Atkins v. State, No. 92A03-0606-CR-247 (Ind. App. 12/21/2006)
| Decision Date | 21 December 2006 |
| Docket Number | No. 92A03-0606-CR-247,92A03-0606-CR-247 |
| Parties | CASEY L. ATKINS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
ANTHONY S. CHURCHWARD, Deputy Public Defender, Fort Wayne, Indiana, ATTORNEY FOR APPELLANT.
STEVE CARTER, Attorney General of Indiana, JUSTIN F. ROEBEL, Deputy Attorney General, Indianapolis, Indiana, ATTORNEYS FOR APPELLEE.
Casey Atkins appeals the twenty-year sentence he received after pleading guilty to armed robbery as a class B felony.1 We affirm.
Atkins raises one issue: whether the trial court considered and weighed improper aggravating circumstances in sentencing him, thereby violating his Sixth Amendment rights. The State responds that the court did not abuse its discretion in sentencing. Further, the State raises the following issue on cross-appeal: whether the trial court abused its discretion by granting Atkins' motion for permission to file a belated direct appeal. We address this last argument first, as it has potential jurisdictional ramifications. See Hull v. State, 839 N.E.2d 1250, 1253 n.1 (Ind. Ct. App. 2005), trans. not sought.
On April 26, 2002, the State charged Atkins with armed robbery as a class B felony, theft as a class D felony, and five counts of class A misdemeanor battery causing bodily injury. Appellant's App. at 8-11.2 On August 26, 2002, the court held a change of plea hearing, and the parties filed a plea agreement. Tr. at 7-14. Pursuant to the agreement, Atkins would plead guilty to robbery as a class B felony, the State would dismiss the six other counts, and sentencing would be left to the trial court. App. at 33-35. That day, the court granted Atkins' motion to withdraw his former plea of not guilty, took the guilty plea under advisement, ordered a pre-sentence investigation report, and scheduled a sentencing hearing for September 23, 2002. Id. at 39; Tr. at 13.
After a continuance, the court held a sentencing hearing on October 16, 2002. Tr. at 15-20. Following examination of Atkins and argument by the defense and the prosecution, the court accepted the guilty plea and entered judgment of conviction. As per the plea agreement, the State dismissed the six other charges. App. at 43. On that same date, the court issued its sentencing memorandum, which summarized the mitigating circumstances this way: "1) defendant's difficult childhood; and 2) defendant's mental health history; and 3) defendant's letter of apology[.]" Id. at 41. The aggravating circumstances were listed as: "1) defendant's 4 prior misdemeanor convictions; and 2) defendant's previous felony conviction; and 3) defendant's violation of probation and parole; and 4) significant victim impact; and 5) the use of Mace or Pepper Spray on the victims while committing the offense; and 6) defendant's educational and employment record." Id. Atkins was not advised by the court of his right to a direct appeal of his sentence.
On February 26, 2003, Atkins filed, pro se, a petition for post-conviction relief, a notice of appeal, and an affidavit of indigency. Id. at 48-51. Within his filings, Atkins raised, inter alia, sentencing/plea issues and indicated his need for appointed counsel. The court forwarded his petition to the State Public Defender, and on April 2, 2003, the assigned deputy public defender filed an appearance and a notice of present inability to investigate. Id. at 66-72. The court stayed the proceedings until the deputy public defender was able to proceed. Id. at 73. On July 10, 2003, the deputy public defender filed a motion to withdraw the pro se notice of appeal without prejudice; said motion was granted a few days later. Id. at 79-81.
On June 24, 2004, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004), which held that facts supporting an enhanced sentence must be admitted by the defendant or found by a jury. On September 30, 2004, the transcript in Atkins' case was "sent to public defender per verbal request." App. at 6. On November 9, 2004, our supreme court issued Collins v. State, 817 N.E.2d 230, 233 (Ind. 2004), in which it held that the "proper procedure for an individual who has pled guilty in an open plea to challenge the sentence imposed is to file a direct appeal or, if the time for filing a direct appeal has run, to file an appeal under [Indiana Post-Conviction Rule 2, belated notice of appeal]." Our supreme court further instructed, "the post-conviction court should have dismissed the petition for post-conviction relief for lack of jurisdiction without prejudice to any right [the defendant] may have to file a belated notice of appeal in accordance with the requirements of P-C.R. 2." Id.
