Dawson v. State
| Decision Date | 17 December 2010 |
| Docket Number | No. 49A02-1001-CR-155.,49A02-1001-CR-155. |
| Citation | 938 N.E.2d 841 |
| Parties | Edward DAWSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ann L. Goodwin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Edward Dawson appeals the sanction imposed following the revocation of his probation; the State cross-appeals on jurisdictional grounds.
We dismiss.
The dispositive issue is whether the trial court erred when it granted Dawson leave to file a belated notice of appeal of the probation revocation order.
On December 1, 2008, Dawson pleaded guilty to one count of Conspiracy to Commit Robbery, a Class B felony, and one count of Carrying a Handgun without a License, a Class A misdemeanor. The trial court imposed an aggregate sentence of eight years, all suspended, with three years probation.
On April 23, 2009, the State filed a Notice of Probation Violation. At the probation revocation hearing, Dawson admitted the violation. On May 1, 2009, the trial court revoked Dawson's probation and ordered him to serve six years in the Department of Correction.
On January 6, 2010, Dawson sought permission to file a belated appeal of the probation revocation order. The trial court granted the request "outright." (Tr. 11.) Thereafter, Dawson successfully moved for a hearing to establish a record on the request. Dawson testified that he learned of the right to appeal after meeting a law clerk at the Indiana Youth Center. The trial court confirmed its earlier ruling and Dawson filed a belated notice of appeal.
The State contends that the trial court had no authority to permit Dawson to file a belated notice of appeal.1 It isundisputed that the revocation of Dawson's probation was a final judgment and that Dawson did not file either a motion to correct error or a notice of appeal within thirty days after that judgment. See Ind.Code § 35-38-2-3(k); Ind. Appellate Rule 9(A)(1). The failure to file a timely notice of appeal forfeits the right to appeal except as provided by Indiana Post-Conviction Rule 2. App. R. 9(A)(5).
In pertinent part, Post-Conviction Rule 2 provides:
The State insists that Post-Conviction Rule 2 does not apply to probation revocation and other post-judgment proceedings. That issue was the focus of a recent case where a defendant did not timely appeal the probation revocation order but later asked the court to reconsider its revocation decision. Cooper v. State, 894 N.E.2d 993 (Ind.Ct.App.2008), trans. granted. The trial court had treated the subsequent hearing as one on a motion to reconsider and denied the defendant's motion. Id. at 995. On appeal, this Court reviewed the probation revocation order under our inherent authority to entertain an untimely appeal in "rare and exceptional" cases of great public interest. Id. at 995-96. Concurring in result, Judge Vaidik took the position that the merits of the appeal should be decided pursuant to Post-Conviction Rule 2. Id. at 999.2
On petition to transfer, a divided Indiana Supreme Court concluded that, because the defendant did not petition for permission to file a belated notice of appeal, the case was not an appropriate vehicle to resolve the question of whether probation revocation orders are appealable under Post-Conviction Rule 2. Cooper v. State, 917 N.E.2d 667, 673 (Ind.2009). As Justice Rucker wrote: "[I]t is axiomatic that any review of the trial court's decision to grant or deny a petition for permission to file a belated notice of appeal is wholly dependent on the defendant actually requesting permission in the first place." Id. The Court also rejected the position that the case qualified as rare and exceptional and, thus, analyzed "the only issue properly before" it, namely, the denial of the defendant's motion to reconsider. Id. Ultimately, the Court affirmed the trial court's denial of that motion. Id. at 674.
Here, Dawson sought and was granted permission to file a belated noticeof appeal of the probation revocation order. Thus, the issue avoided in Cooper is squarely before us. Moreover, the State does not challenge the fault/diligence inquiries but rather presents a pure question of law regarding the construction of P-C.R. 2. We evaluate questions of law under a de novo standard and owe no deference to the trial court's determinations. McCown v. State, 890 N.E.2d 752, 756 (Ind.Ct.App.2008).
Prior to 1994, Post-Conviction Rule 2 provided that "[w]here a defendant convicted after a trial or plea of guilty fails to file a timely praecipe [now notice of appeal], a petition for permission to file a belated praecipe may be filed with the trial court." Howard v. State, 653 N.E.2d 1389, 1390 (Ind.1995) (quoting Ind. P-C.R. 2(1), Indiana Rules of Court 1993). Thus, the rule "allowed requests from prisoners who were seeking to appeal something other than their direct appeal[.]" Id.; Greer v. State, 685 N.E.2d 700, 702 (Ind.1997).
Effective January 1, 1994, the rule was amended to provide that a defendant convicted after a trial or plea of guilty who had failed to file a timely praecipe could petition the trial court for permission to file a belated praecipe "for appeal of the conviction." Greer, 685 N.E.2d at 702 (discussing P-C.R. 2(1), Indiana Rules of Court 1994). Our supreme court interpreted the amended rule as the vehicle for belated direct appeals of convictions alone. Howard, 653 N.E.2d at 1390 (); Greer, 685 N.E.2d at 702 (). As explained by Justice Sullivan:
By following the procedure outlined in the prior version of P-C.R. 2(1), an appellant from a criminal conviction could (and still can), and an appellant from an adverse determination in other proceedings of a criminal nature arguably could (but now cannot), invoke the jurisdiction of the trial court over his or her particular case.
Greer, 685 N.E.2d at 703. Relying on Howard v. State, our Court held that the trial court could not permit a belated appeal of a probation revocation order. Glover v. State, 684 N.E.2d 542, 543 (Ind.Ct.App.1997). 3
Since that time, Post-Conviction Rule 2 has been amended several times. As delineated above, it now states that "[a]n eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence ...." (Emphasis supplied.) Addition of the "sentence" language comports with Collins v. State, 817 N.E.2d 230, 233 (Ind.2004), where the Indiana Supreme Court 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 P-C.R. 2." The current Rule also defines an "eligible defendant" as a defendant who, but for the 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...."
The State contends that Dawson is not an eligible defendant under the rule. We must agree. The plain definition encompasses those who possessed the rightbut failed to file a timely direct appeal of a conviction or sentence after a trial or plea of guilty. In this probation revocation hearing, Dawson cannot and does not challenge his conviction or sentence imposed upon that conviction. Rather, he argues that the trial court misinterpreted the law when imposing the sanction for revocation of his probation. Thus, the question is whether that sanction qualifies as a "sentence" under the Rule.
It is true that an order for probation derives from a sentencing order following a conviction or plea of guilty. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.2010) (). And a revocation of probation may involve a re-structuring of that order. See Ind.Code § 35-38-2-3(g) (). Accordingly, one justification for permitting belated appeals of probation revocation orders is that imposition of all or part of a previously-suspended sentence is similar to imposition of a modified sentence, which "carries with it the right to belatedly appeal pursuant to Indiana Post-Conviction Rule 2." See Cooper, 894 N.E.2d at 999 (Vaidik, J., concurring in result) (vacated); Cooper, 917 N.E.2d at 674 ().
The cases cited for that proposition, however, are Becker v. State, 719 N.E.2d 858 (Ind.Ct.App.1999) and Riffe v. State, 675...
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...to the threshold determination of whether Bowling is an “eligible defendant” under Post–Conviction Rule 2. See Dawson v. State, 938 N.E.2d 841, 844–45 (Ind.Ct.App.2010) (noting that plain definition of eligible defendant encompasses those who possessed right but failed to file timely direct......