Wе 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 erroneous factual determination. Moreover, if the trial court did not advise a defendant of the right to appeal thе sentence in an “open plea,” that may well suffice to meet the lack of fault requirement under Posh-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 drovе 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 Bar-rix repeatedly with a knife, and Barrix, who was unarmed, died at the scene. Moshenek then put Barrix’s body in Bar-rix’s car and drove to a shed behind Mosh-enek’s home, where he buried the body the next morning.
Two days later the State charged Mosh-enek with murder, and the next week Moshenek filed a notice of his intent to pursue an insanity defense. The State *421 requested the death penalty several months later. On January 10, 1989, Mosh-enek 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 sentence. Mosh-enek 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 murder, 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 reasоnable doubt either of the two aggravating circumstances alleged in support of the death sentence. The trial court found two non-eligibility aggravating circumstances: (1) the victim’s 101 stab wounds indicated that the defendant was capable of “extreme 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 еmotional 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 mоtions requesting transcripts 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 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 sentencing matters. The petition did not, however, directly challenge his sentence. Moshenek requested 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, Moshe-nek’s counsel in this appeal became the fifth.
On February 3, 2005, with the post-conviction proceeding still pending, Moshe-nek filed a petition for permission to file a belated mоtion 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,
Moshenek’s petition for leave to file a belated motion to correct error addressed the diligence 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 sentence; (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,
At the hearing on the petition, Moshe-nek 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 permission to file a belated motion to correct error as required by Post-Conviction Rule 2.
The Court of Appeals reversed, finding that the trial court abused its discretion in denying Moshenek permission to seek relief under Post-Conviction Rule 2.
1
Moshenek v. State,
Post-Conviction Rule 2
Indiana PosNConviction 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 defendant; and
(b) the defendant has been diligent in requesting permission to file a belated notice 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 tо appeal a trial court’s denial of permission to file a belated notice of appeal or motion to correct error.
Davis v. State,
In
Collins v. State,
we held that the proper procedure for contesting a trial court’s sentencing decision where the trial court has exercised sentеncing discretion was a direct appeal and not a proceeding under Post-Conviction Rule 1.
The decision whether to grant permission to file a belated notice of appeal or belated motion to correct error is within the sound discretion of the trial court.
George v. State,
Because diligence and relative fault are faсt 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 wаs therefore an abuse of discretion to deny Moshenek permission to file a belated motion to appeal.
Moshenek,
The State argued that Moshenek had not addressed his sentence in any of his plеadings over the sixteen-year period. The State also pointed to a period of seven years in which Moshenek 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,
A trial court’s ruling on a petition for permission to file a belated notice of appeal under Pоst-Conviction Rule 2
*424
will be affirmed unless it was based on an error of law or a clearly erroneous factual determination (often described in shorthand as “abuse of discretion”).
See Townsend v. State,
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 PosNConvietion 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 аn “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,
As Kling held, a pre-Collins Post-Conviction Rule 1 challenge to a sentence can serve to establish diligence, but Mosh-enek’s PosNConviction 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. Moshenek testified that he had constantly informed his lawyers of his desire to challenge his sеntence 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.
Conclusion
The trial court’s denial of permission to file a belated motion to correct error is affirmed.
Notes
. The Court of Appeals refers to Moshenek's petition as a petition for leave to file a belated notice of appeal. 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 imрose the same standards of diligence and lack of fault on the part of the defendant. See P-C.R. 2(1), (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.” PC.R. 2.