Russell v. State

• Decision Date: 28 June 2012
• Docket Number: No. 28A01–1112–CR–559.,28A01–1112–CR–559.
• Citation: 970 N.E.2d 156
• Parties: Kenneth E. RUSSELL, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

970 N.E.2d 156

Kenneth E. RUSSELL, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 28A01–1112–CR–559.

Court of Appeals of Indiana.

May 21, 2012.

Ordered Published June 28, 2012.

Cara Schaefer Wieneke, Wieneke Law Office, LLC, Plainfield, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Kenneth E. Russell appeals his sentence for two counts of battery as class B felonies.¹ Russell raises one issue which we revise and restate as whether his sentence is inappropriate in light of the nature of the offense and the character of the offender. On cross-appeal, the State asserts that the trial court abused its discretion by allowing Russell to file a belated notice of appeal. We affirm.

The relevant facts follow. Russell, who was born on November 6, 1984, was married to Constance Russell. The couple had two children, a son born in 2008, and another son, C.W.R., born on October 6, 2010. On October 23, 2010, Russell was in charge of C.W.R. and grabbed him around the ribcage, squeezed him, and shook him in an attempt to stop his crying. C.W.R. suffered fractured ribs as a result of Russell's actions.

On November 7, 2010, Constance went to the grocery store for approximately an hour, and C.W.R. began crying while in Russell's care. Russell became frustrated and angry, grabbed C.W.R. “pretty hard around the rib cage,” picked him up, and shook him to try and stop him from crying. Transcript at 11. C.W.R. stopped breathing, and Russell made efforts to perform CPR. Russell reported that Constance walked through the door just as C.W.R. became limp, and that Constance called 911. An ambulance arrived and took C.W.R. to the hospital. An assessment of C.W.R. indicated that he suffered bruises at his chest wall and rib cage, multiple rib fractures, extensive retinal hemorrhages, and severe brain injury.

In November 2010, the State charged Russell with three counts of battery as class B felonies.² On March 17, 2011, the court scheduled a jury trial for May 9, 2011. On April 27, 2011, a negotiated plea agreement was filed in which Russell agreed to plead guilty to Counts I and III as charged, and the State agreed to dismiss the second count and not make a sentencing recommendation. Sentencing was left to the discretion of the trial court. The court cancelled the scheduled jury trial, accepted the plea agreement, and Russell pled guilty pursuant to the terms of the plea agreement.

On July 1, 2011, the court held a sentencing hearing and found the following aggravating factors: (1) “[s]pecific to Count 1, the harm, injury, loss, or damage suffered by the victim was significant and greater than the elements necessary to prove the commission of the offense;” (2) the age of the victim; (3) Russell was in a “position of having care, custody, or control of the victim;” (4) the injury was the result of shaken baby syndrome; (5) Russell had sought help from family and health care providers before when he experienced mental health issues, knew his actions at the time of the first offense were inappropriate, and had the opportunity to seek help or obtain assistance with his stress in order to prevent future episodes. Appellant's Appendix at 15. The court found Russell's lack of criminal history, guilty plea and acceptance of responsibility, display of genuine remorse and sorrow, and history of mental health issues as mitigators. The court also found as mitigators the fact that the crimes were the result of circumstances that were unlikely to recur and that Russell's history and character indicate that he is unlikely to commit another crime. The court found that the aggravating factors substantially outweighed the mitigating factors.

The court sentenced Russell to fifteen years with three years suspended on Count I and twelve years with two years suspended on Count III. The court ordered the sentences to be served consecutive with each other for an aggregate executed sentence of twenty-two years. The court informed Russell that the right to appeal may be forfeited if a notice of appeal was not filed within thirty days. Russell indicated that he intended to pursue an appeal of the sentence. The following exchange then occurred:

BY THE COURT: Okay. I'll have Mr. Riester assist you and make sure a notice of appeal is timely filed so you do not lose any rights to appeal and the Court will appoint the State Public Defender's Office who will assign an attorney to represent you through the appellate process. Okay? Do you understand that?

RUSSELL: Yes.

