Beaudry v. State, 03A01-0105-CR-169.
| Decision Date | 27 February 2002 |
| Docket Number | No. 03A01-0105-CR-169.,03A01-0105-CR-169. |
| Citation | 763 N.E.2d 487 |
| Parties | Gregory BEAUDRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
David M. Henn, Stowers Weddle & Henn, P.C., Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Gregory Beaudry ("Beaudry") appeals the trial court's denial of his petition to file a belated appeal.
We affirm.
Whether the trial court abused its discretion in denying Beaudry's Petition For Leave To File Belated Praecipe For Appeal.
The facts most favorable to the judgment reveal that on July 28, 1990, Beaudry went to a local bar to discover whether the woman with whom he was having an extramarital affair was cheating on him. When he confronted her at the bar, she attempted to leave. Beaudry gave chase and assaulted her. Beaudry forced her into his car and confined her there at gunpoint. The victim escaped by jumping out of the moving car.
On October 8, 1990, Beaudry was charged in an amended information with criminal confinement as a class D felony and battery as a class C felony. On May 20, 1991, Beaudry executed a plea agreement with the State. He agreed to plead guilty to criminal confinement as a class D felony, the State would dismiss the remaining charge, and sentencing would be left to the trial court's discretion.
On June 18, 1991, Beaudry's sentencing hearing was held. Before sentencing, the trial court stated that it believed Beaudry to be "an intimidating and dominating" man with an explosive temper. Tr. at 78. The trial court also stated it believed Beaudry should not have access to a gun, and that Beaudry's conviction should be entered as a felony "because this is not something you should ... be able to sweep under the door and walk away from...." Tr. at 79. Because the victim was going to have a scar, the trial court felt that Beaudry should have a "scar on [his] record." Sentencing Tr. at 79. The trial court then sentenced Beaudry to a term of one-and-one-half years, suspended, with two weeks to be executed, a term of probation for one-and-one-half years, payment of $885 in restitution to the victim, a psychological evaluation, and a $5,000 fine.
On March 23, 1992, Beaudry filed a petition to modify his sentence pursuant to Ind.Code § 35-38-1-17. Beaudry requested that the court reduce his felony conviction to a misdemeanor and reduce his fine. He was concerned that the felony conviction would prevent his continued employment as an assistant manager at K-Mart. After hearing evidence, the trial court stated that because Beaudry was no longer incarcerated, it was unaware of any statutory or case law allowing it to reduce the felony conviction to a misdemeanor; Beaudry's attorney was given the opportunity to submit additional authority and the matter was taken under advisement. On May 14, 1992, the trial court denied Beaudry's petition.
Eight years later, Beaudry filed a motion to modify his judgment of conviction on March 21, 2000. In his motion, Beaudry asserted that he had understood that he would be sentenced to a class A misdemeanor under the alternative misdemeanor sentencing statute. Beaudry requested that the trial court reduce his sentence to a misdemeanor because his felony conviction would adversely affect his ability to obtain a license as a pharmacy technician.
On May 3, 2000, a hearing was held. After hearing evidence, the trial court took the matter under advisement. On May 4, 2000, the trial court found the following: (1) at the guilty plea hearing, Beaudry was advised of the possibility of being sentenced to a class A misdemeanor; (2) that there was no agreement concerning sentencing; (3) that Beaudry indicated that no other promises were made to him; (4) that the State specifically requested conviction as a class D felony; and (5) that Beaudry did not object to the State's request. As a result, the trial court denied Beaudry's motion.
On February 7, 2001, Beaudry filed a petition for leave to file a belated appeal, and a hearing was held on April 3, 2001. At the hearing, Beaudry's counsel argued that at sentencing the trial court had improperly told Beaudry that if he pled guilty he would not be able to appeal his sentence. In addition, counsel argued that Beaudry had hired attorney Nancy Broyles ("Broyles") in June 1992 and was under the impression that she had reached an agreement with the State to reduce his felony conviction to a misdemeanor. Beaudry's counsel argued that these factors account for his delay in filing for a belated appeal. On April 4, 2001, the trial court denied his petition.
Beaudry appeals the trial court's denial of his petition to file a belated appeal. Specifically, Beaudry argues that the trial court improperly advised him that because he was pleading guilty, he was not entitled to appeal his conviction or sentence.
Indiana Post Conviction Rule 2(1) reads as follows:
Where a 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 motion.
Beaudry has the burden of proving his grounds for relief by a preponderance of the evidence. Tolson v. State, 665 N.E.2d 939 (Ind.Ct.App.1996).
Deciding whether the defendant is responsible for the delay is within the trial court's discretion. A defendant must be without fault in the delay of filing. There are no set standards defining delay or diligence; each case must be decided on its own facts. Factors affecting the determination include the defendant's level of awareness of his procedural remedy, age, education, familiarity with the legal system, whether the defendant was informed of his...
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Moffitt v. State
...conviction on direct appeal; post-conviction relief remains as the proper vehicle for challenging the guilty plea." Beaudry v. State, 763 N.E.2d 487, 490 (Ind.Ct.App.2002). On review of a guilty plea, we look at all of the evidence before the post-conviction court. Hendrickson v. State, 660......
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Moffitt v. State
...conviction on direct appeal; post-conviction relief remains as the proper vehicle for challenging the guilty plea." Beaudry v. State, 763 N.E.2d 487, 490 (Ind. Ct. App. 2002). On review of a guilty plea, we look at all of the evidence before the post-conviction court. Hendrickson v. State, ......
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Jackson v. State
...court abused its discretion in denying him leave to file a belated notice of appeal." Appellee's Brief at 3. Citing Beaudry v. State, 763 N.E.2d 487 (Ind.Ct.App.2002), the State observes that bald assertions in briefs and motions are not evidence and concludes, therefore, that Jackson has "......
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Bowling v. State, No. 70A01-0602-PC-51 (Ind. App. 9/8/2006)
...was informed of his appellate rights, and whether he committed an act or omission that contributed to the delay. Beaudry v. State, 763 N.E.2d 487, 489-90 (Ind. Ct. App. 2002). In this case, Bowling filed a petition for a belated appeal on April 21, 2005, and the supplemental petition that h......