ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Teresa D. Harper Steve Carter
Bloomington, Indiana Attorney General of Indiana
Kelly A. Miklos
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
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No. 42S04-0706-PC-244
DAVID L. MOSHENEK,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Knox Superior Court, No. 42D01-8808-CF-026
The Honorable Timothy Crowley, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 42A04-0511-PC-686
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June 20, 2007
Boehm, Justice.
We hold that a trial court’s ruling on a petition for permission to seek relief under Post-
Conviction Rule 2 should be affirmed unless it was based on an error of law or a clearly errone-
ous factual determination. Moreover, if the trial court did not advise a defendant of the right to
appeal the sentence in an “open plea,” that may well suffice to meet the lack of fault requirement
under Post-Conviction Rule 2 depending on other evidence, but the defendant must make some
additional showing to establish diligence.
Factual and Procedural Background
On August 28, 1988, twenty-one year old David Moshenek followed Anthony Barrix as
Barrix drove from the house of Heidi Sutton, whom Moshenek had dated for over two years.
Moshenek forced Barrix’s car off the road, and the two started to fight. Ultimately Moshenek
stabbed Barrix repeatedly with a knife, and Barrix, who was unarmed, died at the scene. Mosh-
enek then put Barrix’s body in Barrix’s car and drove to a shed behind Moshenek’s home, where
he buried the body the next morning.
Two days later the State charged Moshenek with murder, and the next week Moshenek
filed a notice of his intent to pursue an insanity defense. The State requested the death penalty
several months later. On January 10, 1989, Moshenek orally moved to enter a plea of guilty of
murder. At the plea hearing, the trial court advised Moshenek that he would give up his right to
appeal his conviction by pleading guilty, but there was no reference to the right to appeal his sen-
tence. Moshenek then admitted to stabbing Barrix “repeatedly” in an encounter over the woman
Moshenek had once dated. The trial court accepted Moshenek’s plea, found him guilty of mur-
der, and entered a judgment of conviction.
On January 31, 1989, the trial court held a sentencing hearing and found that the State
had failed to prove beyond a reasonable doubt either of the two aggravating circumstances al-
leged in support of the death sentence. The trial court found two non-eligibility aggravating cir-
cumstances: (1) the victim’s 101 stab wounds indicated that the defendant was capable of “ex-
treme and heinous violence” and (2) the defendant’s capacity for extreme and deadly violence
from a “seemingly quite [sic], serious, hardworking, studious, and polite individual” indicated
that the public needed protection from him for as long as possible. The trial court found two
mitigating circumstances—the defendant’s lack of criminal history and the emotional strain that
could have weakened the defendant’s ability to control his behavior. The trial court found that
the aggravating circumstances significantly outweighed the mitigators and sentenced Moshenek
to the maximum term of sixty years.
In the year following his sentencing, Moshenek filed two pro se motions requesting tran-
scripts of the proceedings from the trial court and stating his intent to seek post-conviction relief.
The transcripts were supplied in February of 1991. On January 14, 1994, Moshenek filed a pro
2
se petition for post-conviction relief under Post-Conviction Rule 1. He asserted four grounds for
relief, including a claim that his counsel was ineffective for failing to properly investigate sen-
tencing matters. The petition did not, however, directly challenge his sentence. Moshenek re-
quested that a public defender represent him, and over the next three years, four deputy public
defenders filed appearances for Moshenek in the post-conviction proceedings. On November 23,
1998, Moshenek’s counsel in this appeal became the fifth.
On February 3, 2005, with the post-conviction proceeding still pending, Moshenek filed a
petition for permission to file a belated motion to correct error under Post-Conviction Rule 2.
We assume this represented an effort to invoke the limits on aggravated sentences imposed by
Blakely v. Washington, 542 U.S. 296 (2004). As we hold in Gutermuth v. State, No. 10S01-
0608-CR-306, ___ N.E.2d ___ (Ind. June 20, 2007), also decided today, Blakely is not applica-
ble to Moshenek’s 1991 conviction and sentence. But for our purposes today, the issue is only
whether Moshenek met the requirements of diligence and lack of fault in presenting this claim
under Post-Conviction Rule 2.
