motion. In February 2013, Walker filed a motion for jail time credit, again claiming that he
was entitled to 196 days’ credit. In March 2013, the trial court denied the motion.
In August 2013, Walker filed another motion to correct erroneous sentence, which the
trial court denied in an order issued on October 8, 2013. The order was entered into the
chronological case summary (“CCS”) on October 14, 2013. The CCS also shows that on
November 6, 2013, Walker filed a verified motion for leave to proceed in forma pauperis on
appeal. According to the CCS, on December 17, 2013, the trial court granted Walker’s
motion to proceed in forma pauperis, but specifically noted, “No appeal filed to date.” Id. at
10. The CCS indicates that Walker filed his notice of appeal on December 20, 2013.
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Discussion and Decision
The dispositive issue is whether Walker timely filed his notice of appeal. Where an
appellant fails to timely file a notice of appeal, this Court lacks jurisdiction to hear the
appeal. Phovemire v. State, 960 N.E.2d 176, 177 (Ind. Ct. App. 2011). Indiana Appellate
Rule 9(A) governs the initiation of an appeal and states in pertinent part,
A party initiates an appeal by filing a Notice of Appeal with the Clerk …
within thirty (30) days after the entry of a Final Judgment is noted in the [CCS]
…. Unless the Notice of Appeal is timely filed, the right to appeal shall be
forfeited except as provided by [Post-Conviction Rule] 2.
Postconviction Rule (“PCR”) 2(1) states, “Where a defendant after a trial or plea of
guilty fails to file a timely notice of appeal, a petition for permission to file a belated notice
of appeal for appeal of the conviction may be filed with the trial court.” It is well settled that
PCR 2(1) is a “vehicle for belated direct appeals alone.” Davis v. State, 771 N.E.2d 647, 649
(Ind. 2002) (citations omitted).
[PCR 2(1)] provides petitioners with a method to seek permission for belated
consideration of appeals addressing conviction, but does not permit belated
consideration of appeals of other post-judgment petitions. More specifically,
the Court of Appeals lacks subject matter jurisdiction over appeals other than
direct appeals, unless such appeals or petitions are timely brought.
Id. (internal citations omitted).
Here, Walker attempts to appeal the denial of a motion to correct erroneous sentence.
He does not—and cannot, based on his plea agreement—appeal his conviction. Thus, PCR 2
is not an available vehicle for him. As a result, his right to appeal is subject to forfeiture
under Indiana Appellate Rule 9(A) if not filed within thirty days after the entry of the
judgment. In his notice of appeal, deemed filed on December 20, 2013, he specifically noted
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that he purported to appeal the trial court’s final judgment of October 14, 2013. On its face,
the notice of appeal is untimely, being filed well after the thirty-day deadline. Notably,
Walker made one filing within the thirty-day period, that is, his November 6, 2013 motion to
proceed in forma pauperis on appeal. However, we have held that filings that do not conform
to the substance of a notice of appeal are insufficient to satisfy Indiana Appellate Rule 9(A).
See In re D.L., 952 N.E.2d 209, 213 (Ind. Ct. App. 2011) (holding that notices of intent to
appeal are not functionally equivalent to notices of appeal and therefore do not operate to
initiate the appeal on the date of filing), trans. denied.
Based on the foregoing, we conclude that Walker’s notice of appeal was untimely
filed. Because a timely filing is a jurisdictional prerequisite, the case is not properly before
us. Consequently, we dismiss.
Dismissed.
RILEY, J., and MATHIAS, J., concur.
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