MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 21 2019, 8:19 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Jay M. Lee Caryn N. Szyper
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Turner, May 21, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-1998
v. Appeal from the Orange Circuit
Court
State of Indiana, The Honorable Steven L. Owen
Appellee-Respondent Trial Court Cause No.
59C01-1510-PC-907
59C01-1510-PC-908
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 1 of 9
[1] David Turner appeals the denial of his Indiana Post Conviction Rule 2 motion
to file a belated notice of appeal. Turner wishes to file the belated notice of
appeal in order to argue the trial court improperly denied his motion to
withdraw guilty pleas to dealing in cocaine as a Class B felony 1 and dealing in
methamphetamine as a Class B felony. 2 We affirm.
Facts and Procedural History
[2] On November 10, 2014, Turner agreed to plead guilty to Class B felony dealing
in methamphetamine in Cause No. 59C01-1403-FB-212 (“FB-212”) and Class
B felony dealing in cocaine in Cause No. 59C01-1112-FB-79 (“FB-79”). The
agreement called for an aggregate sentence of sixteen years to be served in the
Indiana Department of Correction, eight years on each count to be served
consecutively. In exchange, the State agreed to dismiss five remaining counts
in FB-212, five remaining counts in FB-79, charges against Turner in six other
cases, and a pending petition to revoke probation.
[3] At the change of plea hearing, the trial court placed Turner under oath. Turner
acknowledged he conferred with his attorneys prior to signing the plea
agreement. Turner acknowledged he knew he had a right to a full and complete
trial in front of a jury and he was choosing to resolve the matter through a
1
Ind. Code § 35-48-4-1(a)(2).
2
Ind. Code § 35-48-4-1.1(a)(1).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 2 of 9
negotiated agreement. Turner testified he committed the crimes, and he denied
being treated for any mental illness or suffering from any mental or emotional
disability. The trial court advised Turner that, if he proceeded with trial and
was found guilty, he would have a right to appeal his conviction. Turner
acknowledged he understood that right and that he was giving up that right by
agreeing to plead guilty.
[4] The trial court also advised Turner that he had the right to be represented by
counsel both at trial and on appeal. The trial court noted Turner had been
represented by five different attorneys and asked Turner if his current
representation forced him to do anything he did not want to do. Turner stated
that they had not. The trial court asked Turner whether he was satisfied with
the representation he received from his attorneys, whether they had been good
attorneys for him, and Turner replied “[v]ery much so, yes sir.” (Appellant
Am. Supp. App. Vol. II at 20.) Turner acknowledged that neither he nor his
family or friends had been offered anything or received any promises besides
what was contained in the plea agreement. Also, Turner denied that he had
been forced or threatened into entering the plea agreement. The trial court then
allowed Turner to plead guilty to Class B felony dealing in cocaine and Class B
felony dealing in methamphetamine.
[5] On January 8, 2015, the date Turner was scheduled to be sentenced, he filed a
Verified Motion to Withdraw Guilty Plea. Therein, Turner asserted “his plea
was involuntary because he was nervous and not in his right mind at the time
the plea was made” and “his plea was involuntary because it was improperly
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induced by promises.” (Id. at 49.) The trial court addressed Turner’s motion at
the sentencing hearing. The trial court read into the record portions of the
transcript from the change of plea hearing and allowed Turner to present
argument on his motion. Turner argued he pled guilty because a promise had
been made related to the release of the money he posted for bail. The Sheriff of
Orange County testified about the status of Turner’s bond. The State opposed
Turner’s Motion to Withdraw Guilty Plea and noted Turner “has some sort of
buyer[’]s remorse at best and at worst he is just trying to gain [sic] the system.”
(Id. at 143-144.) The trial court denied Turner’s Verified Motion to Withdraw
Guilty Plea, sentenced him in accordance with the plea agreement, and granted
the motions of Turner’s counsel to withdraw their appearances. The trial court
noted “the denial is a final and appealable order, no just cause for delay. This is
a final and appealable sentence.” (Id. at 147.)
[6] Turner did not file a notice of appeal within thirty days of the trial court’s denial
of his motion to withdraw guilty plea. Turner filed a pro se Petition for Post-
Conviction Relief in July 2015. The trial court denied Turner’s Petition but
appointed the public defender’s office to review and consider his Petition. The
public defender’s office appeared on Turner’s behalf and filed a Verified Motion
to Correct Error asserting the trial court erred in denying Turner’s Petition
before the public defender had the opportunity to consult with Turner and
amend the Petition. The trial court granted the Motion to Correct Error and
reinstated Turner’s Petition. Turner subsequently filed a Verified Motion for
Permission to File a Belated Notice of Appeal in July 2018, which the trial
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court denied without holding a hearing and in an order containing no findings
or conclusions.
Discussion and Decision
[7] Generally, we will not reverse a trial court’s decision to deny permission to file
a belated notice of appeal unless there is an abuse of discretion. Townsend v.
State, 843 N.E.2d 972, 974 (Ind. Ct. App. 2006), trans. denied. However, “when
the allegations contained in the motion itself provide the only basis in support
of a motion, we review the decision de novo.” Id. Therefore, as the trial court
denied Turner’s motion without hearing, we review this matter de novo. See id.
