APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
RICHARD LEE DAVIS STEVE CARTER
Ashland, Kentucky Attorney General of Indiana
CHRISTOPHER L. LAFUSE
RICHARD C. WEBSTER
Deputy Attorneys General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
RICHARD LEE DAVIS, )
)
Appellant (Defendant), ) Cause No. 34S02-0206-PC-305
) in the Supreme Court
v. )
)
STATE OF INDIANA, ) Cause No. 34A02-0102-PC-107
) in the Court of Appeals
Appellee (Plaintiff). )
____________________________________________________________________________
__
APPEAL FROM THE HOWARD CIRCUIT COURT
The Honorable Lynn Murray, Judge
Cause No. 7026
July 19, 2002
SHEPARD, Chief Justice
Richard Lee Davis appealed the denial of his motion to correct an
erroneous sentence, but filed his notice of appeal several months after the
trial court’s ruling. The Court of Appeals permitted Davis to file this
belated notice over the State’s argument that Davis’ failure to timely file
forfeited his appeal. It lacked authority to do so.
Facts & Procedural History
Davis pled guilty to conspiracy to commit robbery, a class C
felony.[1] The trial court imposed a five-year sentence, with three years
suspended and two years to run consecutively to a sentence imposed in a
separate proceeding.
On September 5, 2000, Davis moved to correct his sentence, alleging
that he did not intelligently and knowingly enter into his plea agreement.
The trial court denied the motion on October 6th. To appeal this denial,
Davis was required to file a praecipe within thirty days. He did not.
Instead, he filed a notice of appeal on January 22, 2001.[2] Because the
appeal was not initiated within thirty days of the trial court’s ruling,
the State moved to show cause why the appeal should not be dismissed.
Davis argued that he did not receive notice of the trial court’s
ruling and then moved to file a belated appeal.[3] The motions panel of
the Court of Appeals reviewed the case and permitted Davis to pursue his
appeal.
When the case was fully briefed on the merits, the Court of Appeals
held sua sponte that Davis’ sentence was void ab initio because the trial
court lacked authority to impose consecutive sentences. Davis v. State,
No. 34A02-0102-PC-107, slip op. at 5 (Ind. Ct. App. Dec. 5, 2001). The
State sought rehearing, arguing as it had before the motions panel and in
its Appellee’s brief that the Court of Appeals lacked jurisdiction to hear
the appeal. The Court of Appeals issued a second opinion, declining to
revisit the ruling of its Motions Panel and reaffirming its authority to
extend the period of time within which Davis could file his praecipe.
Davis v. State, 764 N.E.2d 761, 761-62 (Ind. Ct. App. 2002). We granted
transfer.
The Rules on Belated Appeals
The threshold issue is thus whether the Court of Appeals could
properly extend the deadline for Davis to file his notice of appeal.
Indiana Appellate Rule 9, covering the initiation of an appeal, is
necessarily the starting point. It states:
A party initiates an appeal by filing a Notice of Appeal with the
trial court clerk within thirty (30) days after the entry of a Final
Judgment. However, if any party files a timely motion to correct
error, a Notice of Appeal must be filed within thirty (30) days after
the court’s ruling on such motion . . . .
Further on, Rule 9 provides, “Unless the Notice of Appeal is timely filed,
the right to appeal shall be forfeited except as provided by [Post-
Conviction Rule] 2.”
Davis filed his notice of appeal on January 22, 2001, well after the
thirty-day deadline had passed. He therefore forfeited his appeal, unless
Post-Conviction Rule 2(1) salvages it. Rule 2(1), in pertinent part,
states:
Where a defendant 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 . . . .
If the trial court finds no grounds for permitting the filing of a
belated notice of appeal, the defendant may appeal such denial by
filing a notice of appeal within thirty (30) days of said denial.
We have held more than once that P-C.R. 2(1) is a “vehicle for
belated direct appeals alone.” See, e.g., Greer v. State, 685 N.E.2d 700,
702 (Ind. 1997) (quoting Howard v. State, 653 N.E.2d 1389, 1390 (Ind.
