MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Dec 21 2016, 8:50 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Gregory F. Zoeller
Public Defender of Indiana Attorney General of Indiana
Jonathan O. Chenoweth Tyler G. Banks
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Honeycutt, December 21, 2016
Appellant-Defendant, Court of Appeals Case No. 38A02-
1608-CR-1809
v. Appeal from the Jay Circuit Court
The Honorable Brian D.
State of Indiana, Hutchison, Judge
Appellee-Plaintiff. Trial Court Cause No.
38C01-1304-FC-7
Bradford, Judge.
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Case Summary
[1] In April of 2013, Appellant-Defendant Joseph Honeycutt was charged with
Class C felony forgery, Class D felony perjury, and Class D felony identity
deception. At some point after being charged but before trial, Honeycutt
absconded to Tennessee from Indiana. Honeycutt was tried in absentia after
he failed to appear for his November 14, 2013 jury trial. At the conclusion of
trial, the jury found Honeycutt guilty as charged and the trial court sentenced
him to an aggregate term of eleven years. Honeycutt was arrested in Tennessee
on December 12, 2013, and was soon thereafter transported back to Indiana.
Honeycutt had been returned to Indiana by December 30, 2013, at which time
he appeared before the trial court.
[2] On June 13, 2016, Honeycutt filed a petition seeking permission to file a belated
appeal. Following a hearing, the trial court denied Honeycutt’s petition.
Honeycutt challenges this denial on appeal. Concluding that the trial court
acted within its discretion in denying Honeycutt’s petition, we affirm.
Facts and Procedural History
[3] On April 10, 2013, Appellee-Plaintiff the State of Indiana (“the State”) charged
Honeycutt with Class C felony forgery, Class D felony perjury, and Class D
felony identity deception. Honeycutt, who was initially represented by counsel,
entered into a plea agreement, pled guilty, and proceeded to sentencing.
During this initial sentencing hearing, which was conducted on September 6,
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2013, Honeycutt requested permission to withdraw his guilty plea. Honeycutt
indicated that he wished to part ways with his then-counsel and to hire new
counsel. The trial court granted Honeycutt’s request and scheduled the matter
for a jury trial on November 14, 2013.
[4] At some point before November 14, 2013, Honeycutt absconded to Tennessee.
Honeycutt was tried in absentia after he failed to appear for his November 14,
2013 jury trial. When later asked why he did not appear for trial, Honeycutt
indicated that he did not attend because he had been unable to retain a new
attorney to represent him and also because he was scared of being convicted.
[5] At the conclusion of trial, the jury found Honeycutt guilty as charged, after
which the trial court sentenced him to an aggregate term of eleven years. The
trial court’s sentencing order clearly set forth the applicable time limitations for
appealing the conviction and sentence. Also at the time of sentencing, the trial
court issued a warrant for Honeycutt’s arrest.
[6] Honeycutt was arrested in Tennessee on December 12, 2013. He was soon
thereafter transported back to Jay County.
[7] On December 30, 2013, Honeycutt appeared before the trial court for a hearing
related to the amount of credit time he was entitled to receive. Honeycutt made
no mention of appealing his conviction or sentence during this hearing.
Honeycutt subsequently filed motions to modify his sentence in August of 2014,
October of 2015, and December of 2015. Each of these motions was denied.
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[8] On June 13, 2016, Honeycutt filed a petition seeking permission to file a belated
appeal. The trial court conducted a hearing on Honeycutt’s petition on July 18,
2016, after which it denied Honeycutt’s petition. In denying Honeycutt’s
petition, the trial court stated the following:
3. Defendant’s failure to file said appeal was due in large part
to the fact that he absconded from the jurisdiction of the Court to
avoid trial, and was tried and sentenced in absentia.
4. Defendant has not been diligent in requesting to file a
belated appeal. He has filed numerous motions since being
rearrested and has been represented by counsel during this
period. However, he did not seek the instant relief for
approximately 2 ½ years after his re-arrest.
Appellant’s App. p. 35.
Discussion and Decision
[9] Honeycutt challenges the trial court’s denial of his request for permission to file
a belated appeal.
Indiana Post-Conviction Rule 2(1) provides a defendant an
opportunity to petition the trial court for permission to file a
belated notice of appeal. It provides[:]
Where an eligible defendant1 convicted after a trial or
plea of guilty fails to file a timely notice of appeal, a
1
An “eligible defendant” is defined under the rule as “a defendant who, but for the defendant's
failure to do so timely, would have the right to challenge on direct appeal a conviction or
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petition for permission to file a belated notice of
appeal for appeal of the conviction may be filed with
the trial court where:
(a) the failure to file a timely notice of
appeal was not due to the fault of the
defendant; and
(b) the defendant has been diligent in
requesting permission to file a belated
notice of appeal under this rule[.]