[8] The Indiana Appellate Rules give a litigant thirty days to initiate an appeal of a
final judgment. Ind. Appellate Rule 9(A)(1). A criminal defendant who does
not file an appeal within that timeframe may seek permission from the trial
court to file a belated appeal pursuant to Indiana Post-Conviction Rule 2. Ind.
App. R. 9(A)(5). Post-Conviction Rule 2(1) provides that a trial court shall
permit the defendant to file a belated notice of appeal if the defendant
demonstrates:
(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.
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A defendant is required to make each showing by a preponderance of the
evidence. Amphonephong v. State, 32 N.E.3d 825, 830 (Ind. Ct. App. 2015).
There are no set standards to determine whether a defendant has been diligent
in pursuing permission to file a belated notice of appeal. Id. We look to “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 [that]
contributed to the delay.” Id. (internal quotation marks omitted).
[9] Turner argues it was not his fault that he failed to timely file a notice of appeal
because the trial court did not adequately explain his appellate rights or describe
the process by which he might perfect his rights in regard to the denial of his
motion to withdraw his guilty plea. Turner acknowledges he was advised of his
right to appeal, but he argues the trial court erred by advising Turner of his
appeal right deep within the sentencing statement, by not advising Turner of the
process to perfect an appeal, and by dismissing his court appointed trial
counsel. Notably, Turner does not cite any case law to support the proposition
that the notice he received was inadequate.
[10] In Jackson v. State, we reversed and remanded for hearing on a motion to file
belated notice of appeal when the limited record before us made it apparent the
trial court failed to advise the defendant of his right to appeal his sentence and
expressly advised him he could not challenge his conviction or sentence on
direct appeal. 853 N.E.2d 138, 141 (Ind. Ct. App. 2006). In contrast to Jackson,
the record in this case demonstrates Turner was advised of his right to appeal
Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 6 of 9
the denial of his motion to withdraw guilty plea. (Appellant Am. Supp. App.
Vol. II at 147.) Turner has not demonstrated the timing of the statement is
relevant to our analysis.
[11] Turner also argues he was diligent in requesting permission to file a belated
notice of appeal because he filed a pro se petition for post-conviction relief
within six months and any further delay should not be attributable to him, even
though the motion to file a belated appeal was filed three and a half years after
he was sentenced. However, our Indiana Supreme Court has held that a
petition under Post-Conviction Rule 2 would have been unsuccessful when the
defendant testified that he had read and understood the plea agreement, which
stated the defendant retained the right to directly appeal his sentence, the
defendant failed to timely appeal his sentence, and the defendant had
considerable prior experience with the criminal justice system. Hill v. State, 960
N.E.2d 141, 150 (Ind. 2012), reh’g denied.
[12] Like the defendant in Hill, Turner was notified regarding his appellate rights
and had numerous past encounters with the legal system. The trial court
notified Turner at the sentencing hearing that he could appeal the denial of his
motion to withdraw guilty plea. Additionally, Turner is a middle-aged adult
male with an extensive criminal history. He was born in 1971. Turner
accumulated six misdemeanor convictions between 1989 and 1991, and he
received his first felony conviction for Class D felony theft in 1992. Turner
continued to pursue a criminal lifestyle, attaining fifteen additional
misdemeanor and five additional felony convictions between 1992 and 2005.
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Thus, he has some familiarity with the operation of the legal system and should
be aware of the importance of timely initiating an appeal. Therefore,
considering all these circumstances, we cannot say Turner was diligent in
requesting permission to file a belated notice of appeal. See Witt v. State, 867
N.E.2d 1279, 1282 (Ind. 2007) (holding defendant was not diligent in
requesting permission to file a belated notice of appeal when request came nine
and a half years after sentencing).
[13] Neither does the record indicate the trial court erred in denying Turner’s
motion to withdraw his guilty plea. The denial of a motion to withdraw a
guilty plea will be reversed only if the trial court abused its discretion in denying
the motion. Jefferies v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012), trans.
denied. “In determining whether a trial court has abused its discretion in
denying a motion to withdraw a guilty plea, we examine the statements made
by the defendant at the guilty plea hearing to decide whether the plea was
offered ‘freely and knowingly.’” Id. (quoting Brightman v. State, 758 N.E.2d 41,
44 (Ind. 2001)).
[14] Here, the record demonstrates Turner’s statements at the change of plea hearing
were offered freely and knowingly. Prior to entry of his plea, Turner testified he
was satisfied with his representation, no promises had been made to him that
were not memorialized in the plea agreement, and he was not suffering from
any mental or emotional disability. Turner answered the trial court’s questions
at the change of plea hearing directly and without equivocation. Thus, there is
no evidence that the trial court abused its discretion in denying Turner’s motion
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to withdraw his guilty plea. See Coomer v. State, 652 N.E.2d 60, 63 (Ind. 1995)
(holding trial court was not required to grant motion to withdraw guilty plea
considering defendant’s clear testimony, prior to entry of plea, that he was not
pressured into pleading guilty).
Conclusion
[15] Turner has failed to demonstrate he was not at fault for failing to timely file a
notice of appeal and he was diligent in filing his motion for belated appeal.
Neither does the record suggest the trial court abused its discretion by denying
Turner’s motion to withdraw his guilty plea. Therefore, we affirm the trial
court’s denial of his motion.
[16] Affirmed.
Baker, J., and Tavitas, J., concur.
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