Tolson v. State, 85A04-9510-CR-395
| Decision Date | 29 May 1996 |
| Docket Number | No. 85A04-9510-CR-395,85A04-9510-CR-395 |
| Citation | 665 N.E.2d 939 |
| Parties | James P. TOLSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
James P. Tolson appeals from the trial court's denial of his petition to file a belated praecipe or a belated motion to correct errors.
We reverse.
Whether the trial court abused its discretion in denying Tolson's motion.
A jury convicted eighteen year-old Tolson of rape and child molesting on February 24, 1993. Tolson has a learning disability, a verbal I.Q. of 74, functions at the borderline of intellectual ability, has been held back in school twice, and has an eighth grade education. He received a ten year and a four year sentence, to be served concurrently. At the sentencing hearing, the trial court explained to Tolson You are entitled to challenge the judgment of conviction of the Court, but to do so you must take an appeal or file a Motion to Correct Errors within thirty days of today. If you wish to take an appeal, you must file a praecipe which is just a formal request designating what is to be included in the record of proceedings on appeal within thirty days of this date or within thirty days after the Court rules on a Motion to Correct Errors if a Motion to Correct Errors is filed in the case. If you do not file a praecipe requesting the record, the right to appeal would be forfeited. If you are financially unable to employ an attorney, the Court would appoint an attorney to represent you at public expense for the purpose of filing the Motion to Correct Errors and for taking an appeal in this case. Now having explained all that to you, have you previously discussed that with your attorney?
MR. EDDINGFIELD [Tolson's attorney]: We've spoken about it briefly, Your Honor. We were waiting to see what transpired here today.
(R. 88-90).
Trial counsel testified that he spoke with Tolson directly after the sentencing hearing and that no decision was reached concerning an appeal. Trial counsel did not speak with Tolson again within the thirty-day period following the sentencing. Trial counsel did, however, speak with Tolson's family whom he told he "didn't feel there were any grounds, substantial grounds that we had to go on by virtue of appeal and that our best bet would be to show that there was some collusion or some, I guess some misrepresentation by one or more of the witnesses at the time of trial and to work on that and try to develop some relief for James from that standpoint...." (R. 95-6).
Tolson, however, "believed that [trial counsel] was going to take the necessary steps to appeal [his] convictions." (R. 24). Furthermore, Tolson's family, who paid for his private trial counsel, was under the same impression. The family paid trial counsel an extra $1,500.00 to pursue what they believed to be an appeal, although trial counsel testified the money was the balance of his fees for services already rendered. In addition, forty to sixty days after Tolson's sentencing, the family told trial counsel about several potential witnesses who possessed "new" evidence. The family also transported these witnesses to trial counsel's office to make affidavits from which trial counsel eventually prepared a "Verified Petition for Relief" which he took to Tolson in February of 1994, for his signature. Eventually, put off with the lack of communication from trial counsel, the family sought the advice of a second attorney, who reported that nothing had been filed in Tolson's case and that he was unable to determine what trial counsel was intending to request in the "Verified Petition for Relief."
While Tolson's family was attempting to gather the money to hire the second attorney to seek relief for Tolson, Tolson wrote a letter to the Indiana Public Defender in the late spring of 1994. After an ongoing series of communications, a deputy public defender was appointed to assist Tolson in his search for relief. Accordingly, a verified petition for permission to file a belated praecipe or belated motion to correct error accompanied by Tolson's affidavit was filed on his behalf on February 8, 1995. After a hearing wherein trial counsel, the second attorney, and Tolson's mother, father and sister testified, the trial court denied the petition, finding:
The Defendant has failed to establish by a preponderance of the evidence that he was without fault and that he was diligent in pursuing an appeal herein. The Court finds that the Defendant was informed of his right to appeal, the right to appointment of counsel to pursue appeal and that he knowingly thereafter waived appeal after consulting with counsel and deciding that another avenue of attack upon his conviction would be appropriate.
(R. 9).
Tolson now claims the trial court abused its discretion in denying his motion.
Ind. Post-Conviction Rule 2(1) provides in pertinent part:
Where a defendant convicted after a trial or plea of guilty fails to file a timely praecipe, a petition for permission to file a belated praecipe for appeal of the conviction may be filed with the trial court, where:
(a) the failure to file a timely praecipe was not due to the fault of the defendant; and
(b) the defendant has been diligent in requesting permission to file a belated praecipe under this rule.
The trial court shall consider the...
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...any evidence regarding the two elements of P-C.R. 2(1), a petitioner cannot have met his burden of proof. See, e.g., Tolson v. State, 665 N.E.2d 939, 942 (Ind.Ct.App.1996) (addressing the nature and amount of evidence necessary to sustain a petition for permission to file a belated Accordin......
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Beaudry v. State, 03A01-0105-CR-169.
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Selburg v. State Of Ind., 82A01-1002-CR-113
...appellate rights, and whether he committed an act or omission which contributed to the delay. Id. at 490 (quoting Tolson v. State, 665 N.E.2d 939, 942 (Ind. Ct. App. 1996)). Where, as here, the trial court does not hold a hearing on a petition to file a belated notice of appeal, our review ......