Michael D. Hickingbottom v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Dec 29 2014, 6:15 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
MICHAEL D. HICKINGBOTTOM GREGORY F. ZOELLER
Carlisle, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL D. HICKINGBOTTOM, )
)
Appellant-Petitioner, )
)
vs. ) No. 45A05-1407-CR-328
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence D. Murray, Judge
Cause No. 45G02-0108-CF-178
December 29, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Michael D. Hickingbottom appeals the trial court’s denial of his petition to file a
belated motion to correct error. Hickingbottom raises five issues for our review, but we
need only address the following dispositive issue: whether the trial court abused its
discretion when it denied his petition. We affirm.
FACTS AND PROCEDURAL HISTORY
On August 7, 2001, after two prior trials had resulted in mistrials, the State
charged Hickingbottom with murder, a felony. On October 15, 2004, a jury found
Hickingbottom guilty as charged. The trial court entered its judgment of conviction
against Hickingbottom and sentenced him to sixty years in the Department of Correction.
Hickingbottom filed a direct appeal in which he challenged his conviction and
sentence. On February 8, 2006, this court affirmed his conviction and sentence on direct
appeal. Hickingbottom then sought post-conviction relief, in which he alleged ineffective
assistance from his trial counsel. The post-conviction court denied his petition, and, on
July 11, 2008, this court affirmed the post-conviction court’s judgment.
On July 12, 2010, Hickingbottom filed a motion with this court for permission to
file a successive petition for post-conviction relief, which we denied. Hickingbottom
filed a second motion with this court for permission to file a successive petition for post-
conviction relief on August 1, 2011, which we also denied. On December 14, 2012,
Hickingbottom filed a third motion with this court, which we again denied. Undeterred,
on July 10, 2013, Hickingbottom filed a fourth motion. We denied it.
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Apparently seeking a new option, on March 20, 2014, Hickingbottom filed the
instant petition in the trial court for permission to file a belated motion to correct error.
Noting Hickingbottom’s direct appeal, post-conviction hearing, and post-conviction
appeal, the trial court denied Hickingbottom’s request. This appeal ensued.
DISCUSSION AND DECISION
Hickingbottom asserts that the trial court abused its discretion when it denied his
request to file a belated motion to correct error because, according to Hickingbottom,
there are numerous reasons to doubt the validity of his conviction. As our supreme court
has stated:
The decision whether to grant permission to file a . . . belated motion to
correct error is within the sound discretion of the trial court. 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 motion . . . . Several factors are relevant to the defendant’s
diligence and lack of fault in the delay of filing. These include 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.
Moshenek v. State, 868 N.E.2d 419, 422-23 (Ind. 2007) (citations and quotations
omitted).
We first note that Hickingbottom’s brief on appeal does not present an argument
supported by cogent reasoning that explains how the trial court may have abused its
discretion when it denied his motion. Rather, Hickingbottom’s argument on appeal
simply asserts that the trial court erred because Hickingbottom believes he is entitled to
relief on the merits of his petition. But this analysis does not address the factors recited
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by our supreme court in Moshenek. As such, Hickingbottom is not entitled to appellate
relief. Ind. Appellate Rule 46(A)(8)(a).
In any event, we cannot say that the trial court abused its discretion when it denied
Hickingbottom’s motion. The purpose for a belated motion to correct error under Indiana
Post-Conviction Rule 2 is to develop matters “relating to . . . the direct appeal.” Sceifers
v. State, 663 N.E.2d 1191, 1192-93 (Ind. Ct. App. 1996), trans. denied. But
Hickingbottom has had his direct appeal. Indeed, he has also had a post-conviction
hearing, an appeal from the post-conviction court’s judgment, and (so far) four requests
to this court for him to file a successive petition for post-conviction relief. Thus, we
agree with the State that Hickingbottom is no longer eligible to request a belated motion
to correct error. Ind. Post-Conviction Rule 2. Indeed, Hickingbottom’s belated motion to
correct error is, in effect, simply an attempt to circumvent the procedure in place for the
filing of successive petitions for post-conviction relief. See P-C.R. 1(12). Additionally,
the procedural history here demonstrates that Hickingbottom unquestionably has a high
“level of awareness of his procedural remedy,” “familiarity with the legal system,” and
knowledge “of his appellate rights.” Moshenek, 868 N.E.2d at 422-23. Hence, the trial
court properly rejected his motion to file a belated motion to correct error, and we affirm
its judgment.
Affirmed.
MATHIAS, J., and BRADFORD, J., concur.
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