Dejuan T. Lowe v. State of Indiana ( 2013 )


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  • Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not
    be regarded as precedent or cited
    before any court except for the
    purpose of establishing the defense of
    res judicata, collateral estoppel, or the
    law of the case.
    ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:
    MARK S. LENYO                                    GREGORY F. ZOELLER
    South Bend, Indiana                              Attorney General of Indiana
    IAN MCLEAN
    Deputy Attorney General
    Indianapolis, Indiana
    FILED
    Jan 11 2013, 9:13 am
    IN THE
    CLERK
    COURT OF APPEALS OF INDIANA                                  of the supreme court,
    court of appeals and
    tax court
    DEJUAN T. LOWE
    )
    Appellant-Defendant,                      )
    )
    vs.                                )       No. 71A03-1206-CR-264
    )
    STATE OF INDIANA,                                )
    )
    Appellee-Plaintiff.                       )
    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
    The Honorable Roland W. Chamblee, Judge
    Cause No. 71D08-0307-FA-49
    January 11, 2013
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    ROBB, Chief Judge
    Case Summary and Issue
    Dejuan Lowe appeals his sentence following a guilty plea. Lowe raises two issues on
    appeal but the State presents a preliminary issue that we find dispositive: whether the trial court
    abused its discretion in granting Lowe’s petition for permission to file a belated notice of appeal.
    Concluding that the trial court did abuse its discretion, and the appeal was therefore untimely, we
    dismiss the appeal.
    Facts and Procedural History
    On July 22, 2003, Lowe was charged with four counts of burglary as Class B felonies,
    one count of attempted burglary as a Class B felony, and one count of burglary as a Class A
    felony. On July 2, 2007, a plea hearing was held and Lowe pleaded guilty to all six charges,
    pursuant to an open plea agreement with the State. On July 24, 2007, a sentencing hearing was
    conducted. On April 11, 2012, Lowe filed a verified petition for permission to file a belated
    notice of appeal pursuant to Indiana Post-Conviction Rule 2(1),1 claiming that the trial court
    never advised him of his right to appeal, and so failure to file a timely notice of appeal was not
    his fault. On May 10, 2012, the trial court granted the petition, and this appeal followed.
    Discussion and Decision
    As a threshold matter, the State argues that the trial court abused its discretion by
    granting Lowe’s petition for leave to file a belated notice of appeal, because the record shows
    that Lowe was advised of his right to appeal and thus contradicts Lowe’s contention that he was
    not at fault for failing to file a timely notice of appeal. We agree.
    1
    Post-Conviction Rule 2(1) allows a defendant to seek permission to file a belated notice of appeal, and
    requires the defendant to show that:
    (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.
    2
    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. Russell v. State,
    
    970 N.E.2d 156
    , 160 (Ind. Ct. App. 2012), trans. 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. 
    Id.
     Lowe filed his petition for permission to file a belated notice of
    appeal on April 11, 2012 and the trial court granted the petition the following month. Neither
    party suggests that a hearing was held, and our review of the record does not indicate that a
    hearing was held. Therefore, we review the trial court’s grant of the petition de novo.
    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
    notice of appeal. 
    Id.
     There are no set standards of fault or diligence, and each case turns on its
    own facts. 
    Id.
     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, including: 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 contributed to the delay. 
    Id.
     (citing Moshenek v. State, 
    868 N.E.2d 419
    , 423 (Ind. 2007)).
    In his petition, Lowe’s only support for showing the lateness of the appeal was not his
    fault is his contention that he was unaware of his right to appeal because the trial court failed to
    advise him of that right. In fact, the record shows that he was informed of that right at the plea
    hearing. The court, at some length, advised Lowe of the rights he would be giving up if he
    pleaded guilty, including the right to have the State prove the elements of each offense beyond a
    reasonable doubt, and the right to appeal the conviction.        The court confirmed that Lowe
    understood these rights and that he would be giving them up by pleading guilty. The court then
    said to Lowe and another defendant, “I will tell you that you each have a right to appeal the
    3
    sentence that you receive even now on your guilty pleas if you think it is illegally incorrect and
    you are guaranteed the right to have a lawyer represent you even if you couldn’t afford your
    own.” The record thus shows that Lowe was informed of his right to appeal his sentence, in
    contradiction to his assertion in his petition.2
    Conclusion
    Having determined that Lowe was in fact informed of his right to appeal, and without
    Lowe having put forth any other basis for the failure to file a timely notice of appeal not being
    his fault, we conclude that he has failed to meet the requirement of Post-Conviction Rule
    2(1)(a)(2) and thus that it was an abuse of discretion for the trial court to grant his petition. The
    appeal is dismissed.
    Dismissed.
    MAY, J., AND PYLE, J., concur.
    2
    While we find this fact extremely persuasive, we also note, in consideration of the other factors set out by
    the supreme court, that Lowe was twenty-nine at the time of the plea hearing, had completed at least some high
    school and by his own admission could read and write okay, and had at least one prior felony conviction at the time
    of the offenses underlying this appeal. On the whole, it appears that the fault for failing to timely appeal lies with
    Lowe.
    4
    

Document Info

Docket Number: 71A03-1206-CR-264

Filed Date: 1/11/2013

Precedential Status: Non-Precedential

Modified Date: 4/18/2021