APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
RICHARD LEE DAVIS STEVE CARTER
Ashland, Kentucky Attorney General of Indiana
CHRISTOPHER L. LAFUSE
RICHARD C. WEBSTER
Deputy Attorneys General
RICHARD LEE DAVIS, ) ) Appellant (Defendant ), ) Cause No. 34S02-0206-PC-305 ) in the Supreme Court v. ) ) STATE OF INDIANA, ) Cause No. 34A02-0102-PC-107 ) in the Court of Appeals Appellee (Plaintiff ). )
Richard Lee Davis appealed the denial of his motion to correct an erroneous sentence, but filed his notice of appeal several months after the trial courts ruling. The Court of Appeals permitted Davis to file this belated notice over the States argument that Davis failure to timely file forfeited his appeal. It lacked authority to do so.
Davis pled guilty to conspiracy to commit robbery, a class C felony. See footnote The trial court imposed a five-year sentence, with three years suspended and two years to run consecutively to a sentence imposed in a separate proceeding.
On September 5, 2000, Davis moved to correct his sentence, alleging that he did not intelligently and knowingly enter into his plea agreement. The trial court denied the motion on October 6th. To appeal this denial, Davis was required to file a praecipe within thirty days. He did not. Instead, he filed a notice of appeal on January 22, 2001. See footnote Because the appeal was not initiated within thirty days of the trial courts ruling, the State moved to show cause why the appeal should not be dismissed.
Davis argued that he did not receive notice of the trial courts ruling
and then moved to file a belated appeal.
panel of the Court of Appeals reviewed the case and permitted Davis to
pursue his appeal.
When the case was fully briefed on the merits, the Court of Appeals
sua sponte that Davis sentence was void ab initio because the trial
court lacked authority to impose consecutive sentences. Davis v. State, No. 34A02-0102-PC-107,
slip op. at 5 (Ind. Ct. App. Dec. 5, 2001). The State
sought rehearing, arguing as it had before the motions panel and in its
Appellees brief that the Court of Appeals lacked jurisdiction to hear the appeal.
The Court of Appeals issued a second opinion, declining to revisit the
ruling of its Motions Panel and reaffirming its authority to extend the period
of time within which Davis could file his praecipe. Davis v. State,
764 N.E.2d 761, 761-62 (Ind. Ct. App. 2002). We granted transfer.
Indiana Appellate Rule 9, covering the initiation of an appeal, is necessarily the
starting point. It states:
A party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment. However, if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the courts ruling on such motion . . . .
Further on, Rule 9 provides, Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by [Post-Conviction Rule] 2.
Davis filed his notice of appeal on January 22, 2001, well after the
thirty-day deadline had passed. He therefore forfeited his appeal, unless Post-Conviction Rule
2(1) salvages it. Rule 2(1), in pertinent part, states:
Where a defendant convicted after a trial or plea of guilty fails to file a timely notice of appeal, a petition for permission to file a belated notice of appeal for appeal of the conviction may be filed with the trial court . . . .
If the trial court finds no grounds for permitting the filing of a
belated notice of appeal, the defendant may appeal such denial by filing a
notice of appeal within thirty (30) days of said denial.
We have held more than once that P-C.R. 2(1) is a vehicle for
belated direct appeals alone.
See, e.g., Greer v. State, 685 N.E.2d 700,
702 (Ind. 1997) (quoting Howard v. State, 653 N.E.2d 1389, 1390 (Ind. 1995)).
It provides petitioners with a method to seek permission for belated consideration
of appeals addressing conviction, but does not permit belated consideration of appeals of
other post-judgment petitions. Howard, 653 N.E.2d at 1390. More specifically, the
Court of Appeals lacks subject matter jurisdiction over appeals other than direct appeals,
unless such appeals or petitions are timely brought. Greer, 685 N.E.2d at
703. This contrasts with its authority on matters such as tardy briefs,
for example, which merely subject the appeal to summary dismissal. App. R.
In this case, Davis appealed the denial of his motion to correct an
erroneous sentence. In
State ex rel. Gordon v. Vanderburgh Circuit Court, 616
N.E.2d 8, 9 (Ind. 1993) (per curiam), we analyzed motions to correct erroneous
sentence and held that they must be considered . . . petition[s] for
post-conviction relief. As such, the Court of Appeals was without authority to
hear Davis appeal because P-C.R. 2(1) does not permit belated appeals of motions
to correct erroneous sentences.
As for whether it was appropriate for the State to petition for rehearing
on the jurisdictional question originally considered by the motions panel, petitions under Appellate
Rule 54 may be based on substantive rulings made in the course of
submitting the appeal and on those issues directly addressed by the panel hearing
the appeal as finally submitted on the merits.
In considering such a
petition, the Court of Appeals can grant or deny in accordance with the
principles applicable to rehearing. See Griffin v. State, 763 N.E.2d 450 (Ind.
2002) (reviewing the nature of rehearing).
DICKSON, SULLIVAN, and BOEHM, JJ., concur.
RUCKER, J., concurs in result without separate opinion.
Douglas E. Cressler,
A Year of Transition in Appellate Practice, 35 Ind. L.
Rev. (forthcoming 2002) (emphasis in original).