Court of Appeals Case No. 18A-CR-1362
COURT OF APPEALS OF INDIANA
October 29, 2018
Najam, Judge.
Appeal from the Huntington Superior Court; The Honorable Jennifer E. Newton, Judge; Trial Court Cause No. 35D01-1609-PC-10
ATTORNEYS FOR APPELLANT
Stephen T. Owens
Public Defender of Indiana
Mark S. Koselke
Deputy Public Defender
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Supervising Deputy Attorney General
Indianapolis, Indiana
Najam, Judge.
Statement of the Case
[1] Eran D. Haddock appeals the trial court‘s denial of his petition for permission to file a belated notice of appeal. Haddock presents two issues for our review, which we consolidate and restate as whether the trial court erred when it denied his petition.
[2] We reverse and remand with instructions.
Facts and Procedural History
[3] On March 13, 2015, the State charged Haddock with two counts of dealing in cocaine or a narcotic drug, as Level 3 felonies. Thereafter, on January 5, 2016, the State and Haddock entered into a plea agreement. Pursuant to the terms of the plea agreement, Haddock agreed to plead guilty to one count of dealing in a narcotic drug, as a Level 3 felony. In the plea agreement, Haddock provided a factual basis for his guilty plea. In particular, Haddock admitted that he had sold seven hydromorphone pills to a confidential informant and that the offense took place “in the physical presence of a child less than eighteen (18) years of age, when I knew the child was present and might be able to see or hear the offense.” Appellant‘s App. Vol. II at 36. In exchange for Haddock‘s guilty plea, the State agreed to dismiss the second count.
[4] Haddock‘s plea agreement included a provision that stated: “I understand that I have a right to appeal my sentence. As a condition of entering into this plea agreement, I hereby knowingly and voluntarily waive my right to appeal my sentence so long as the Judge sentences me within the terms of my plea agreement.” Id. The plea agreement left sentencing to the discretion of the trial court.
[5] The trial court held a hearing on Haddock‘s guilty plea. At the beginning of the hearing, the court played a video that informed Haddock of his rights. Specifically, the court advised Haddock that, if he were to go to trial and be found guilty, he would have the right to appeal that conviction. But, by entering a plea of guilty, Haddock was “giving up [his] right to appeal.” Id. at 47. Haddock also testified that he had gone over his guilty plea and the waiver of rights with his attorney and that he understood those documents.
[6] Thereafter, on February 2, 2016, the trial court held a sentencing hearing. At the conclusion of the hearing, the trial court stated: “The criminal history shows two (2) other felony offenses, eight (8) prior[] misdemeanor offenses, five (5) petitions to revoke. The factual basis for this particular offense specifically includes that it took place in the physical presence of a child less than eighteen (18) years of age.” Id. at 63. The court then sentenced Haddock to an aggravated sentence of fourteen years, with twelve years executed and two years suspended to probation.
[7] On September 12, 2016, Haddock, pro se, filed a petition for post-conviction relief in which he alleged that he had not received effective assistance of trial counsel. Thereafter, on September 29, a Deputy Public Defender filed an appearance on Haddock‘s behalf. But, on the same day, that attorney filed a notice in which he indicated that, due to his caseload, he could not currently investigate Haddock‘s claims. As a result, the court stayed the post-conviction proceedings.
[8] Then, on January 8, 2018, a second Deputy Public Defender, Mark Koselke, filed an appearance on Haddock‘s behalf. On April 30, Haddock, with counsel, filed a petition for permission to file a belated
Discussion and Decision
[9] Haddock appeals the trial court‘s denial of his petition for permission to file a belated notice of appeal.
An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if[:]
(1) The defendant failed to file a timely notice of appeal;
(2) The failure to file a timely notice of appeal was not due to the fault of the defendant; and
(3) The defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.
[10] “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.” Moshenek v. State, 868 N.E.2d 419, 422-23 (Ind. 2007). Usually, “[t]he decision whether to grant permission to file a belated notice of appeal is within the sound discretion of the trial court.” Id. at 422. But where, as here, the trial court did not hold a hearing and ruled on a paper record, we will review the denial of the petition de novo. See Baysinger v. State, 835 N.E.2d 223, 224 (Ind. Ct. App. 2005).
