Somchanh Amphonephong v. State of Indiana
2015 Ind. App. LEXIS 422
| Ind. Ct. App. | 2015Background
- In 2011 Amphonephong was charged with three counts of child molesting based on touching and sexual intercourse allegations by two 4–5 year‑old girls; jury convicted him on all counts in June 2012.
- At sentencing (July 2012) the court told Amphonephong it would appoint appellate counsel after he said he wanted to appeal, but the court never appointed counsel and no timely notice of appeal was filed.
- Eighteen months later Amphonephong attempted to file a pro se petition for permission to file a belated notice of appeal (initially filed with the Court of Appeals clerk, then properly filed in trial court).
- The trial court sent a letter about appointment of counsel, received no reply, and granted the petition without an evidentiary hearing, appointing the public defender to perfect the appeal.
- The State cross‑appealed the trial court’s grant of leave for a belated appeal, arguing the trial court failed to make express findings and that Amphonephong did not show diligence; Amphonephong separately appealed the sufficiency of evidence for the Count III (Class C) conviction.
- The Court of Appeals affirmed both the trial court’s allowance of a belated appeal and the sufficiency of the evidence sustaining the Count III conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Amphonephong) | Held |
|---|---|---|---|
| Whether the trial court erred by granting permission to file a belated notice of appeal | Trial court failed to make express findings re: fault and diligence under P-C Rule 2(1); remand for hearing required | He was not at fault (court failed to appoint counsel) and he acted diligently once he learned no appeal was filed and despite limited English literacy | Affirmed: trial court did not abuse discretion; no mandatory express‑finding requirement in Rule 2(1); facts supported finding of lack of fault and sufficient diligence (de novo review because no hearing) |
| Whether evidence was sufficient to support Count III (Class C child molesting) | Jury verdict should be upheld; victim’s testimony and attendant circumstances support knowing touching and sexual intent | Argues evidence insufficient because victim said defendant was asleep, so he could not have acted knowingly or with sexual intent | Affirmed: victim’s testimony (uncorroborated is sufficient) and reasonable inferences from repeated touching supported knowing conduct and intent; appellate court will not reweigh credibility |
Key Cases Cited
- Moshenek v. State, 868 N.E.2d 419 (Ind. 2007) (defendant bears burden to prove lack of fault and diligence for belated appeal; factors for evaluating diligence)
- Drane v. State, 867 N.E.2d 144 (Ind. 2007) (standard of review and sufficiency jurisprudence; defer to jury on credibility)
- N.L. v. State, 989 N.E.2d 773 (Ind. 2013) (explains requirement of express findings in a different statutory context; distinguished by court here)
- Louallen v. State, 778 N.E.2d 794 (Ind. 2002) (clarifies culpability element for child molesting statute is knowingly or intentionally)
- Carter v. State, 754 N.E.2d 877 (Ind. 2001) (holding that uncorroborated testimony of a molested child can sustain conviction)