Hollowell v. State

• Decision Date: 30 October 2014
• Docket Number: No. 49S02–1310–PC–684.,49S02–1310–PC–684.
• Citation: 19 N.E.3d 263
• Parties: Anthony HOLLOWELL, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

19 N.E.3d 263

Anthony HOLLOWELL, Appellant (Petitioner below)

v.STATE of Indiana, Appellee (Respondent below).

No. 49S02–1310–PC–684.

Supreme Court of Indiana.

Oct. 30, 2014.

Anthony Hollowell, Greencastle, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A02–1211–PC–900

RUCKER, Justice.

From time to time a case is presented to us that neither implicates this Court's law-giving function, nor involves compelling issues of great public interest. This is such a case. But we elect to address the merits under the general heading of “doing substantial justice.” Here, despite a pro se petitioner's best efforts, his attempt to appeal the denial of his petition for post-conviction relief went awry and the Court of Appeals dismissed the appeal. We grant transfer and affirm the judgment of the post-conviction court.

Background

Anthony Hollowell was convicted of conspiracy to deal in cocaine as a class B felony and the trial court sentenced him to an executed term of sixteen years. Represented by counsel Hollowell appealed his conviction and sentence, which the Court of Appeals affirmed in a memorandum decision. See Hollowell v. State, No. 49A04–1012–CR–736, 2011 WL 3655147 (Ind.Ct.App. Aug. 19, 2011), trans. denied. Thereafter Hollowell filed a pro se petition for post-conviction relief. After an evidentiary hearing the post-conviction court denied relief on October 18, 2012.

Still acting pro se,¹ on November 2, 2012 Hollowell filed his Notice of Appeal with the appellate court clerk. And his certificate of service declared that Hollowell mailed the notice to the trial court clerk, the court reporter, the trial court, and the attorney general. See Ind. Appellate Rule 9(F)(10) & 24(A)(1) (requiring appellants to file the Notice of Appeal with the appellate court clerk, and serve copies of the Notice on the trial court clerk, the court reporter, and the parties). The trial court clerk received a copy of the Notice, but for reasons not apparent from the record before us, neither the court reporter nor the trial court received a copy.

Further, Hollowell had attached to the Notice of Appeal a motion directed to the trial court requesting permission to proceed in forma pauperis, which, if granted, would have afforded Hollowell a copy of the post-conviction transcript at public expense. The motion should also have been filed with the trial court. See App. R. 40(A)(2). Although the appellate docket revealed that a motion to proceed in forma pauperis was pending in the trial court, it does not appear from the record that the trial court clerk ever received or filed such a motion. In addition, the trial court clerk did not immediately notify the court reporter that a transcript had been requested. See App. R. 10(A).

On January 28, 2013 (the day the transcript was due), the court reporter and the trial court judge filed with the Court of Appeals a document titled “Court Reporter's Emergency Verified Motion for Extension of Time to File Transcript.” The motion declared that Hollowell and the trial court clerk had failed to serve the court reporter and the trial court with a copy of the Notice of Appeal. According to the emergency motion, the court reporter first learned on December 20 that a transcript had been requested, but the motion does not reveal how the request for a transcript came to the court reporter's attention or why the court reporter's motion was not filed until January 28. In any event the motion also represented that “satisfactory arrangements have not been made for payment of the transcript with the court reporter.” Id. at 3. We presume this representation reflected that the trial court had either not yet received or otherwise ruled upon Hollowell's motion to proceed in forma pauperis. The court reporter's motion requested an extension of time in which to complete the transcript.

In response to the emergency motion, the Court of Appeals issued an order declaring that the court reporter had no obligation to prepare the transcript unless she received further direction from the Court of Appeals. The order also directed Hollowell to show cause within thirty-five days why the appeal should not be dismissed because he had (1) failed to serve a copy of the Notice of Appeal on the court reporter,² and (2) failed to make payment arrangements for the transcript. See Hollowell v. State, No. 49A02–1211–PC–900 (Order, Feb. 8, 2013). The Order also warned: “Failure to timely respond to this order and comply with the Indiana Rules of Appellate Procedure may subject this appeal to dismissal.” Id. The Court of Appeals also granted Hollowell's Verified Motion for Leave to Proceed on Appeal In Forma Pauperis. See id. (Order, Feb. 5, 2013).

