Blackmon v. State

• Decision Date: 21 June 1983
• Docket Number: No. 2-982A290,2-982A290
• Citation: 450 N.E.2d 104
• Parties: Juan Cardell BLACKMON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 104

450 N.E.2d 104

Juan Cardell BLACKMON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-982A290.

Court of Appeals of Indiana,

Second District.

June 21, 1983.

Susan K. Carpenter, Public Defender of Ind., Melanie C. Conour, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Juan Cardell Blackmon (Blackmon) appeals as contrary to law the trial court's summary denial of his petition under Ind. Rules of Procedure, Post-Conviction Rule 2, Sec. 1 for permission to file a belated motion to correct error.

We reverse and remand for proceedings not inconsistent with this opinion.

Following a plea of not guilty and trial by the court, Blackmon was convicted on February 12, 1980 of forgery under I.C. 35-43-5-2 (Burns Code Ed., Repl.1979) and theft under I.C. 35-43-4-2 (Burns Code Ed., Repl.1979). A presentence report was ordered and on March 4, 1980 the trial judge sentenced Blackmon to two (2), two year concurrent terms. During the sentencing hearing, at which Blackmon was represented by a public defender, the trial judge volunteered the following reasons for giving Blackmon the minimum sentences: Blackmon's role in the incident was somewhat passive; he saved the court's time by waiving trial by jury after his first trial resulted in a hung jury; and he improved himself academically by earning a G.E.D. certificate during his imprisonment for a previously committed crime.

Immediately after pronouncing sentence and volunteering his reasons for giving Blackmon "a pretty good break" on his sentences the trial judge, as mandated by Ind. Rules of Procedure, Criminal Rule 11, undertook to explain to Blackmon his appeal rights stating:

"If you wish to appeal the sentence you must have your lawyer file a Motion to Correct Errors within 60 days of today's date. Do you understand that?

* * * And if the Court rules on the Motion to Correct Errors and rules against you, then you have 30 days from that date to praecipe for the transcript of the record which indicates your intention to appeal. Do you understand that?

* * *

If you don't have a lawyer, the Court has a duty to appoint an attorney for you for appeal purposes, if you can't afford to hire a lawyer or don't have funds or assets of your own. Do you understand that?"

Record at 46-47 (emphasis added). After Blackmon responded affirmatively to the above questions, the trial judge inquired if he desired to appeal his sentence. Blackmon replied, "No, Your Honor. I think the sentence is just." Record at 47 (emphasis added).

The record shows no action by Blackmon until June 9, 1982 when, with the assistance of a public defender, Blackmon filed a Post-Conviction Rule 2, Sec. 1 petition seeking permission to file a belated motion to correct error. On June 11, 1982 the trial court summarily denied his petition, finding, "More than 2 years having elapsed since defendant was sentenced at which time defendant was fully advised of his appeal rights, this petition is denied." Record at 51. Blackmon appeals that denial.

Post-Conviction Rule 2, Sec. 1 is available to any defendant convicted after trial or guilty plea if the following three requirements are met:

"(a) no timely and adequate motion to correct error was filed for defendant;

(b) the failure to file a timely motion to correct error was not due to the fault of defendant; and

(c) the defendant has been diligent in requesting permission to file a belated motion to correct error under this rule."

If the trial court finds such grounds, ¹ the court shall permit the defendant to file a belated motion to correct error. The motion is treated for all purposes as if filed within the prescribed period. P.C.R. 2, Sec. 1.

In his petition for permission to file a belated appeal, Blackmon contends no timely and adequate motion to correct errors was filed. He also contends the failure to file a timely motion to correct error was not his fault because he was uneducated in the law, unaware of the means to perfect an appeal, and although the trial judge informed him he could appeal his sentence, he was not informed he could appeal the judgments against him. He further alleges that once he learned of the possibility of pursuing a belated appeal, he was diligent in seeking permission to file his belated motion to correct error.

The state acknowledges no timely and adequate motion to correct error was filed but defends the trial court's denial of Blackmon's petition claiming Blackmon was properly informed of his right to an appeal and therefore was at fault for not filing a timely motion to correct error. Further, the state argues, even assuming he was not at fault, Blackmon failed to show diligence in seeking permission to file his belated motion.

We hold the trial judge abused his discretion in denying Blackmon's petition without a hearing even though the record indicates Blackmon did not request a hearing to produce evidence supporting the allegations in his petition. The trial court erred in summarily denying Blackmon permission to file a belated motion to correct error, finding, as a matter of law, "More than two years having elasped since defendant was sentenced at which time defendant was fully advised of his appeal rights, this petition is denied." Record at 51.

