ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLANT
Bruce E. Andis Steve Carter
Indianapolis, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court FILED
Feb 21 2008, 3:22 pm
_________________________________
CLERK
of the supreme court,
No. 49S04-0802-CR-86 court of appeals and
tax court
DEMOND HUGHES, Appellant (Defendant),
v.
STATE OF INDIANA, Appellee (Plaintiff).
_________________________________
Appeal from the Marion Superior Court, No. 49G04-9502-CF-16419
The Honorable Patricia J. Gifford, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0611-CR-640
_________________________________
February 21, 2008
Dickson, Justice.
Defendant Demond Hughes brings this belated appeal to challenge the appropriateness of
the presumptive concurrent sentences, five years of which were suspended, following his guilty
pleas to Felony Murder and class A misdemeanor Reckless Possession of a Handgun. The State
contends on cross-appeal that permission to file the belated appeal was erroneously granted.
The Court of Appeals granted relief to the defendant and remanded for resentencing. Hughes v.
State, 872 N.E.2d 180 (Ind. Ct. App. 2007). We grant transfer, thereby vacating the decision of
the Court of Appeals, and now affirm the trial court on other grounds.
The present case arises out of the 1995 killing of Melvin Reedus. Pursuant to the defen-
dant's plea agreement, which did not call for any specific sentence, the trial court in January
1996, intending to use the statutory presumptive sentence as a beginning point, sentenced the de-
fendant to a term of fifty years for Felony Murder and one year for Reckless Possession of a
Handgun, to be served concurrently. The aggregate fifty-year sentence was then suspended five
years, for a net executed sentence of forty-five years. In 2000, the defendant successfully ob-
tained post-conviction relief reducing his sentence to forty years (and retaining the five year sus-
pension) because the correct presumptive sentence for the date of the offense was forty, not fifty
years.
In June 2006, the defendant requested appointed counsel to pursue proceedings under
Indiana Post-Conviction Rule 2, and in October 2006, almost eleven years after his conviction
and initial sentence, he filed a request to commence the present belated appeal, asserting that
"upon learning of his appellate rights via Collins v. State, he seeks to have the review of the ap-
propriateness of his sentence." Appellant's App'x at 171. The trial court, granting his motion
the day it was filed, stated:
And taking notice of its own record and file in this case, being duly advised in the
premises now finds the failure to file a Notice of Appeal within thirty days of the date of
sentencing is not the fault of the defendant, who has been diligent in seeking relief in his
case and upon being advised of his right to appeal his sentence has exercised that right
and demonstrated diligence in requesting an appeal of his sentence.
Id. at 173. The State nevertheless argues that the defendant failed to establish the P-C. R. 2 dili-
gence prerequisite required for permission to bring a belated appeal, and the defendant responds
that the State, having failed to raise this objection at the trial court and having failed to file a mo-
tion to dismiss the appeal, should not now be permitted to raise the issue by cross-appeal.
Consideration of these issues, however, is obviated because of the superseding impedi-
ment of procedural default. At the guilty plea hearing, the trial court advised the defendant that
"by pleading guilty you give up the right to a direct appeal." R. at 5. In his plea agreement,
however, the defendant acknowledged his "right to pursue post-conviction relief." Appellant's
App'x at 89. In accord with prevailing law at the time, recourse to post-conviction relief was an
2
appropriate method for challenging the validity of a sentence imposed after a guilty plea. Collins
v. State, 817 N.E.2d 230, 233 (Ind. 2004). The defendant availed himself of this opportunity and
challenged his sentence in post-conviction relief proceedings which requested that his sentence
be reduced or a new sentencing hearing held because the trial court relied on an improper aggra-
vating circumstance and failed to adequately regard certain mitigating factors. Appellant's App'x
at 138-39. Granting relief on other grounds (that the applicable presumptive sentence was forty,
not fifty, years), the post-conviction court did not address these claims, and the defendant ac-
cepted the outcome by failing to appeal the decision. The defendant's present belated appeal,
however, seeks to relitigate this issue. It asserts a single claim that the trial court erroneously
sentenced him to the presumptive term for Felony Murder "when the court identified at least
three mitigating factors and the only aggravating factor was an invalid application of the 'nature
and circumstances of the crime' factor." Appellant's Br. at 1.
Issues presented, or available but not presented, at one stage in the proceedings are for-
feited and cannot be brought in a subsequent stage. State v. Holmes, 728 N.E.2d 164, 168 (Ind.
2000), cert. denied, 532 U.S. 1067 (2001). Holmes involved a post-conviction relief proceeding
where a claim was advanced that had been available but not presented on direct appeal. This
same principle applies equally to claims presented on post-conviction and subsequently sought to
be relitigated on belated appeal. Repetitious litigation of essentially the same dispute is not per-
mitted. Id.; Sweeney v. State, 704 N.E.2d 86, 94 (Ind. 1998), cert. denied, 527 U.S. 1035
(1999). The State did not raise the issue of procedural default as an affirmative defense in op-
posing the request for permission to file a belated appeal, nor does it present this issue by cross-
appeal. But if a defendant has procedurally defaulted, then an appellate court can raise the issue
sua sponte. Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002).
Because the defendant may not by belated appeal relitigate his sentence challenge previ-
ously presented in his post-conviction relief petition, we find his claim barred by procedural de-
fault. We affirm the sentence imposed by the trial court following the defendant's post-
conviction relief proceeding.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
3