Salazar v. State

• Decision Date: 10 October 2006
• Docket Number: No. 79A02-0502-PC-130.,79A02-0502-PC-130.
• Parties: Victor A. SALAZAR, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

854 N.E.2d 1180

Victor A. SALAZAR, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 79A02-0502-PC-130.

Court of Appeals of Indiana.

October 10, 2006.

Victor A. Salazar, Pendleton, IN, pro se.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, for Appellee.

OPINION

SULLIVAN, Judge.

Appellant, Victor Salazar, challenges the trial court's denial of his petition for permission to file a belated appeal.

We reverse.

The record reveals that on December 6, 2001, under Cause Number 79C01-0206-FC-12 ("Cause No. FC-12"), the State charged Salazar with two counts of robbery as a Class B felony. Later, on December 12, 2001, the State charged Salazar under Cause Number 79C01-0112-CF-32 ("Cause No. CF-32") with two counts of dealing in marijuana as a Class C felony; two counts of possession of marijuana as a Class D felony; one count of conspiracy to deal in marijuana as a Class C felony; two counts of dealing in cocaine as a Class A felony; one count of dealing in a schedule IV controlled substance as a Class A felony; one count of conspiracy to deal in cocaine as a Class A felony; possession of cocaine as a Class A felony; possession of cocaine as a Class B felony; possession of a schedule IV controlled substance as a Class C felony; and maintaining a common nuisance as a Class D felony. On April 29, 2002, the State added charges of intimidation as a Class C felony and pointing a firearm as a Class D felony, under Cause No. FC-12.

On February 4, 2003, Salazar agreed to plead guilty under Cause No. CF-32 to one count of dealing in cocaine and one count of dealing in a schedule IV controlled substance, both as Class B felonies. In exchange, the State agreed to dismiss the remaining charges under Cause No CF-32 and all of the charges under Cause No. FC-12. The trial court held a plea hearing that same day. At the plea hearing, a portion of which is included in the record before us, the trial court advised Salazar of the various rights he would be waiving by pleading guilty. Relevant to the present case is the trial court's explanation of Salazar's right to appeal:

"You also have the right to appeal. That is[,] if your case were to proceed to trial and you were convicted, you would have the right to appeal your conviction to the Indiana Court of Appeals. Do you understand you have each of these rights but by pleading guilty you are waiving or giving up your rights?" App. at 33.

Salazar replied that he understood. On February 10, 2003, the trial court accepted the plea agreement and sentenced Salazar to fifteen years on both convictions to be served consecutively. Although the trial court's judgment is dated February 10, 2003, the CCS entry regarding sentencing is dated February 13, 2003. The abstract of judgment is also dated February 13, 2003.

On November 20, 2003, Salazar filed a pro se Motion for Guilty Plea and Sentencing Hearing Transcripts. In this motion, Salazar stated that he was "in the process of preparing a Petition for Post-Conviction Relief" upon the grounds that the trial court had used improper aggravating circumstances to enhance his sentence and that his sentence was "unreasonable" in that the court had not properly considered mitigating circumstances. App. at 43-44. According to the CCS, the transcripts of the guilty plea and sentencing hearings were sent to Salazar on January 9, 2004. Thereafter, on June 24, 2004, Salazar filed a motion for a discovery order, which the trial court denied the following day.¹

On November 9, 2004, our Supreme Court issued its opinion in Collins v. State, 817 N.E.2d 230, 233 (Ind.2004), wherein it held that "the proper procedure for an individual who has pled guilty in an open plea to challenge the sentence imposed is to file a direct appeal or, if the time for filing a direct appeal has run, to file an appeal under [Indiana Post-Conviction Rule] 2." In doing so, the Court resolved a conflict among panels of this court. In Taylor v. State, 780 N.E.2d 430 (Ind.Ct. App.2002), trans. denied, the court held as did the Supreme Court in Collins —that an individual who pleads guilty to an "open plea" must challenge his sentence by direct appeal. However, in both Collins v. State, 800 N.E.2d 609 (Ind.Ct.App.2003), trans. granted, opinion vacated, and Gutermuth v. State, 800 N.E.2d 592 (Ind.Ct.App.2003), trans. granted, opinion vacated, other panels of this court rejected the State's argument that the defendants had waived their right to challenge their sentences by failing to present their challenge in a direct appeal, and the court proceeded to address claims of sentencing error in a post-conviction proceeding. See Collins, 817 N.E.2d at 231.