[11] Haddock contends that the trial court erred when it denied his request for a belated notice of appeal because his failure to timely file a notice of appeal was not due to any fault of his own and because he
Eligibility
[12]
[13] It is well settled that a defendant can waive his right to appeal a sentence. See Crider v. State, 984 N.E.2d 618, 623 (Ind. 2013). However, a defendant‘s waiver of appellate rights is only valid if the sentence is imposed in accordance with the law. See id. at 625. Thus, if a sentence imposed is illegal, and the defendant does not specifically agree to the sentence, the waiver-of-appeal provision is invalid. See id.
[14] Under the State‘s theory on appeal, the only way to determine whether Haddock is an eligible defendant under
[15] At this stage in the proceedings, we are unwilling to place the burden on Haddock to argue the merits of his putative belated appeal. Rather, we hold that Haddock would have had the right to raise in a timely appeal the issue of whether his sentence is illegal. E.g., id. Accordingly, as that is the issue Haddock seeks to raise in his putative belated appeal, we hold that Haddock is an eligible defendant pursuant to
[16] Because we hold that Haddock is eligible under
[17] The Indiana Supreme Court has previously stated that “[t]here 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
[18] Here, Haddock signed a plea agreement that indicated that he waived his right to appeal his sentence. And, Haddock indicated at his guilty plea hearing that he had carefully gone over the plea agreement with his attorney. Accordingly, Haddock believed that he had waived his right to appeal his sentence. Further, at his sentencing hearing, the trial court did not advise Haddock of his right to appeal an illegal sentence. And it is well settled that “[t]he fact that a trial court did not advise defendant about this right can establish that the defendant was without fault in the delay of filing a timely appeal.” Id. at 424.
[19] However, the State contends that “Haddock has failed to show that the failure to timely file was not his fault” because Haddock could have consulted with his trial counsel “to determine whether the sentencing was ‘within the terms of the plea agreement.‘” Appellee‘s Br. at 11. We acknowledge the fact that Haddock was represented by an attorney at his sentencing hearing. But that attorney never informed Haddock of his right to appeal an illegal sentence. Indeed, it was that same attorney who advised Haddock of the rights he had waived when he signed the plea agreement. Contrary to the State‘s assertion, we will not fault Haddock for not knowing of his right to appeal an illegal sentence simply because he was represented by an attorney at his sentencing hearing.
[20] As discussed above, Haddock believed he had waived the right to appeal his sentence because of the waiver provision in his plea agreement and because neither the trial court nor his trial counsel informed Haddock that he had the right to appeal an illegal sentence. And it was not until two years later, when Haddock met with his new attorney on February 27, 2018, that Haddock learned that he had the option to appeal his sentence on the ground that the sentence was illegal. Accordingly, the trial court erred when it concluded that Haddock had not shown that his failure to timely file a notice of appeal was not due to his own fault.
Diligence
[21] We next address whether Haddock has established that he was diligent in requesting permission to file a belated notice of appeal. There are several factors to consider in order to determine if a defendant was diligent in seeking a belated appeal. See Moshenek, 868 N.E.2d at 424. Those factors include the overall passage of time, the extent to which the defendant was aware of the relevant facts, and the degree to which delays are attributable to other parties. Id.
[22] Here, just over two years passed between the date the trial court sentenced Haddock and the date he filed his petition for permission to file a belated notice of appeal. But, as discussed above, he did not become aware of the fact that he could appeal his sentence as an illegal sentence until he met with Koselke in February 2018. Then, once Haddock learned that he could appeal his sentence, only two months passed before he filed his petition. Because Haddock filed his petition within a reasonable time after he had learned of his right to appeal his sentence, we hold that the trial court erred when it concluded that Haddock had not met his burden to show that he was diligent in requesting permission to file a belated notice of appeal.2
[23] In sum, Haddock is an “eligible defendant” pursuant to
[24] Reversed and remanded with instructions.
Crone, J., and Pyle, J., concur.