MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 31 2018, 9:29 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
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
Juan Duarte-Lopez Curtis T. Hill, Jr.
Miami Correctional Facility Attorney General of Indiana
Bunker Hill, Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Juan Duarte-Lopez, July 31, 2018
Appellant-Defendant/Cross-Appellee, Court of Appeals Case No.
20A04-1712-CR-2897
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Michael A.
Appellee-Plaintiff/Cross-Appellant Christofeno, Judge
Trial Court Cause No.
20C01-0808-FA-38
Crone, Judge.
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Case Summary
[1] Juan Duarte-Lopez, pro se, appeals the trial court’s denial of his petition for
sentence modification. The State cross-appeals, arguing that Lopez failed to file
a timely notice of appeal and thus forfeited the right to appeal. We agree with
the State and therefore dismiss.
Facts and Procedural History
[2] On July 15, 2009, Lopez pled guilty via plea agreement to class A felony
dealing in cocaine. On August 11, 2009, the trial court accepted Lopez’s plea
and sentenced him to thirty-two years executed.
[3] On September 19, 2017, Lopez filed a pro se petition for sentence modification.
On October 9, 2017, the trial court denied the motion but ordered the
Department of Correction (“DOC”) to file a progress report and noted that it
might reconsider its initial denial. On October 30, 2017, the trial court
reaffirmed its initial denial of Lopez’s motion after reviewing the DOC progress
report, and the judgment was noted in the chronological case summary
(“CCS”) that same day. On November 3, 2017, Lopez filed a motion to
reconsider, which the trial court denied on November 27. Lopez filed his
notice of appeal on December 4, 2017.
Discussion and Decision
[4] Lopez brings this appeal pro se, and we note that “pro se litigants are held to
the same legal standards as licensed attorneys.” Basic v. Amouri, 58 N.E.3d 980,
Court of Appeals of Indiana | Memorandum Decision 20A04-1712-CR-2897 | July 31, 2018 Page 2 of 3
983 (Ind. Ct. App. 2016). On cross-appeal, the State raises an issue that we find
dispositive: whether Lopez timely filed his notice of appeal. “A party initiates
an appeal by conventionally filing a Notice of Appeal with the Clerk [of the
Indiana Supreme Court, Court of Appeals and Tax Court] within thirty (30)
days after the entry of a Final Judgment is noted in the Chronological Case
Summary.” Ind. Appellate Rule 9(A)(1). “Unless the Notice of Appeal is
timely filed, the right to appeal shall be forfeited except as provided by [Post-
Conviction Rule] 2[,]” which does not apply here. Ind. Appellate Rule 9(A)(5).
[5] Here, Lopez filed the petition for sentence modification on September 19, 2017.
The trial court denied this motion on October 9, 2017, and later reaffirmed its
denial on October 30. The denial was noted in the CCS that same day.
Assuming arguendo that October 30 was the date of the final judgment, Lopez
did not file his notice of appeal until Monday, December 4, 2017, five days past
the deadline imposed by the Indiana Appellate Rules. 1 Thus, Lopez forfeited
his right to appeal the final judgment.2 Accordingly, we dismiss the appeal.
[6] Dismissed.
Bailey, J., and Brown, J., concur.
1
“[A] motion to reconsider does not toll the time period within which an appellant must file a notice of
appeal.” Citizens Indus. Grp. v. Heartland Gas Pipeline, LLC, 856 N.E.2d 734, 737 (Ind. Ct. App. 2006), trans.
denied (2007).
2
Upon forfeiture, the right to appeal may be restored if extraordinarily compelling reasons are present. In re
Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). Lopez offers no such reasons in his reply brief.
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