Less than one month after our Supreme Court decided Collins, on December 1, 2004, Salazar filed a Verified Motion for Leave to Conduct Pre-Action Discovery and a Motion to Produce Prosecutor's File. These motions indicated that Salazar was still preparing to file a petition for post-conviction relief, and the latter motion specifically referenced Post-Conviction Rule 1(5). On December 5, 2004, the trial court ordered the State to respond to Salazar's motions before January 3, 2005. The State filed its response on January 7, 2005. The trial court entered an order dated January 7, 2005 denying Salazar's motions.

Salazar's actions up to this point all appear to have been directed towards filing a petition for post-conviction relief under Post-Conviction Rule 1. On January 12, 2005, Salazar seems to have switched strategies when he filed a "Petition to Appoint Local Counsel to Pursue Proceedings Under Ind. Post-Conviction Rule 2," in which he sought appointed counsel to pursue a belated motion to correct error or appeal. App. at 57. The trial court denied Salazar's motion on January 14, 2005. Shortly thereafter, on January 27, 2005, Salazar filed a pro se Motion for Permission to File a Belated Appeal.² In his motion, Salazar claimed that his failure to file a timely notice of appeal was not his fault, specifically stating as follows:

"Petitioner was never advise[d] of his right to appeal his sentence. Thus, petitioner did not know of his right to initiate an appeal of his sentence. Petitioner has never previously been convicted of a felony, and had no prior experience with the adult legal system and was unaware of Indiana appellate procedure. Petitioner has limited education, with no prior legal training in the law, and further, petitioner never completed high school.

During the petitioner's incarceration, petitioner was housed in G-cell house from 4-17-03 to 9-21-0 —.[³] G-cell house offenders are not allowed physical access to the prison law library. [A]s a result, petitioner did not have physical access to the law library and was unable to research his case.

Petitioner just learned that the proper procedure for an individual who has plead[ed] guilty in an `open plea' to challenge the sentence imposed is to file a direct appeal or, if the time for filing a direct appeal has run, to request permission to file a belated notice of appeal under Post-Conviction Rule 2. See, Collins v. State, 817 N.E.2d 230 (2004)." App. at 65.

On March 31, 2005, the trial court summarily denied Salazar's motion. Salazar filed a Motion to Correct Error or Modify Clerk's Record on April 4, 2005. The following day, the trial court ordered the clerk to provide Salazar with any portion of the record not previously provided to him, but otherwise denied his motion to correct error. Salazar filed a notice of appeal from the trial court's denial of his motion for permission to file a belated notice of appeal on April 25, 2005.⁴

Before turning to the merits of Salazar's claim regarding his motion for permission to file a belated notice of appeal, some procedural housecleaning is in order. Although not directly mentioned by either party, we observe that Salazar filed two separate notices of appeal in the present case. The first, filed on January 21, 2005, was an appeal from either the trial court's January 1, 2005 denial of Salazar's motion to conduct discovery and to produce the prosecutor's file or from the trial court's January 14, 2005 denial of Salazar's motion requesting the appointment of local counsel to pursue a belated notice of appeal. Indeed, following the January 21 notice of appeal, Salazar filed two appellant's case summaries: the first indicated that he was appealing the trial court's January 1 ruling, and the second indicated he was appealing the trial court's January 14 ruling. Neither of these rulings appear in any way to be final judgments from which Salazar had a right to appeal. See Ind. Appellate Rule 2(H) (defining "final judgment"); Ind. Appellate Rule 5(A) (defining this court's jurisdiction in appeals from final judgments). Nor does it appear that Salazar had a right to bring an interlocutory appeal from these matters. See Ind. Appellate Rule 14(A) (describing interlocutory appeals of right). Therefore, the only proper way for Salazar to appeal anything at the time of his January 21 notice of appeal would have been to file a discretionary interlocutory appeal. See Ind. Appellate Rule 14(B) (describing procedures for discretionary interlocutory appeals). There is no indication before us that this is what Salazar did. Despite the fact that this court later "consolidated" Salazar's January 21 and April 25 notices of appeal under one cause number, the earlier notice of appeal is a nullity and need not be considered. To be sure, even Salazar in his "consolidated" appellant's brief makes no mention of either the trial court's rulings on his discovery motions or request for local counsel. The April 25 notice of appeal from the trial court's March 31 denial of Salazar's motion for permission to file a belated notice of appeal, however, is a permissible final appeal. See Ind. Post-Conviction Rule 2(1) (specifically providing for appeals from the trial court's denial of a ...