Dowell v. State

• Decision Date: 30 June 2009
• Docket Number: No. 32A01-0810-PC-508.,32A01-0810-PC-508.
• Parties: Regunal DOWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

908 N.E.2d 643

Regunal DOWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 32A01-0810-PC-508.

Court of Appeals of Indiana.

June 30, 2009.

Regunal Dowell, Carlisle, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Ann L. Goodwin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Regunal Dowell was convicted in 2006 of three counts of rape, one count of criminal deviate conduct, and one count of confinement. After his convictions and sentence were affirmed on direct appeal, Dowell, pro se, petitioned for post-conviction relief. The trial court denied his petition, and Dowell filed a motion to correct error. After the trial court denied the motion to correct error, Dowell, still pro se, filed a notice of appeal. On appeal, he argues that the post-conviction court erred by denying his motion to correct error because the court should have found that he was entitled to a hearing on his post-conviction petition. The State cross-appeals, arguing that Dowell's appeal must be dismissed because he failed to timely file his underlying motion to correct error, thereby depriving this Court of jurisdiction to entertain his appeal. Concluding that the prison mailbox rule applies, we determine that Dowell timely filed his motion to correct error. We also conclude that the post-conviction court did not err by denying Dowell's petition for post-conviction relief without an evidentiary hearing. We affirm.

Facts and Procedural History

We recited the facts underlying Dowell's convictions in our opinion regarding his direct appeal:

In September 2005, R.B. began dating Dowell. They became intimate and had sexual relations nearly every day up until mid October. Their relationship became more infrequent when R.B. moved and took on family obligations.

On October 19, 2005, R.B. went to Dowell's home after work. The two left for a pub when Dowell began smoking marijuana, which R.B. did not like. R.B. told Dowell that she wanted to discontinue the relationship because he would not stop using marijuana but that they could remain friends. Dowell did not take R.B. seriously.

At the pub, Dowell asked R.B. if they could still have sex. R.B. clearly indicated no. They spent nearly two and a half hours at the pub. Dowell drank several beverages while R.B. had three during that time, two of which Dowell helped finish. They both left the pub with Dowell driving. R.B. testified that she felt fine for the first ten minutes of the ride, but then suddenly felt nauseated and began to vomit, a feeling she said she had never experienced before while drinking.

When they arrived at Dowell's residence Dowell ordered R.B. out of his car. R.B. complied and then tried to remain outside, but Dowell dragged her into his garage by her hair. R.B. began to vomit again into a trashcan in the garage. While R.B. leaned over the trashcan, Dowell came from behind her and reached around her to pull down her pants and underwear. R.B. resisted, but Dowell raped her. As R.B. struggled more, Dowell grabbed her neck and hair and dragged her into the house. Dowell pushed R.B. into a bathroom where she continued to vomit. He again raped her. When he could not maintain an erection, he digitally penetrated R.B.'s vagina while she begged him to stop.

Dowell struck R.B. several times in the head yet she still continued her attempt to flee. Eventually, R.B. lost consciousness and later awoke in Dowell's upstairs bedroom. She crawled to the bathroom to vomit more. Dowell yelled at her about their relationship and raped and digitally penetrated her again. R.B. continued to beg him to stop, but Dowell pulled her hair back straining her neck and then digitally penetrated her anus. Then, Dowell raped R.B. again. He strangled R.B. until she lost consciousness. When she awoke she was able momentarily to force Dowell out of the bathroom where she locked herself in. Dowell removed the door handle and dragged R.B. into the bedroom. They struggled on the bed and then fell on the floor with Dowell falling on top of R.B. R.B. testified that she lost her memory at that point until she woke up in his bed the next morning. She immediately fled and went home to call the police.

Dowell v. State, 865 N.E.2d 1059, 1062-63 (Ind.Ct.App.2007), vacated in part and summarily aff'd in part, 873 N.E.2d 59 (Ind.2007). As a result of these offenses, Dowell was charged with and convicted of three counts of rape, one count of criminal confinement, and one count of criminal deviate conduct. On direct appeal, Dowell raised several challenges to his convictions and sentence. His convictions and sentence were affirmed. Id.