On March 9, 2005, our supreme court issued Smylie v. State, 823 N.E.2d 679, 686 (Ind. 2005), cert. denied, in which it held that the "sort of facts envisioned by Blakely as necessitating a jury finding must be found by a jury under Indiana's existing sentencing laws." Smylie quoted the United States Supreme Court as follows: "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." Id. at 687 (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)).
Meanwhile, in Atkins' case, on September 28, 2005, a new deputy public defender filed a notice of substitution of counsel. App. at 6. On November 16, 2005, Atkins' new deputy public defender filed a motion to dismiss the petition for post-conviction relief without prejudice to pursue proceedings under Post-Conviction Rule 2 and requested further assistance of counsel, all of which was granted on November 18, 2005. Id. at 82-85, 88. On November 29, 2005, local counsel Anthony Churchward appeared for Atkins and filed a motion for permission to file belated notice of appeal, which was granted that day. Id. at 92-95. On December 13, 2005, Atkins, by Churchward, filed his belated notice of appeal. Id. at 96.
In its cross-appeal, the State asserts that the trial court abused its discretion by granting Atkins' motion for permission to file a belated direct appeal. The State maintains that Atkins' motion "makes only bald assertions and provides no evidence that [Atkins] was without fault for not timely filing his notice of appeal and it certainly does not provide any evidence showing how he had been diligent in pursuing a belated notice of appeal." Appellee's Br. at 7-8 (citing App. at 93). In short, the State contends that Atkins has failed to meet his burden to establish his entitlement to file a belated notice of appeal; thus, his notice of appeal was untimely.
Generally, the trial court has discretion in reviewing a petition for permission to file a belated notice of appeal, and its decision will not be disturbed unless an abuse of discretion is shown. See Beaudry v. State, 763 N.E.2d 487, 489-90 (Ind. Ct. App. 2002). However, when the trial court does not conduct a hearing before ruling on a petition to file a belated notice of appeal, and the allegations contained in the motion itself provide the only basis in support of a motion, we review the decision de novo. See Baysinger v. State, 835 N.E.2d 223, 224 (Ind. Ct. App. 2005).
Atkins did not file a reply brief or otherwise respond to the State's allegation on cross-appeal that the trial court erred in permitting him to file a belated notice of appeal. "In such a circumstance, if we find prima facie error, we may reverse." Townsend v. State, 843 N.E.2d 972, 974 (Ind. Ct. App. 2006), trans. denied. "In this context, prima facie is defined as "at first sight, on first appearance, or on the face of it." Id. Therefore, if we determine that the grant of Atkins' petition was prima facie error, we lack jurisdiction and must dismiss his appeal. See id.
Having failed to file a timely notice of appeal within thirty days as required, Atkins forfeited his right to appeal "unless sought under P-C.R. 2." See id. (citing Ind. Appellate Rule 9(A)(5)). Indiana Post-Conviction Rule 2, which permits a defendant to seek permission to file a belated notice of appeal, provides in part:
Where an eligible defendant 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.
The trial court shall consider the above factors in ruling on the petition. Any hearing on the granting of a petition for permission to file a belated notice of appeal shall be conducted according to Section 5, Rule P.C. 1.
If the trial court finds grounds, it shall permit the defendant to file the belated notice of appeal, which notice of appeal shall be treated for all purposes as if filed within the prescribed period.
If the trial court finds no grounds for permitting the filing of a belated notice of appeal, the defendant may appeal such denial by filing a notice of appeal within thirty (30) days of said denial.
Ind. Post-Conviction Rule 2(1) (emphases added). The Rule's text requires neither a formal hearing nor explicit written findings.
A petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the relief sought. See Land v. State, 640 N.E.2d 106, 108 (Ind. Ct. App. 1994), trans. denied. "Therefore, in a proper motion for a belated notice of appeal, he must demonstrate he was diligent in pursuing the appeal." Townsend, 843 N.E.2d at 974 (ci...
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