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.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK S. LENYO GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
FILED
Jan 11 2013, 9:13 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
DEJUAN T. LOWE
)
Appellant-Defendant, )
)
vs. ) No. 71A03-1206-CR-264
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Roland W. Chamblee, Judge
Cause No. 71D08-0307-FA-49
January 11, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Dejuan Lowe appeals his sentence following a guilty plea. Lowe raises two issues on
appeal but the State presents a preliminary issue that we find dispositive: whether the trial court
abused its discretion in granting Lowe’s petition for permission to file a belated notice of appeal.
Concluding that the trial court did abuse its discretion, and the appeal was therefore untimely, we
dismiss the appeal.
Facts and Procedural History
On July 22, 2003, Lowe was charged with four counts of burglary as Class B felonies,
one count of attempted burglary as a Class B felony, and one count of burglary as a Class A
felony. On July 2, 2007, a plea hearing was held and Lowe pleaded guilty to all six charges,
pursuant to an open plea agreement with the State. On July 24, 2007, a sentencing hearing was
conducted. On April 11, 2012, Lowe filed a verified petition for permission to file a belated
notice of appeal pursuant to Indiana Post-Conviction Rule 2(1),1 claiming that the trial court
never advised him of his right to appeal, and so failure to file a timely notice of appeal was not
his fault. On May 10, 2012, the trial court granted the petition, and this appeal followed.
Discussion and Decision
As a threshold matter, the State argues that the trial court abused its discretion by
granting Lowe’s petition for leave to file a belated notice of appeal, because the record shows
that Lowe was advised of his right to appeal and thus contradicts Lowe’s contention that he was
not at fault for failing to file a timely notice of appeal. We agree.
1
Post-Conviction Rule 2(1) allows a defendant to seek permission to file a belated notice of appeal, and
requires the defendant to show that:
(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.
2
Generally, 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. Russell v. State,
970 N.E.2d 156, 160 (Ind. Ct. App. 2012), trans. denied. However, if the trial court does not
hold a hearing before granting or denying a petition to file a belated notice of appeal, the
appellate court owes no deference to the trial court’s decision, and the review of the granting of
the petition is de novo. Id. Lowe filed his petition for permission to file a belated notice of
appeal on April 11, 2012 and the trial court granted the petition the following month. Neither
party suggests that a hearing was held, and our review of the record does not indicate that a
hearing was held. Therefore, we review the trial court’s grant of the petition de novo.
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
notice of appeal. Id. There are no set standards of fault or diligence, and each case turns on its
own facts. Id. The Indiana Supreme Court has held that several factors are relevant to the
defendant’s diligence and lack of fault in the delay of filing, including: 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
which contributed to the delay. Id. (citing Moshenek v. State, 868 N.E.2d 419, 423 (Ind. 2007)).
In his petition, Lowe’s only support for showing the lateness of the appeal was not his
fault is his contention that he was unaware of his right to appeal because the trial court failed to
advise him of that right. In fact, the record shows that he was informed of that right at the plea
hearing. The court, at some length, advised Lowe of the rights he would be giving up if he
pleaded guilty, including the right to have the State prove the elements of each offense beyond a
reasonable doubt, and the right to appeal the conviction. The court confirmed that Lowe
understood these rights and that he would be giving them up by pleading guilty. The court then
said to Lowe and another defendant, “I will tell you that you each have a right to appeal the
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sentence that you receive even now on your guilty pleas if you think it is illegally incorrect and
you are guaranteed the right to have a lawyer represent you even if you couldn’t afford your
own.” The record thus shows that Lowe was informed of his right to appeal his sentence, in
contradiction to his assertion in his petition.2
Conclusion
Having determined that Lowe was in fact informed of his right to appeal, and without
Lowe having put forth any other basis for the failure to file a timely notice of appeal not being
his fault, we conclude that he has failed to meet the requirement of Post-Conviction Rule
2(1)(a)(2) and thus that it was an abuse of discretion for the trial court to grant his petition. The
appeal is dismissed.
Dismissed.
MAY, J., AND PYLE, J., concur.
2
While we find this fact extremely persuasive, we also note, in consideration of the other factors set out by
the supreme court, that Lowe was twenty-nine at the time of the plea hearing, had completed at least some high
school and by his own admission could read and write okay, and had at least one prior felony conviction at the time
of the offenses underlying this appeal. On the whole, it appears that the fault for failing to timely appeal lies with
Lowe.
4