Moshenek’s petition for leave to file a belated motion to correct error addressed the dili-
gence and fault issues by alleging, among other things, that (1) the trial court did not advise him
of the right to appeal his sentence; (2) he had always desired to challenge his conviction and sen-
tence; (3) he had filed a pro se petition for post-conviction relief in 1994; (4) he had been diligent
in the pursuit of relief of any errors in his sentence; (5) any delay was “occasioned by counsel’s
other responsibilities”; and (6) Collins v. State, 817 N.E.2d 230 (Ind. 2004) recently made clear
that the proper vehicle for raising a sentencing issue was a direct appeal and not a post-
conviction proceeding.
At the hearing on the petition, Moshenek testified that he had obtained the transcripts
with the intent to attack both his conviction and his sentence in post-conviction relief. He also
testified that he had never filed any document challenging his sentence because he relied on his
various lawyers, to whom he had “always” expressed a desire to challenge his sentence. The
trial court denied the petition, finding that Moshenek had not been diligent in requesting permis-
sion to file a belated motion to correct error as required by Post-Conviction Rule 2.
3
The Court of Appeals reversed, finding that the trial court abused its discretion in deny-
ing Moshenek permission to seek relief under Post-Conviction Rule 2. 1 Moshenek v. State, 851
N.E.2d 339 (Ind. Ct. App. 2006). The State seeks transfer, which is granted by order concurrent
with this opinion.
Post-Conviction Rule 2
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 defendant 2 convicted after a trial or plea of guilty fails to file a
timely notice of appeal, a 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 de-
fendant; and
(b) the defendant has been diligent in requesting permission to file a belated no-
tice of appeal under this rule
It includes the same requirements of diligence and lack of fault for a belated motion to correct
error. P-C.R. 2(2). 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. Davis v.
State, 771 N.E.2d 647, 649 (Ind. 2002).
In Collins v. State, we held that the proper procedure for contesting a trial court’s sen-
tencing decision where the trial court has exercised sentencing discretion was a direct appeal and
not a proceeding under Post-Conviction Rule 1. 817 N.E.2d at 231-32. We also noted that an
individual who failed to file a timely notice of appeal could petition for permission to file an ap-
1
The Court of Appeals refers to Moshenek’s petition as a petition for leave to file a belated notice of ap-
peal. Moshenek’s petition was a petition to file a belated motion to correct error. For our purposes, there
is no difference between the two. Both types of petitions arise under Post-Conviction Rule 2, and both
impose the same standards of diligence and lack of fault on the part of the defendant. See P-C.R. 2(1),
(2).
2
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 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.
4
peal under Post-Conviction Rule 2 if the individual met the standards set forth in the Rule. Id. at
233.
The decision whether to grant permission to file a belated notice of appeal or belated mo-
tion to correct error is within the sound discretion of the trial court. George v. State, 862 N.E.2d
260, 264 (Ind. Ct. App. 2006); see also Whitmire v. State, 498 N.E.2d 380, 381 (Ind. 1986). 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 ap-
peal. Witt v. State, No. 45S00-0608-CR-283, 2007 WL 1684697, at *2 (Ind. June 12, 2007);
Dobeski v. State, 275 Ind. 662, 665, 419 N.E.2d 753, 755 (1981) (citing Zellers v. State, 271 Ind.
22, 389 N.E.2d 299 (1979)). There are no set standards of fault or diligence, and each case turns
on its own facts. Land v. State, 640 N.E.2d 106, 108 (Ind. Ct. App. 1994). 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 le-
gal system, whether the defendant was informed of his appellate rights, and whether he commit-
ted an act or omission which contributed to the delay.” Id. (citing Tredway v. State, 579 N.E.2d
88, 90 (Ind. Ct. App. 1991)).
Because diligence and relative fault are fact sensitive, we give substantial deference to
the trial court’s ruling. The Court of Appeals acknowledged that deference but concluded that
Moshenek had established by a preponderance of the evidence that he had been diligent in his
effort to challenge the sentence. It was therefore an abuse of discretion to deny Moshenek per-
mission to file a belated motion to appeal. Moshenek, 851 N.E.2d at 342, 344. Sixteen years
elapsed between Moshenek’s conviction and his filing for relief under Post-Conviction Rule 2.
In evaluating whether or not Moshenek was diligent and without fault in this delay, the Court of
Appeals noted Moshenek’s testimony that he had consistently informed his counsel of his desire
to challenge his sentence and that prior to Collins he had believed that any challenge to his sen-
tence must be raised in his pending post-conviction proceeding, which was in the hands of his
counsel. Moshenek, 851 N.E.2d at 343. The court also pointed out that Moshenek was advised
by the trial court that by pleading guilty he was giving up his right to appeal his conviction but
he was never advised by the trial court of his right to appeal his sentence. Id. at 343.
