Anthony J. Demarco v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 30 2020, 8:38 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Anthony J. DeMarco Curtis T. Hill, Jr.
Indiana State Prison Attorney General of Indiana
Michigan City, Indiana
Steven J. Hosler
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony J. DeMarco, October 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-627
v. Appeal from the Kosciusko
Superior Court
State of Indiana, The Honorable David C. Cates,
Appellee-Plaintiff Judge
Trial Court Cause No.
43D01-0503-FA-35
Crone, Judge.
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Case Summary
[1] Anthony J. DeMarco, pro se, appeals the trial court’s denial of his petition for
permission to file a belated notice of appeal. We affirm.
Facts and Procedural History
[2] In 2006, a jury found DeMarco guilty of four counts of class A felony child
molesting. The trial court sentenced him to an aggregate term of 120 years.
DeMarco appealed his sentence, arguing that the aggravating circumstances
found by the trial court did not justify four consecutive thirty-year sentences.
Another panel of this Court determined that DeMarco’s claim was precluded
by recent statutory amendments and instead reviewed the appropriateness of his
sentence under Indiana Appellate Rule 7(B); the panel held that an aggregate
term of sixty years was appropriate and remanded with instructions to issue an
amended sentencing order. DeMarco v. State, No. 43A03-0603-CR-128, 2006
WL 3759216 (Ind. Ct. App. Dec. 22, 2006), trans. denied (2007). The trial court
issued that order in March 2007.
[3] In January 2020, DeMarco, pro se, filed a petition for permission to file a
belated notice of appeal of his amended sentence, in which he alleged that the
failure to file a timely notice of appeal was not his fault because he “was not
present when the trial court re-sentenced [him] to sixty years, nor was [he]
made aware that he was entitled to be present, or entitled to counsel, or advised
that he had a right to appeal the newly imposed 60-year sentence.” Appellant’s
App. Vol. 2 at 46. The trial court denied the petition without a hearing, finding
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that the record “is clear” that DeMarco appeared in person and by counsel for
entry of the amended sentencing order and “[t]hat there are no grounds for
permitting filing of a belated notice of appeal.” Id. at 53. DeMarco then filed a
motion to reconsider and a motion to correct error, both of which were denied.
This appeal ensued.
Discussion and Decision
[4] Where, as here, “the trial court does not conduct a hearing on a petition for
permission to file a belated notice of appeal, we review a trial court’s decision
regarding the petition de novo.” Bosley v. State, 871 N.E.2d 999, 1002 (Ind. Ct.
App. 2007). Such petitions are governed by Indiana Post-Conviction Rule 2(1),
which provides,
An eligible defendant convicted after a trial or plea of guilty may
petition the trial court for permission to file a belated notice of
appeal of the conviction or sentence if;
(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.
A petitioner has the burden of proving the foregoing by a preponderance of the
evidence. Townsend v. State, 843 N.E.2d 972, 974 (Ind. Ct. App. 2006), trans.
denied. As a pro se litigant, DeMarco is held to the same standard as trained
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counsel and is required to follow procedural rules. Hollen v. State, 994 N.E.2d
1166, 1168 (Ind. Ct. App. 2013).
[5] It is undisputed that DeMarco failed to file a timely notice of appeal. He claims
that this failure was not his fault because he “was not made aware that he had a
statutory right to be present when the judge resentenced [him] to 60 years.”
Appellant’s Br. at 6. 1 DeMarco asserts that this right derives from Indiana
Code Section 35-38-1-4(a), which provides that “[t]he defendant must be
personally present at the time sentence is pronounced.” But DeMarco cites no
authority for the proposition that Indiana Code Section 35-38-1-4(a) applies in
situations like this, where a trial court resentences a defendant pursuant to
instructions from this Court that leave no discretion as to the sentence
imposed. 2 Failure to cite authority for an argument waives the issue for our
review. Whitfield v. State, 127 N.E.3d 1260, 1268 n.5 (Ind. Ct. App. 2019), trans.
denied. And, as the State points out, DeMarco has failed to identify “how he
pursued his belated appeal with diligence.” Appellee’s Br. at 9. Therefore, we
affirm the trial court.
1
The record leaves some doubt regarding whether DeMarco was in fact present when the trial court issued
the amended sentencing order. Although that order (which is nearly identical to the original sentencing
order) states that DeMarco was present with counsel for resentencing, the chronological case summary does
not indicate that a hearing was held or that an order was issued to transport him to a hearing. The judge who
issued both sentencing orders is not the judge who ruled on the instant petition.
2
DeMarco mistakenly suggests that he could relitigate the appropriateness of his amended sentence, which
this Court has already found to be appropriate.
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[6] Affirmed.
Robb, J., and Brown, J., concur.
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