Dowell filed a pro se petition for post-conviction relief in 2007. In his petition, Dowell argued that he received ineffective assistance of trial counsel because counsel failed to challenge his three rape charges and subsequent convictions on double jeopardy grounds and that he received ineffective assistance of appellate counsel because counsel failed to raise this issue on direct appeal. Appellant's App. p. 25-36. The post-conviction court held a hearing on Dowell's petition on April 9, 2008. Id. at 38-42. During this hearing, Dowell informed the court that he did not have a copy of his trial transcript and wished to amend his petition after receiving the transcript. Id. at 40-41. The post-conviction court asked Dowell how long it would take him to amend his petition once he received the transcript, and Dowell responded, "30 to 45 days maximum." Id. at 41. Accordingly, the post-conviction court ordered that Dowell had until May 23, 2008, to amend his petition or request more time. Id. at 42.¹

Dowell received a copy of his trial transcript on April 25, 2008. Id. at 12. However, he chose not to amend his petition for post-conviction relief. Appellant's Br. p. 5. On July 7, 2008, the post-conviction court denied Dowell's petition for post conviction relief without a hearing. Appellant's App. p. 3. Thirty days later, on August 6, 2008, Dowell placed a motion to correct error in the prison mail system. Id. at 16. Two days later, on August 8, the motion to correct error was file-stamped by the Clerk of the Hendricks County Courts. Id. at 3, 11. The post-conviction court denied the motion. Id. at 6. Dowell now appeals pro se.

Discussion and Decision

Dowell, pro se, appeals from the denial of his motion to correct error, which he filed following the denial of his petition for post-conviction relief. The State cross-appeals, arguing that this Court lacks jurisdiction to entertain the merits of Dowell's appeal because Dowell failed to timely file his motion to correct error. Because jurisdiction is a threshold issue, we address the State's claim first.

I. Jurisdiction

The State argues that this appeal should be dismissed for lack of jurisdiction because Dowell failed to timely file a motion to correct error or a notice of appeal after the trial court issued its order denying his petition for post-conviction relief. A party only has thirty days after the entry of a final judgment to either file a motion to correct error or file a notice of appeal. Ind. Trial Rule 59(C) (A motion to correct error "shall be filed not later than thirty (30) days after the entry of a final judgment or an appealable final order"); Ind. Appellate Rule 9(A)(1) ("A party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment. However, if any party files a timely motion to correct error, a notice of appeal must be filed within thirty (30) days after the court's ruling on such motion, or thirty (30) days after the motion is deemed denied under Trial Rule 53.3, whichever occurs first."). After the trial court denied Dowell's petition for post-conviction relief, Dowell opted to file a motion to correct error rather than immediately appeal the trial court's ruling. Unless a motion to correct error is timely filed or permission to file a belated motion to correct error has been sought and granted pursuant to Indiana Post-Conviction Rule 2, we must dismiss the appeal. Goodman v. State, 581 N.E.2d 1259, 1260 (Ind.Ct.App.1991).

Here, the post-conviction court denied Dowell's petition for post-conviction relief on July 7, 2008. Appellant's App. p. 3. Thus, he had until August 6, 2008, to either file a notice of appeal or a motion to correct error. See Ind. Appellate Rule 25(B); Ind. Trial Rule 6(A). The State contends that Dowell neither filed a notice of appeal nor a motion to correct error within thirty days of this final order and that, instead, thirty-two days after the judgment Dowell filed his motion to correct error.

We must disagree. Dowell's motion to correct error, filed while he was incarcerated, implicates the "prison mailbox rule." Under the "prison mailbox rule," recognized by the United States Supreme Court in Houston v. Lack, pro se filings from an incarcerated litigant are deemed filed when they are delivered to prison officials for mailing. McGill v. Ind. Dep't of Corr., 636 N.E.2d 199, 202 (Ind.Ct. App.1994) (citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)), reh'g denied. Although Houston discusses filings by federal prisoners, it compellingly articulates the reason for deeming a prisoner's pro se court filings "filed" upon delivery to a prison's mail system:

Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped "filed" or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. And if other litigants do choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a...