Hollowell timely filed his “Response to Order” asserting that he had followed all the rules of appellate procedure, and pointing out the trial court clerk's obligation to notify the court reporter of the filing of the Notice of Appeal and request for transcript. See App. R. 10(A). Acknowledging Hollowell's response the Court of Appeals thereafter dismissed the appeal without further explanation. See No. 49A02–1211–PC–900 (Order, April 10, 2013). Hollowell sought transfer, which we granted on October 11, 2013 thereby vacating the Court of Appeals' order dismissing Hollowell's appeal. See App. R. 58A. Noting that because Hollowell was proceeding in forma pauperis, the Court directed that he was entitled to a transcript at public expense. Thereafter full briefing on the merits proceeded in due course.

Facts and Procedural History

The facts relevant to this appeal are set forth in the memorandum decision of the Court of Appeals as follows:

On July 6, 2010, a confidential informant (“the CI”) reported to Detective Timothy Waters of the Indianapolis Metropolitan Police Department (“IMPD”) that someone was selling cocaine on Addison Street in Indianapolis. Detective Waters, acting as case manager of the ensuing investigation, asked Detective Ethan McGivern to make an undercover buy with the CI. The CI was to take Detective McGivern to a home on Addison Street, introduce him to Grant Jenkins, negotiate the purchase, and then travel to another location to consummate the purchase.

In preparation for the operation, Detective Waters searched the CI. He also fitted Detective McGivern with a Kel, a recording and transmitting device, and photocopied two twenty-dollar bills to use for the drug purchase.

At approximately 7:20 p.m., Detective McGivern and the CI drove to 265 North Addison Street and saw two African–American men on the front porch. Jenkins was one of the men. When the CI and Detective McGivern approached the porch, the CI approached Jenkins and told him that Detective McGivern wanted a “40,” meaning forty dollars' worth, or four-tenths of a gram, of cocaine. Jenkins made a phone call that lasted less than one minute. Jenkins then told the CI and Detective McGivern to wait for delivery from someone driving a Dodge Ram pickup truck. Detective McGivern asked to use the restroom in order to look around the house for mail or other identifying information.

Detective McGivern was in the house two minutes before he returned to the porch. About that same time, an older Dodge Ram truck with white over gray primer pulled in front of the house, with the driver's side door closest to the house. Jenkins said “He's here,” left the porch, and walked to speak with the driver, the only occupant of the truck. After Jenkins and the driver talked through the open driver's side window, Jenkins returned to the porch and asked Detective McGivern for the money, saying that the guy “didn't want to meet [McGivern] because [he] was white.” Tr[.] at 167. Detective McGivern gave Jenkins two twenty-dollar bills, which had been photocopied beforehand. Jenkins then “walked up to the truck and handed the driver the IMPD buy money, at which time the driver reached out with his right hand, had his hand cupped, dropped his hand into Mr. Jenkins' hand, and Jenkins closed his hand and returned to the porch.” Id. at 168.

When Jenkins returned to the porch, he gave Detective McGivern forty dollars' worth of crack cocaine. From the time the truck approached the house until Jenkins delivered the cocaine to the detective, Jenkins' hands were never in his pockets. And the person in the Dodge truck drove away.

As the CI and Detective McGivern left the Addison Street house, they watched the Dodge pickup. Through the Kel, Detective McGivern gave Detective Waters the physical description of the driver and the truck and said that the driver was the person who had delivered the cocaine. Detective Waters then gave Officer Jason Norman a description of the truck and its driver. Then he met with the CI and Detective McGivern at a pre-arranged nearby location to debrief and drop off the cocaine.

After receiving a description of the Dodge pickup, Officer Norman waited in a Kroger parking lot between Holmes Street and King Street. A short time later, he observed a pickup and driver pass by that matched the description from Detective Waters. Officer Norman followed the pickup and, after observing the truck cross the center line a couple of times, initiated a traffic stop. In the traffic stop, Officer Norman collected identification from the driver, Anthony Hollowell.

The State charged Hollowell and Jenkins with conspiracy to commit dealing in cocaine, as a Class B felony; dealing in cocaine, as a Class B felony; and possession of cocaine, as a Class D felony. Jenkins pleaded guilty as charged without a plea agreement prior to Hollowell's trial.

* * *

Following the close of evidence and deliberations, the jury found Hollowell guilty of conspiracy to commit dealing in cocaine but not guilty of dealing in cocaine or possession of cocaine. At sentencing, the trial court found Hollowell's criminal history,

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