We are cognizant a petitioner for P.C.R. 2 relief is not entitled to an evidentiary hearing in every case. Compare P.C.R. 1, Sec. 5 with P.C.R. 2. See Zellers v. State, (1977) 266 Ind. 111, 361 N.E.2d 143, judgment affirmed after remand, (1979) Ind., 389 N.E.2d 299; William v. State (1976) 168 Ind.App. 107, 341 N.E.2d 524, 525 n. 3. Our Supreme Court has held, "a defendant's failure to request a hearing may be deemed a waiver of any error in the trial court's refusal to hold such a hearing." Adams v. State, (1979) Ind., 270 Ind. 406, 386 N.E.2d 657, 662 (citing Kindle v. State, (1974) 161 Ind.App. 14, 24, 313 N.E.2d 721, 727).

However, the defendant's petition in Adams, unlike the defendant's petition in Zellers and unlike Blackmon's petition here, was either itself insufficient to show the presence of one of the three P.C.R. 2, Sec. 1 requirements or the record negated the petition's allegation of one of the requirements. ² See Zeller v. State, 361 N.E.2d at 144 (explaining William v. State, (1976) Ind.App., 168 Ind.App. 107, 341 N.E.2d 524 without citing Kindle v. State, 161 Ind.App. 14, 313 N.E.2d 721).

Thus, close scrutiny of the foregoing cases reveals a P.C.R. 2, Sec. 1 petitioner's failure to request a hearing may be deemed a waiver of the trial court's refusal to hold a hearing when the petition for permission to file a belated motion to correct error fails to allege the existence of the three (3) prerequisites for the grant of relief. In addition, the record of the proceedings up to the time of the petition may negate one or more of the P.C.R. 2 petitioner's alleged prerequisites to relief. For example, an allegation that a timely and adequate motion to correct error was not filed may be negated by the existence of such a motion in the record. Adams v. State, 270 Ind. 406, 386 N.E.2d 657. An allegation of lack of fault based upon lack of knowledge of the right of appeal may be negated by the record of sentencing which shows compliance with the C.R. 11 mandate to inform the convicted person of his right to appeal the judgment of conviction against him. ³ In such situations, as with a facially inadequate petition, the defendant-petitioner's failure to request a hearing may be deemed a waiver of the trial court's refusal to hold a hearing.

However, with a facially sufficient petition and a record which fails to negate at least one of the prerequisites to relief under P.C.R. 2, Sec. 1, an evidentiary hearing must be held to allow the defendant the opportunity to present evidence to support his petition and prove his entitlement to P.C.R. 2 relief by a preponderance of the evidence. Zellers v. State, 361 N.E.2d at 144.

In this case, Blackmon's petition was facially sufficient in that it alleged the three prerequisites for relief under P.C.R. 2 Sec. 1. Furthermore, it is undisputed he did not file a timely and adequate motion to correct errors. Additionally, for the reason discussed below, an examination of the record does not negate Blackmon's allegation of lack of fault, the second requirement, but in fact reveals Blackmon was not adequately advised of his right to appeal the judgments of conviction against him.

Any person convicted of a criminal offense in Indiana may, as a matter of statutory and constitutional right, appeal the judgment against him.

"An appeal to the Supreme Court or to the Appellate Court [Court of Appeals] may be taken by the defendant as a matter of right, from any judgment in a criminal action against him, in the manner and in the cases prescribed herein; and, upon the appeal, any decision of the court or intermediate order made in the progress of the case may be reviewed."

I.C. 35-1-47-1 (Burns Code Ed. Repl.1979); See also Ind. Const. Art. 7, Sec. 4, Sec. 6 (amended 1970). ⁴

Pursuant to C.R. 11, immediately following sentencing in all felony cases the trial judge must advise the defendant:

"(1) that he is entitled to file a motion to correct errors which must be done within sixty (60) days of the sentencing; (2) that he is entitled to take an appeal from the judgment, but if he wishes to do so, he must first file a timely motion to correct errors and he must file a praecipe designating what is to be included in the record of the proceedings on appeal within thirty (30) days of the court's ruling on the Motion to Correct Errors or the right to appeal will be forfeited; (3) that if he is financially unable to employ an attorney, the court will appoint counsel for the purpose of filing the motion to correct errors and for taking an appeal." ⁵

In contrast, by the...