Transcript at 62. The sentencing order dated July 1, 2011, states:

[Russell] advises the Court that he does desire to appeal the sentences imposed in this case. The Court hereby orders the State Public Defender appointed to represent [Russell] in his appeal, and attorney James Riester's appointment shall remain in effect in order to assist [Russell] until such time that appellate counsel enters their Appearance.

Appellant's Appendix at 35(j).

On July 5, 2011, the court issued an order appointing counsel for appeal which stated:

[Russell] has notified the Court on this date that a Notice of Appeal will be filed and is requesting Court Appointed Counsel for Appeal Purposes. The Court, being duly advised in the premises, now appoints the Indiana State Public Defender's Office, One North Capitol, Suite 800, Indianapolis, IN 46204–2026, to represent [Russell] for purposes of appealing his sentence. The Indiana State Public Defender is hereby notified accordingly and requested to appear.

Id. at 35(g).

On October 3, 2011, a member of the Greene County Circuit Court staff contacted Sharon Ford, the Senior Supervising Secretary at the State Public Defender's Office to check the status of a sentencing appeal for Russell. Ford informed the individual that she had never received any information about a direct appeal appointment and a search for Russell's case in their internal office database returned no results. Later that day, the Greene County Circuit Court faxed a copy of the order appointing the State Public Defender to handle the appeal, and Ford contacted a contract attorney on October 5, 2011. On October 6, 2011, Ford prepared the necessary paperwork to show that the State Public Defender had accepted the appellate appointment and had appointed a contract attorney to handle Russell's case. On October 7, 2011, the Public Defender filed an Acceptance of Appointment and Formal Notice of Appointment of Outside Counsel. Russell's mother contacted the Greene County Clerk's Office or the court staff to inquire about the status of Russell's appeal on October 4, 7, and 11, 2011.

On November 9, 2011, Russell filed a petition for permission to file a belated notice of appeal and attached a copy of the case chronological summary, the order appointing counsel for appeal dated July 5, 2011, the sentencing order, an affidavit of Ford, and an affidavit of Russell's mother. The court granted Russell's petition the following day and found that Russell was “without fault in failing to file a timely notice of appeal and was diligent in seeking permission to file a belated notice of appeal under Indiana Post–Conviction Rule 2.” Id. at 36.

I.

We first address the State's argument that the trial court abused its discretion by granting Russell's motion for a belated appeal because, if it has merit, it would be dispositive of Russell's claims. Generally, the decision whether to grant permission to file a belated notice of appeal or belated motion to correct error is within the sound discretion of the trial court. Moshenek v. State, 868 N.E.2d 419, 422 (Ind.2007), reh'g denied. However, if the trial court does not hold a hearing before granting or denying a petition to file a belated notice of appeal, the appellate court owes no deference to the trial court's decision, and the review of the granting of the petition is de novo. Baysinger v. State, 835 N.E.2d 223, 224 (Ind.Ct.App.2005). Here, Russell filed his petition for permission to file a belated notice of appeal on November 9, 2011, and the court granted the petition the following day. The State indicates that no hearing was held on the petition, Russell does not dispute this fact, and our review of the record does not reveal that a hearing was held. Therefore, we will review the trial court's grant of the petition de novo. See id.

Ind. Post–Conviction Rule 2 permits a defendant to seek permission to file a belated notice of appeal and provides:

(a) Required Showings. An eligible defendant[ ³] 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 if;

(1) the defendant failed to file a timely notice of appeal;

(2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and

(3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.

Thus, Russell was required to show that his failure to file a timely notice of appeal was not his fault and that he had been diligent in requesting permission to file a belated notice of appeal.

“The defendant bears the burden of proving by a preponderance of the evidence that he was without fault in the delay of filing and was diligent in pursuing permission to file a belated motion to appeal.” Moshenek, 868 N.E.2d at 422–423. There are no set standards of fault or diligence, and each case turns on its own facts. Id. at 423. The Indiana Supreme Court has held that several factors are relevant to the defendant's diligence and lack of fault in the delay of filing. Id. “These include ‘the defendant's level of awareness of his procedural remedy, age, education, familiarity with the legal system, whether the defendant was informed of his appellate rights, and whether he committed an act or omission which...