*1 Cаrter, Attorney Steve General Larry NEWTON, Indiana, Stein, Kathryn Deputy W. At- Jodi General, Appellant/Defendant, torney Attorneys Appellee. DICKSON, Justice. Indiana, Appellee/Plaintiff. STATE this direct defendant appeals the trial court’s order va- No. 18S00-0804-CR-151. cating for the defendant to find that the Supreme appeal.1 Court We correctly trial court rescinded its Oct. it and struck the belated because lacked
request presented more addition, judgment. after final the de- present cogent argument fendant fails to as to the issue raisеd in this Ind. 46(A)(8)(a). Appellate Rule December possibili- was sentenced to life without the (“LWOP”) ty accordance with for the murder Christopher Coyle. For the offenses of felony conspiracy class A to commit rob- B bery felony and class criminal confine- ment, guilty without a fixed the trial court imposed forty-five sentences of and twen- ty years, respectivеly, to run consecutive to each other and the LWOP sentence. The defendant did not unsuccessfully pursue two peal but did Thereafter, post-conviction proceеdings. se, pro 9, 2007, on to file a belated notice of asserting single issue: “Whether trial court erred when Peti- totaling tioner to consecutive sentences years and consecutive to a sentence of life parole.” Appellant’s App’x without Following appointment defender, public the trial court held a Rowland, Muncie, IN, 6, 2007, Attorney heаring September L. Ross and en- Appellant. judgment deny- tered on October initially pursuant 1. This submitted to the Appeals, Indiana Court of but the Clerk of Supreme Courts diverted it to the Indiana
193 whоlly fails to of propriety for address April 9 ing the defendant’s 10, appeal. No trial court’s order of December solely as perfected within and instead focuses the merits of appeal was 9(A). by App. R. the earlier October 5 denial of required appeal, to file belated notice of an issue defendant, 15, 2007, the November On proеedurally by defaulted the defendant’s counsel, by filed a new timely appeal. failure to As to the issue that “it appeal, noting notice of subject appeal, pro- that is the of this inadvertence and mistake of trial court’s priety December 10 Ap- that a Notice of this Public Defender order, withdrawing permission and strik- manner.” Id. was not filed peаl ing the defendant’s December 3 re- granted The trial court at 1182. appeal file a belated of the October and on December quest judgment, present the defendant fails to final appeal a notice of “from the filed otherwise, any argument, cogent or as of the Delaware Circuit determination Indiana Rule quired 5, 2007.” Id. at No. 3 dated Octоber con- We therefore decline to 10, 2007, however, 1185. On December purported appeal. sider this an sponte trial court sua entered setting aside its November 30 order It is ordered that be dis- granted had missed. striking the De-
file a belated notice of The trial court
cember 3 BOEHM, J., concurs. noted that PosWDonviction SHEPARD, C.J., separate concurs with Rule it did not have the opinion. request. the Novembеr 15 Indiana permits defen- Post-Conviction SULLIVAN, J., concurs result with a be- dant to opinion. separate lated “a conviction or RUCKER, J., separate dissents with guilty.” trial sentence aftеr a opinion. permission by The defendant defen- SHEPARD, Justice, concurring. Chief disputed dant could have such denial Lest be left some concern that the there
timely appеaling, but he failed to do so. appellate legal neglect rules and have subsequent The defendant’s November 15 injustice, conspired somehow to work an belatedly fоr underly- the reader should know what the not a to “a conviction or sen- review of seeking issue is. Newton is dispute tence” but rather seeks whether his denial of the defendant’s should be 'served concur- and confinement appeal, and thus is not author- for belated rent rather life without with ized Rule PC 2. after parole murder. January counsel, notice of the Newton and fellow member filed additional University Ball Fly Gang final determina- went to State present “from the and kill someone. When intending tion of the Delaware Court No. 3 to rob Circuit (the only car they the student accosted had dated December order re- Newton shot him keys pocket change, to file a belated notice scinding permission in the of the head. appeal).” appellant’s brief back But lawyer managed negotiate hold as matter of plea agreement that dismissed the State’s law that the trial dеny court was correct to penalty request, death return for ac- it. *3 open murder cepting LWOP for and sen- pled guilty to tencing on the other felonies. The trial conspirаcy robbery, crimi- and deal,
judge approved this
and made a
nal confinement.
plea agreement
in-
bleak assessment of Newton as someone
petitioner’s
сluded
agreement
to a sen-
very young age”
who “from a
showed “sin-
parole.
tence of life without
Sentencing on
gular disregard for the law” and “complete
the other counts was left
to the trial
disregard
rights
people.”
for the
of other
court’s discretion.