1995)). It provides petitioners with a method to seek permission for
belated consideration of appeals addressing conviction, but does not permit
belated consideration of appeals of other post-judgment petitions. Howard,
653 N.E.2d at 1390. More specifically, the Court of Appeals lacks subject
matter jurisdiction over appeals other than direct appeals, unless such
appeals or petitions are timely brought. Greer, 685 N.E.2d at 703. This
contrasts with its authority on matters such as tardy briefs, for example,
which merely “subject the appeal to summary dismissal.” App. R. 45(D).
In this case, Davis appealed the denial of his motion to correct an
erroneous sentence. In State ex rel. Gordon v. Vanderburgh Circuit Court,
616 N.E.2d 8, 9 (Ind. 1993) (per curiam), we analyzed motions to correct
erroneous sentence and held that they “must be considered . . . petition[s]
for post-conviction relief.” As such, the Court of Appeals was without
authority to hear Davis’ appeal because P-C.R. 2(1) does not permit belated
appeals of motions to correct erroneous sentences.[4]
As for whether it was appropriate for the State to petition for
rehearing on the jurisdictional question originally considered by the
motions panel, petitions under Appellate Rule 54 may be based on
substantive rulings made in the course of submitting the appeal and on
those issues directly addressed by the panel hearing the appeal as finally
submitted on the merits.[5] In considering such a petition, the Court of
Appeals can grant or deny in accordance with the principles applicable to
rehearing. See Griffin v. State, 763 N.E.2d 450 (Ind. 2002) (reviewing the
nature of rehearing).
Conclusion
We vacate the opinions of the Court of Appeals and dismiss Davis’
appeal for lack of subject matter jurisdiction.
DICKSON, SULLIVAN, and BOEHM, JJ., concur.
RUCKER, J., concurs in result without separate opinion.
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[1] Ind. Code Ann. §§ 35-41-5-2, 35-42-5-1 (West 1999).
[2] Under the rules that existed in 2000, a party initiated an appeal by
filing a “praecipe” with the trial court. Ind. Appellate Rule 2 (repealed
Jan. 1, 2001). Under the new rules, the initial act is filing a “notice of
appeal,” which likewise must be filed within thirty days of the trial
court’s judgment. App. R. 9(A).
[3] The record is unclear on this matter, but even accepting Davis’
chronology of events, the initiation of his appeal was not timely. Davis,
who has been incarcerated throughout this period, asserts that he did not
receive immediate notice of the trial court’s October 6, 2000 denial of his
motion to correct erroneous sentence. (C.C.S. at 3; Appellant’s Br. at 1.)
On November 24, 2000, Davis sent a letter to the court requesting
information, and on December 7, 2000 the court sent him a “docket card”
describing the status of his motion. (C.C.S. at 3.) Davis admits
receiving this information on December 15, 2000, but his notice of appeal
was not filed until January 22, 2001, outside of the thirty-day window for
initiating an appeal. (Appellant’s Praecipe/Notice of Appeal at 1, 2.)
See App. R. 9.
[4] As for Davis’ claim about consecutive sentences, we recently observed
in Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001), that defendants who
plead guilty to achieve favorable outcomes “give up a plethora of
substantive claims and procedural rights,” such as challenges to
convictions that would otherwise constitute double jeopardy. Striking a
favorable bargain including a consecutive sentence the court might
otherwise not have the ability to impose falls within this category.
[5] As one commentator recently noted:
[R]ecent opinions have demonstrated an appropriate reluctance on the
part of the court of appeals to overrule orders already decided by its
rotating motions panels. Nevertheless, these decisions do not hold
that the authoring court is absolutely precluded from reconsidering
issues previously decided on a motion from a party. Indeed, such a
holding would be contrary to the court’s traditional practice. If a
party fails to obtain requested relief from a pre-briefing motion to
dismiss (assuming the motion has colorable merit), the best practice
is to raise that issue again in that party’s brief on the merits.
Similarly, the issue should be fair game for a petition to transfer.
Professionally responsible advocacy would dictate that the prior
unsuccessful motion also be brought to the appellate court’s
attention.
Douglas E. Cressler, A Year of Transition in Appellate Practice, 35 Ind. L.
Rev. (forthcoming 2002) (emphasis in original).