Cyril Washington v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 25 2018, 10:57 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Curtis T. Hill, Jr
Kokomo, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cyril Washington, January 25, 2018
Appellant-Defendant, Court of Appeals Case No.
34A05-1708-CR-1838
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable George A.
Appellee-Plaintiff. Hopkins, Judge
Trial Court Cause No.
34D04-1411-F5-152
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018 Page 1 of 5
Case Summary and Issue
[1] The trial court revoked Cyril Washington’s placement on in-home detention
and ordered him to serve the remaining portion of his sentence in the Indiana
Department of Correction. Washington appeals, raising the sole issue of
whether the trial court abused its discretion in calculating his credit time. The
State of Indiana cross-appeals, alleging the trial court lacked the authority to
permit Washington to file a belated notice of appeal. Concluding Washington
failed to timely file a notice appeal and the trial court lacked authority to
authorize a belated appeal from his probation revocation, we dismiss this
appeal.
Facts and Procedural History
[2] In May of 2015, Washington pleaded guilty to possession of marijuana, a Level
6 felony, and resisting law enforcement, a Class A misdemeanor. The trial
court sentenced Washington to a total of forty-two months—twenty-four
months executed on in-home detention and eighteen months suspended to
probation.
[3] On December 2, 2015, the State filed a notice alleging Washington violated the
terms of his in-home detention and the trial court issued a warrant for his arrest.
Washington was arrested on July 20, 2016. Following a hearing on September
30, 2016, the trial court revoked 183 days of Washington’s suspended sentence
and awarded him 146 days of credit for time served. Washington served the
Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018 Page 2 of 5
remaining portion of this sentence and returned to in-home detention on
October 27, 2016.
[4] On May 1, 2017, the State filed a second notice alleging Washington violated
the terms of his in-home detention and the trial court issued a warrant for his
arrest. On May 5, 2017, Washington was arrested. Washington admitted the
violations and on June 23, 2017, the trial court sentenced Washington as
follows:
[Washington] is ordered to serve the balance of his In-Home and
suspended sentence in the Indiana Department of Corrections in
the amount of One Thousand, Ninety Five (1,095) days.
[Washington] is given credit for in-home in the amount of One
Hundred Seventy Five (175) actual days or Three Hundred Fifty
(350) days with day for day credit from 10/27/2016 to 3/6/2017
and jail credit in the amount of Fifty (50) actual days of One
Hundred (100) days with day for day credit from 5/5/2017 to
6/23/2107 and Five (5) actual days of in-home credit left over
from the 9/30/2016 sentencing or Ten (10) days with day for day
credit leaving Four Hundred Fifty Nine (459) actual days to
serve.
Appellant’s Appendix, Volume 2 at 98. On August 8, 2017, Washington
sought permission to file a belated appeal. The trial court granted
Washington’s motion and he filed a belated notice of appeal on August 15,
2017.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018 Page 3 of 5
[5] Washington alleges the trial court improperly calculated the balance of his
sentence by failing to award him with credit for certain periods of time. The
State cross-appeals arguing belated appeals from orders revoking probation are
not available pursuant to Indiana Post-Conviction Rule 2. We agree with the
State.
[6] To initiate an appeal, a party must file a notice of appeal within thirty days after
entry of a final judgment. Ind. Appellate Rule 9(A)(1). “Unless the Notice of
Appeal is timely filed, the right to appeal shall be forfeited except as provided
by [Indiana Post-Conviction Rule 2].” App. R. 9(A)(5). The trial court
revoked Washington’s placement on in-home detention on June 23, 2017, and
Washington failed to file a notice of appeal within thirty days of that date.
Therefore, Washington’s appeal is untimely and he has forfeited his right to
appeal unless Indiana Post-Conviction Rule 2 provides otherwise.
[7] Indiana Post-Conviction Rule 2(1) permits an “eligible defendant” to petition
the trial court for permission to file a belated notice of appeal of his “conviction
or sentence.” An “eligible defendant” is one who, “but for the defendant’s
failure to do so timely, would have the right to challenge on direct appeal a
conviction or sentence after a trial or plea of guilty by filing a notice of appeal
. . . .” Ind. Post-Conviction Rule 2. The sanction imposed when probation is
revoked does not qualify as a “sentence” under Post-Conviction Rule 2.
Dawson v. State, 938 N.E.2d 841, 845 (Ind. Ct. App. 2010), adopted and
incorporated by reference by 943 N.E.2d 1281 (Ind. 2011).
Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018 Page 4 of 5
[T]he action taken by a trial court in a probation revocation
proceeding is not a “sentencing.” The court is merely
determining whether there has been a violation of probation and,
if so, the extent to which the court’s conditional suspension of the
original sentence should be modified and/or whether additional
conditions or terms of probation are appropriate.
Id. (quoting Jones v. State, 885 N.E.2d 1286, 1289 (Ind. 2008)). Thus,
Washington is not an “eligible defendant” and his appeal is not properly before
us due to his failure to file a timely appeal.1 We therefore decline to consider
this appeal.
Conclusion
[8] Washington failed to file his appeal in a timely fashion and there is no belated
appeal available to him. Accordingly, we dismiss his appeal.
[9] Dismissed.
Crone, J., and Bradford, J., concur.
1
Our supreme court has determined that “[f]orfeiture and jurisdiction are not the same.” In re Adoption of
O.R., 16 N.E.3d 965, 970 (Ind. 2014). A party may forfeit its right to an appeal, but that forfeiture does not
deprive an appellate court of jurisdiction to entertain the appeal. Id. at 971. A party who has forfeited the
right to appeal must present “extraordinarily compelling reasons” why their appeal should be restored. Id.
Washington’s brief does not address his failure to timely file an appeal or attempt to present extraordinarily
compelling reasons to consider his appeal.
Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018 Page 5 of 5