Amy Morinskey v. State of Indiana (mem. dec.), 79A04-1604-CR-981

Background

In 2012 Morinskey pled guilty in Cause FA-2 to an amended Class B felony dealing in methamphetamine and was sentenced to 12 years (8 executed, 4 suspended to probation). One suspended year was to be served on community corrections.
After violations, the State filed a Motion to Commit (probation revocation) in September 2015; a separate 2015 cause (F5-24) charged Morinskey with new methamphetamine and related offenses arising from an October 2015 arrest.
On December 29, 2015 Morinskey entered a plea agreement resolving both causes: she admitted the motion to commit in FA-2 (resulting in revocation of one year of probation to be served in DOC) and pled guilty in F5-24 to Level 5 possession and Class A misdemeanor false informing; sentencing was left to the court.
The trial court imposed sentence and signed orders on February 19, 2016; the court informed Morinskey she had 30 days to file a notice of appeal (making March 21, 2016 the deadline).
Morinskey sent a letter to the trial court on March 9, 2016 expressing intent to appeal; the court treated it as a notice of appeal and appointed counsel. An amended notice of appeal was filed in the trial court on April 4 and with the Court of Appeals on April 29, 2016 — 39 days after the February 19 orders.
The State moved to dismiss for untimely filing. The Court of Appeals considered whether to restore the forfeited appeal right and dismissed the appeal for lack of timely notice of appeal, finding no extraordinarily compelling reasons to excuse the forfeiture.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appeal should be dismissed for failure to timely file a notice of appeal	State: Morinskey filed her notice of appeal late and thus forfeited the right to appeal under App. R. 9(A)	Morinskey: she attempted to appeal (March 9 letter) and filed an amended notice; court treated letter as notice and appointed counsel	Court: Appeal dismissed — notice was filed 39 days late, resulting in forfeiture under App. R. 9(A); no extraordinarily compelling reasons to restore the right
Whether an appellate court should restore forfeited appeal rights where appellant missed the deadline	State: No compelling reason shown to restore forfeiture	Morinskey: implied reliance on trial-court treatment of her letter and appointment of counsel as timely initiation	Court: Restoration reserved for "extraordinarily compelling reasons" (e.g., In re Adoption of O.R.); none exist here, so no restoration
Availability of Post-Conviction Rule 2 (PCR 2) relief for sentencing challenge	State: Morinskey may seek permission to file a belated notice of appeal under PCR 2 for the sentencing claim in F5-24	Morinskey: did not pursue PCR 2 before appellate court	Court: Noted PCR 2 provides avenue to seek belated appeal of conviction/sentence; therefore diminished need to excuse forfeiture here
Availability of PCR 2 relief for probation-revocation appeal	State: Probation-revocation orders are not eligible for belated appeals under PCR 2	Morinskey: sought to appeal probation revocation placement	Court: Agreed PCR 2 cannot provide belated appeal for probation revocation; but still declined to restore rights because no extraordinary reasons existed

Key Cases Cited

Amphonephong v. State, 32 N.E.3d 825 (Ind. Ct. App. 2015) (defines prima facie review on appeal when appellant fails to respond)
Townsend v. State, 843 N.E.2d 972 (Ind. Ct. App. 2006) (discusses appellate review when appellee asserts procedural defect)
In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014) (permits restoration of a forfeited appellate right only for extraordinarily compelling reasons)
Dawson v. State, 938 N.E.2d 841 (Ind. Ct. App. 2010) (post-conviction rule relief not available for belated appeals from probation-revocation orders)
Blinn v. Dyer, 19 N.E.3d 821 (Ind. Ct. App. 2014) (court may waive Appellate Rule 9(A) forfeiture but is not required to do so)