It includes the same requirements of diligence and
lack of fault for a belated motion to correct error.
Post-Conviction Rule 2 also gives a defendant the
right to appeal a trial court’s denial of permission to
file a belated notice of appeal or motion to correct
error.
Moshenek v. State, 868 N.E.2d 419, 422 (Ind. 2007) (footnote in original, internal
citations omitted).
[10] 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. 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 motion to appeal. There are no set standards of
fault or diligence, and each case turns on its own facts. Several
factors are relevant to the defendant’s diligence and lack of fault
in the delay of filing. These include the defendant’s level of
awareness of his procedural remedy, age, education, familiarity
with the legal system, whether the defendant was informed of his
sentence after a trial or plea of guilty by filing a notice of appeal, filing a motion to correct error,
or pursuing an appeal.” P-C.R. 2.
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appellate rights, and whether he committed an act or omission
which contributed to the delay.
Because diligence and relative fault are fact sensitive, we give
substantial deference to the trial court’s ruling.
Id. at 422-23 (Ind. 2007) (internal quotation and citations omitted).
[11] In the instant matter, the trial court determined that Honeycutt was at fault for
his failure to file a timely appeal, noting that he absconded from the jurisdiction
of the trial court in an effort to avoid trial. Honeycutt indicated that he
intentionally absconded to Tennessee because he was having difficulty retaining
new counsel and was afraid of being convicted. The trial court also found that
Honeycutt had not be diligent in requesting permission to file a belated appeal.
In making this finding, the trial court noted that although Honeycutt filed a
number of motions with the trial court, he waited approximately two-and-a-half
years after being arrested and returned to Indiana before filing the instant
request.
[12] Honeycutt acknowledges that his flight from Indiana was his own fault.
However, he argues that he was not at fault for what he claims was a delay in
returning him to Indiana and providing him with notice of his conviction. The
record reflects that Honeycutt was arrested in Tennessee on December 12,
2013. He was returned to Indiana by no later than December 30, 2013, on
which date he appeared before the trial court for a hearing regarding the
appropriate amount of credit time he was entitled to receive in connection with
his incarceration for his underlying convictions and sentence. As such, it is
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reasonable to infer that Honeycutt had been made aware of his convictions and
resulting sentence by no later than December 30, 2013.
[13] Honeycutt did not file a petition requesting permission to file a belated appeal
until June 13, 2016. Even assuming that there was indeed some delay in
returning Honeycutt to Indiana and informing him of his convictions and
sentence, Honeycutt has provided no explanation why he did not seek
permission for approximately two-and-a-half years. As such, we cannot say
that the trial court abused its discretion in finding that the fault for failing to file
an appeal falls, at least in large part, on Honeycutt.
[14] Honeycutt also challenges the trial court’s determination that he has not been
diligent in requesting permission to file a belated appeal. In raising this
challenge, Honeycutt argues that he was not aware that he could request
permission to file a belated appeal until a short time before he did so on June
13, 2016. The trial court, however, appears not to have believed Honeycutt’s
claim that he was not aware of any procedure for requesting permission to file a
belated appeal until a short time before he did so on June 13, 2016. Again,
because a finding relating to diligence is fact-sensitive and the trial court, acting
as the trier of fact, was in the best position to judge Honeycutt’s credibility, we
will defer to the trial court’s determination in this regard. See Moshenek, 868
N.E.2d at 423.
[15] In finding that Honeycutt had not been diligent, the trial court noted that since
his re-arrest in December of 2013, Honeycutt has filed a number of motions
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while being represented by counsel. It seems unreasonable to believe that the
counsel who represented Honeycutt in the intervening two-and-a-half years
after Honeycutt’s arrest were not aware or did not advise Honeycutt of the
available procedures for requesting a belated appeal. Honeycutt also admitted
that he went to the law library in his penal facility “as often as [he] could go” in
order to research potential avenues of relief. Tr. p. 18. Upon review, we
cannot say that the trial court’s determination regarding diligence amounted to
an abuse of its discretion.
Conclusion
[16] In sum, we conclude the trial court did not abuse its discretion in denying
Honeycutt’s request for permission to file a belated appeal.
[17] The judgment of the trial court is affirmed.
Vaidik, C.J., and Brown, J., concur.
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