Lewis v. State

• Decision Date: 15 May 1978
• Docket Number: No. 477S293,477S293
• Citation: 375 N.E.2d 1102,268 Ind. 398
• Parties: Arthur James LEWIS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1102

375 N.E.2d 1102

268 Ind. 398

Arthur James LEWIS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 477S293.

Supreme Court of Indiana.

May 15, 1978.

Harriette Bailey Conn, Public Defender, Susan K. Carpenter, Deputy State Public Defender, Indianapolis, for appellant (defendant below).

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

PRENTICE, Justice.

This is an appeal from the denial of the defendant's (appellant's) petition for relief under Post Conviction Rule 1. It presents two issues:

(1) Is the period allowed for perfecting an appeal in a criminal case tolled by the escape of the defendant from custody? Alternatively, is a convicted defendant whose appeal time expired during the period of his escape and absence from the jurisdiction of the court entitled to a belated appeal?

(2) Did the trial court err in summarily denying relief upon the grounds alleged in the post conviction petition which were re-allegations of the errors alleged in the original motion for a new trial?

This tedious and confusing state of affairs arises from repeated efforts of the defendant to obtain a belated appeal through our post conviction rules. We have previously denied him a belated appeal, but no opinion was written which may, in part, account for the same issue then decided being again before us.

Defendant was convicted of murder in the second degree upon overwhelming evidence that he killed the Sheriff of Pulaski County who was attempting to thwart his escape from jail. Following the denial of the defendant's motion to correct errors, which had been filed by counsel, the defendant, on November 18th, 1968, filed a pro se motion for the appointment of appellate counsel and for a transcript of the trial proceedings. On the same day, he proceeded with "self-help" by escaping from the Indiana State Prison where he had been incarcerated, not to be returned to custody until May 31, 1969. On November 27, 1968, the trial court dismissed the aforementioned motion upon the grounds of the defendant's escape.

It is the defendant's contention that the dismissal of his motion for a transcript and for counsel denied him a direct appeal. We hold that without regard to the correctness of the order of dismissal, such did not occasion the denial of the right to a direct appeal but rather, that such right was forfeited by the defendant's failure to exercise it within the time limits set by the rules of this Court then in effect.

In passing upon this issue, we have reviewed the aforementioned petition for permission to file a belated appeal and the supporting brief, as well as the defendant's brief filed herein; and we find the authorities cited by the defendant to be unsupportive of his position.

It has been held upon at least two occasions by this Court that when an appellant in a criminal case absents himself from the custody of the state and from its jurisdiction and becomes a fugitive from justice, he cannot prosecute his appeal. Doren v. State (1914) 181 Ind. 314, 104 N.E. 500; Sargent v. State (1884) 96 Ind. 63. In the Sargent case, we quoted from Smith v. United States, 94 U.S. 97, 24 L.Ed. 32, as follows: "If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case." 96 Ind. at 66.

The defendant was not entitled to have his motion ruled upon while he was a The defendant attaches some significance to a misconceived notion that his motion was dismissed only three days prior to the expiration of the time allowed for the filing of a praecipe for the record, and he urges that the motion was, in substance such a praecipe. Even if he were correct, the escape, nevertheless, was his own voluntary act. We point out, however, that at the time under consideration, our Appellate Rule 2(A) had not been adopted, and appeals were not then initiated by the filing of a praecipe for the record. The defendant under Rule 2-2 then operative, had ninety (90) days from the ruling upon the motion for a new trial in which to file his assignment of errors and transcript with this Court. Extensions of such time and belated appeals were also provided for under appropriate circumstances, which did not include the revival of rights lost by voluntary acts.

fugitive; but had the court sustained it, rather than dismissed it, the appeal could not have been perfected during his absence, which continued until after the expiration of the time limited by our rules.

In Lloyd v. State (1966) 247 Ind. 499, 217 N.E.2d 43, we held that belated appeals could be granted only for good cause shown, which did not include the expiration of the time allowed while the would-be appellant was a fugitive from the custody and jurisdiction of the court.

Subsequent to the determination of the Lloyd case, we adopted our post conviction rules. In so doing, we were not unmindful of our prior holdings. Post Conviction Rule 2 was drafted to provide for belated motions to correct errors and for belated appeals. In each case we excluded from the purview of the rule those whose failure to proceed at the proper time was due to their own fault. (Rules PC 2, § 1(b) and PC 2, § 2(b)).

In State ex rel. Ruetz v. LaGrange Circuit Court (1972) 258 Ind. 354, 281 N.E.2d 106, we held that a defendant who escaped following sentencing but whose lawyer later filed a timely motion to correct errors, was not entitled to an appeal inasmuch as he was not within the jurisdiction of the court at the time the motion was filed and the time allowed for filing such motion had expired prior to his return to custody. Thereafter, in Ruetz v. Lash (1974) 500 F.2d 1225, the United States Court of Appeals, Seventh Circuit, directed a district court to issue an appropriate order discharging Ruetz from the custody of the Warden of the Indiana State Prison, unless the State provided him with an appeal on the merits of his case. The Court of Appeals reasoned that Ruetz had filed a timely motion to correct errors, a requisite to filing...