Dakevee Wiggins v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), May 04 2016, 7:48 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Dakevee Wiggins Gregory F. Zoeller
Carlisle, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dakevee Wiggins, May 4, 2016
Appellant-Petitioner, Court of Appeals Case No.
71A05-1512-PC-2169
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jerome Frese,
Appellee-Respondent Judge
Trial Court Cause No.
71D03-1006-PC-34
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A05-1512-PC-2169 | May 4, 2016 Page 1 of 5
[1] Dakevee Wiggins appeals the denial of his motion for an extension of time to
appeal the denial of his post-conviction relief petition. Finding no error, we
affirm.
Facts
[2] On April 3, 2009, a jury found Wiggins guilty of murder. On April 30, 2009,
the trial court sentenced him to sixty-one years imprisonment. He appealed his
conviction, and we affirmed the judgment of the trial court in a memorandum
decision. Wiggins v. State, 71A03-0905-CR-222 (Ind. Ct. App. Dec. 17, 2009).
[3] On June 9, 2010, Wiggins, pro se, filed a petition for post-conviction relief,
which the State answered on June 16, 2010. Wiggins then filed an amended
petition for post-conviction relief on September 18, 2012. After Wiggins made
several attempts to withdraw his petition, which were denied by the post-
conviction court, the State filed its answer to the amended petition on
December 18, 2013. On January 8, 2014, the post-conviction court denied
Wiggins’s post-conviction relief petition.
[4] On February 11, 2014, Wiggins filed a request for an extension of time to
determine whether he would like to appeal. The post-conviction court denied
this request on March 3, 2014, and deemed the request to be a notice of appeal.
On August 24, 2015, Wiggins filed a second request for an extension of time—
this also was denied by the post-conviction court. Wiggins now appeals this
denial of his second request for an extension of time.
Court of Appeals of Indiana | Memorandum Decision 71A05-1512-PC-2169 | May 4, 2016 Page 2 of 5
Discussion and Decision
[5] Wiggins’s argument is based on Indiana Trial Rule 72(E), which reads as
follows:
Lack of notice, or the lack of the actual receipt of a copy of the
entry from the Clerk shall not affect the time within which to
contest the ruling, order or judgment, or authorize the Court to
relieve a party of the failure to initiate proceedings to contest
such ruling, order or judgment, except as provided in this section.
When the service of a copy of the entry by the Clerk is not
evidenced by a note made by the Clerk upon the Chronological
Case Summary, the Court, upon application for good cause
shown, may grant an extension of any time limitation within
which to contest such ruling, order or judgment to any party who
was without actual knowledge . . . . Such extension shall
commence when the party first obtained actual knowledge and
not exceed the original time limitation.
Wiggins argues that the Chronological Case Summary (CCS) does not
explicitly indicate that he ever received the post-conviction court’s January 8,
2014, order (the Order) denying his petition. Therefore, he argues, the post-
conviction court abused its discretion by denying his motion for an extension of
time to appeal the Order.
[6] We review the determination of a post-conviction court on a motion for relief
pursuant to Trial Rule 72(E) for an abuse of discretion. Taylor v. State, 939
N.E.2d 1132, 1136 (Ind. Ct. App. 2011). We consider whether the evidence
could reasonably support the conclusion reached by the post-conviction court.
Id.
Court of Appeals of Indiana | Memorandum Decision 71A05-1512-PC-2169 | May 4, 2016 Page 3 of 5
[7] We find several pieces of evidence indicating that Wiggins had actual
knowledge of the Order. First, the Order itself indicates that it was served upon
“Defendant-Petitioner.” Appellant’s App. p. 70.
[8] Second, Wiggins filed a motion for an extension of time on February 11, 2014,
in which he said, “I am asking the Court for a 45 days exten[sion] on my
behalf. I would like to appeal my post conviction P.C. under Appellate Rule
9(A).” Id. at 71. This indicates that Wiggins had actual knowledge of the
Order, as he was contemplating appealing that Order.
[9] Third, when the post-conviction court decided to treat Wiggins’s motion as a
notice of appeal, that March 3, 2014 order stated the relevant background of the
case, including the following: “1/8/14—This Court entered its Denial of
Petitioner’s P.C.R. Petition.” Id. at 72. This order also indicates that it was
served on Wiggins.
[10] Finally, when Wiggins wrote his second request for an extension of time, he
referred to all of these documents mentioned above.
[11] Thus, the post-conviction court had a wealth of evidence showing that Wiggins
had actual knowledge of the Order. The post-conviction court did not abuse its
discretion in denying his second motion for an extension of time, which he
wrote seventeen and a half months after the post-conviction court denied his
first motion for an extension of time.
Court of Appeals of Indiana | Memorandum Decision 71A05-1512-PC-2169 | May 4, 2016 Page 4 of 5
[12] The judgment of the post-conviction court is affirmed.
May, J., and Brown, J., concur.
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