James v. State, No. 62A01-8811-CR-368

• Docket Nº: No. 62A01-8811-CR-368
• Citation: 534 N.E.2d 1113
• Case Date: February 27, 1989
• Court: Court of Appeals of Indiana

Page 1113

534 N.E.2d 1113 Charles JAMES, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 62A01-8811-CR-368. Court of Appeals of Indiana,
First District. Feb. 27, 1989.

Page 1114

Susan K. Carpenter, Public Defender, Jane Ruemmele, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Charles James appeals the denial of his petition for permission to file a belated motion to correct error.

We affirm.

In April, 1986, the State charged James with battery and criminal recklessness. James was tried by jury in October, 1986, but the jury was unable to return a verdict. The State then filed three additional charges and James was ordered to appear for an initial hearing on the new charges. When James failed to appear, a warrant was issued for his arrest. The record shows James was tried by a jury and convicted in absentia in February, 1987, of battery, disorderly conduct and two counts of resisting law enforcement. He was sentenced in March, 1987, again in absentia, and received consecutive sentences on all counts. James apparently was apprehended on April 24, 1987; he filed his pro se petition for post-conviction relief on July 6, 1987. The State Public Defender filed the petition for permission to file a belated motion to correct error, which is the basis of this appeal, on James's behalf on April 21, 1988. The trial court denied the petition, summarily, without a hearing.

James argues in this appeal that he has shown each of the prerequisites for filing a belated motion to correct error by a preponderance of the evidence, entitling him to a direct appeal. ¹ On appeal from the denial of a petition for post-conviction relief, the petitioner stands in the shoes of one appealing from a negative judgment.

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We will reverse the trial court's ruling as being contrary to law only if, considering only the probative evidence and reasonable inferences supporting the judgment, without weighing evidence or assessing witness credibility, the evidence is without conflict and leads to a conclusion opposite that reached by the post-conviction trial court. Clark v. State (1987), Ind., 506 N.E.2d 819, 820.

It is undisputed James never filed a timely motion to correct error. Hence, the inquiry focuses on whether James sustained his burden of proving the failure to file a timely motion to correct error was not due to his own fault. James maintains he is without fault because the trial court improperly sentenced him in absentia or failed to advise him of his right to appeal after he was taken into custody, in violation of the Due Process and Equal Protection Clauses of the federal Constitution and Art. 1, Sec. 1 and 12 of the Indiana Constitution.

While both the federal and state courts have on numerous occasions considered whether a defendant's absence may be deemed a waiver of the right to be present at trial, see, e.g., Taylor v. U.S. (1973), 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174; Diaz v. U.S. (1912), 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500; Bullock v. State (1983), Ind., 451 N.E.2d 646; Ramos v. State (1984), Ind., 467 N.E.2d 717, Indiana courts have only recently addressed the propriety of sentencing a defendant in absentia. In Williams v. State (1988), Ind., 526 N.E.2d 1179, the Indiana Supreme Court held it was proper for a trial court to proceed with sentencing in the absence of the defendant, following a trial in the defendant's absence, when the evidence showed the defendant had knowingly and voluntarily absented himself from the proceedings. Accord, Crank v. State (1987), Ind.App., 502 N.E.2d 1355.

We note at this juncture that James does not allege in his petition that he did not know when his trial was to commence or that his absence from the trial and sentencing was involuntary. Neither does he aver specific facts which would explain his absence or permit a factfinder to infer his absence might not have been knowing or voluntary. We note that this is an appeal from a post-conviction rule 2 proceeding at which the record of trial is deemed to have been before the post-conviction court. Henry v. State (1976), 170 Ind.App. 463, 353 N.E.2d 482, 484, n. 2. James has not included that portion of the record dealing with his absence from trial in the transcript and he does not argue the sufficiency of the evidence offered at trial on the voluntariness question in this appeal. Under these circumstances, where both the allegations of James's petition and a factual basis are lacking, we must affirm the post-conviction court's determination that no error occurred in sentencing James, as neither that court nor this one has been shown by a preponderance of the evidence that James's absence was anything but knowing and voluntary.

Regardless of whether James knowingly and voluntarily waived his right to be present at sentencing, James alleges in his petition that he did not knowingly and voluntarily waive his right to appeal. James points out that in Williams, supra, and other cases where the defendants had absented themselves from trial, the defendants were advised of the right to appeal and hence, were not prejudiced by the trial court's actions, either because sentencing was postponed until the defendant had been brought into custody as in Bullock, supra and Ramos, supra, or because the defendant was apprehended before the period for filing a motion to correct error had expired, immediately brought into court and advised of the right to appeal, as in Williams, supra. James distinguishes Crank, supra, which held that a defendant abandons his right to appeal by voluntarily absenting himself from sentencing, on the same basis, noting that Crank was not recaptured until after the filing period had expired.

Indiana, like other jurisdictions, has long followed the rule that a defendant forfeits his right to appellate review by voluntarily absenting himself from the trial court's jurisdiction during the period designated

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for filing a motion to correct error. See, e.g., Skolnick v. State (1981), 275 Ind. 461, 417 N.E.2d 1103; Lewis v. State (1978), 268 Ind. 398, 375 N.E.2d 1102; and, cf., Molinaro v. New Jersey (1970), 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 and Eisler v. U.S. (1949), 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897. Under Indiana law, a defendant is precluded from perfecting an appeal unless he submits to the trial court's jurisdiction. See, Irvin v. State (1957), 236 Ind. 384, 139 N.E.2d 898, aff'd. sub. nom. Irvin v. Dowd (7th Cir.1958), 251 F.2d 548, rev'd. on other grounds, 359 U.S. 393, 79 S.Ct. 825, 3 L.Ed.2d 900. Consequently, the appeal of a defendant initiated before an escape is effectuated is properly dismissed; Prater v. State (1984), Ind., 459 N.E.2d 39. Likewise, a defendant who is not returned to custody until the deadline for appeal has...