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The State argued that Moshenek had not addressed his sentence in any of his pleadings
over the sixteen-year period. The State also pointed to a period of seven years in which Mosh-
enek did nothing to seek permission to file a belated appeal. Id. The Court of Appeals found
that language from our decision in Kling v. State, 837 N.E.2d 502 (Ind. 2005) addressed those
arguments. In Kling, we held that a challenge to a sentence that had been presented in a Post-
Conviction Rule 1 proceeding before Collins was sufficient to establish that the petitioner was
diligent. We also held that “the time spent by the State Public Defender investigating a claim”
was not the fault of the defendant. Id. at 508. The Court of Appeals finally pointed to its recent
decision in Baysinger v. State, 835 N.E.2d 223 (Ind. Ct. App. 2005), where the court found that a
defendant was entitled to file a belated notice of appeal even though the defendant had made no
effort to challenge his sentence for four years. Moshenek, 851 N.E.2d at 344. In Baysinger, the
trial court had told the defendant that he was giving up “most” of his grounds for appeal but did
not inform him of his right to appeal his sentence. 835 N.E.2d at 226. The defendant also as-
serted that his trial counsel had not informed him of his right to appeal his sentence. Id. The
court found that these two facts established that the defendant was without fault in failing to file
a timely notice of appeal. Id. It also determined that the defendant was diligent in seeking per-
mission to file a belated appeal because he had filed for permission shortly after we handed down
the Collins decision. Id.
A trial court’s ruling on a petition for permission to file a belated notice of appeal under
Post-Conviction Rule 2 will be affirmed unless it was based on an error of law or a clearly erro-
neous factual determination (often described in shorthand as “abuse of discretion”). See Town-
send v. State, 843 N.E.2d 972, 974 (Ind. Ct. App. 2006). The trial court is in a better position to
weigh evidence, assess the credibility of witnesses, and draw inferences. Fisher v. State, 810
N.E.2d 674, 679 (Ind. 2004). In Baysinger, the trial court did not hold a hearing before denying
the defendant’s petition for permission to file a belated notice of appeal. 835 N.E.2d at 224. The
Court of Appeals owed no deference to the trial court’s factual determinations because they were
based on a paper record. See Houser v. State, 678 N.E.2d 95, 98 (Ind. 1997). In the present
case, however, the trial court did hold a hearing on Moshenek’s petition for permission to file a
belated motion to correct error.
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There is substantial room for debate as to what constitutes diligence and lack of fault on
the part of the defendant as those terms appear in Post-Conviction Rule 2. Several points may be
made, however. In order to meet the requirements of Post-Conviction Rule 2, it is not sufficient
to point only to the fact that the trial court did not advise the defendant of the right to appeal a
sentence after an “open plea.” The right to appeal a sentence is not among those rights of which
a trial court is required to inform a defendant before accepting a guilty plea. Ind. Code § 35-35-
1-2 (2004); see also Garcia v. State, 466 N.E.2d 33, 34 (Ind. 1984). The fact that a trial court did
not advise a defendant about this right can establish that the defendant was without fault in the
delay of filing a timely appeal. However, a defendant still must establish diligence. Several fac-
tors are relevant to this inquiry. Among them are the overall passage of time; the extent to which
the defendant was aware of relevant facts; and the degree to which delays are attributable to
other parties, as, in Moshenek’s case, the preparation of transcripts. When the overall time
stretches into decades, a belated appeal becomes particularly problematic because of the risk that
significant problems will be encountered in any retrial due to unavailable evidence or witnesses
or failing memories.
As Kling held, a pre-Collins Post-Conviction Rule 1 challenge to a sentence can serve to
establish diligence, but Moshenek’s Post-Conviction Rule 1 petition did not attack his sentence.
The trial court did not abuse its discretion in determining that Moshenek had not been diligent.
Moshenek waited three years from the receipt of his transcripts before filing his initial petition
for post-conviction relief. When he did file, his petition did not challenge his sentence. Mosh-
enek testified that he had constantly informed his lawyers of his desire to challenge his sentence
and had relied on his counsel to make that claim. But he raised no challenge to his sentence in
the three years before he requested a public defender. It was not clearly erroneous for the trial
court to determine that an eleven-year span without any effort to raise a sentencing claim showed
lack of diligence in pursuing a belated appeal.
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Conclusion
The trial court’s denial of permission to file a belated motion to correct error is affirmed.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
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