Newton filed a
a
challenge
Newton has had
chance to
petition
post-conviction
relief that did
lawyer
represent-
of the
effectiveness
who
claim;
not raise a sentencing
voluntary
him and the
intelligent
ed
and
was denied in 2002.
nature of his own decisiоn.
He now seeks
to file a belat-
SULLIVAN, Justice,
concurring
appeal.
If the basis of Newton’s re-
sult.
quest had been
challenge
original
to
analysis
My
is somewhat different than
conviсtions, permission would have been
Court’s,
but I reach the same result.
because,
properly denied
since his convic-
tions
guilty plea, they
were the result of a
clear,
оpinion
As the Court’s
makes
could not be challenged
appeal.
on direct
Newton seeks to
the trial
reverse
State,
Tumulty v.
666 N.E.2d
denial
request
of his
to file a belated
(convictions resulting
from
peal.
belated
from what? From
guilty pleas
challenged
cannot be
the trial court’s
direct
denial of his
is,
only
P-
appeal.
proceedings
a belated
That
after the trial
1).
If the
court denied his
to
basis of Newton’s
file
timely
challenge
did
had been to
he
file an
his sentence for
murder, permission
prop-
from the court’s deniаl.
would have been
He then asked
erly
denied
trial court for
since the term of his
court’s denial.
sentence was fixed
The trial court concluded
it could not
power
chаllenged
that it was without
be
grant
appeal.
State,
Sholes v.
today
agrees.
and
(Ind.2008) (a plea agreement
fixed
I
gives
believe the Court
our Post-Con-
sentence preсludes a defendant from chal-
near-sighted
reading.
too
lenging
resulting
sentence
The intent
preserve
of the rule is to
belated).
timely
whether
itAs
right to appeal
any persоn
who fails to
is,
the basis of Newton’s
towas
file a
appeal through no fault of his
his sentences for
diligent
or her own and who is
confinement, the terms of which were not
ing permission to file a
appeal.
plea agreement.
fixed
While it is true that Newton
not chal-
lenging conviction or
what is at
It is true that in Collins v.
stake
right
here is the
a con- Court held that a рerson
pleads guilty
who
viction or
I
sentence and
hold P-C.R.
is entitled to contest on direct appeal the
available in such a circumstance.
merits of a trial court’s
decision
While
review the trial court’s where the
sentence is not fixed
(Ind.
denial
agreement.
of Newton’s initial
2004)
proceed. Accordingly
that the failure to file a (2) own; no fault of his or hеr requesting
that he or she was P- *4 2(1); Witt v. Collins, (citing ARMFIELD, Appellant- Thomas A. Defendant, Newton has been ing permission petitioned post-con- when he Indiana, Appellee-Plaintiff. STATE of any relief in he did not raise (Note that this his sentence. No. 29A02-0802-CR-101. split was before Collins resolved a of au- thority over whether a sentence entered Appeals Court of open plea was to be reviewed Aug. post-conviction pro- reason, I ceedings.) For that would affirm Sept. Publication Ordered trial court’s denial of Newton’s to file belated
RUCKER, Justice, dissenting. nineteen, age at the pleaded guilty attempt- robbery felony, conspiracy as a Class robbery felony, as a Class A B felony.
criminal confinement as a Class a plea agreement
Under terms of the State penalty for the death
dismissed
and Newton was sentenced to life without Merg- for the murder conviction. robbery into the con- attempted
spiracy, the trial court sentenced Newton
to a term of for con- total and criminal to be
spiracy confinement
served consecutive to the life sentence. procedural
Because combination
errors, some which rest with Newton’s
lawyers, sentence has never re- appellate scrutiny.
ceived see no harm judicial process allowing
to the this case