Timothy Strowmatt v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 15 2019, 8:10 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jon J. Olinger Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Strowmatt, July 15, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-519
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jerome Frese,
Appellee-Plaintiff Judge
Trial Court Cause No.
71D02-0404-FC-119
Baker, Judge.
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[1] Timothy Strowmatt appeals the trial court’s denial of his petition for permission
to file a belated notice of appeal, arguing that the trial court erred by not
following Indiana Post-Conviction Rule 2(1)(a). Finding no error, we affirm.
[2] On December 13, 2004, the trial court found Strowmatt guilty of two counts of
attempted criminal confinement and determined that he was an habitual
offender. On January 5, 2005, the trial court sentenced Strowmatt to twenty-
eight years in the Department of Correction. Thereafter, Strowmatt timely
appealed his sentence, which we affirmed on September 9, 2005. See Strowmatt
v. State, Cause No. 71A03-0501-CR-22 (Ind. Ct. App. Sept. 9, 2005). Our
Supreme Court denied transfer.
[3] Then, on February 8, 2006, Strowmatt filed a petition for post-conviction relief,
arguing that he received the ineffective assistance of appellate counsel. The
post-conviction court denied his petition on September 11, 2009. Strowmatt
then appealed the post-conviction court’s ruling, which we likewise affirmed.
See Strowmatt v. State, Cause No. 71A05-0910-PC-587 (Ind. Ct. App. June 18,
2010). Once again, our Supreme Court denied transfer.
[4] Next, Strowmatt filed a federal petition for writ of habeas corpus, which the
district court denied. See Strowmatt v. Superintendent, Cause No. 3:11-cv-003
(N.D. Ind. Sept. 26, 2011). On February 7, 2012, Strowmatt filed a petition for
writ of habeas corpus in the Henry Circuit Court, which was ultimately
transferred to the St. Joseph Superior Court. The trial court there denied his
petition, ruling that it was simply an additional petition for post-conviction
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relief. This Court affirmed that decision. See Strowmatt v. State, Cause No.
71A03-1402-PC-70 (Ind. Ct. App. July 21, 2014). Thereafter, Strowmatt filed
numerous other motions to correct error and to reconsider sentencing along
with petitions for transfer and removal, all of which were denied.
[5] Finally, on February 5, 2018, Strowmatt filed a verified petition for permission
to file a belated notice of appeal to challenge his original sentence. In that
petition, Strowmatt admitted that he had filed a timely notice of appeal after his
January 5, 2005, sentencing hearing, but argued that his appellate counsel had
failed to raise sentencing errors during his direct appeal. The trial court denied
his petition, and Strowmatt now appeals.
[6] “[T]he decision of whether to grant or deny a petition for permission to file a
belated notice of appeal is a matter within the discretion of the trial court.”
George v. State, 862 N.E.2d 260, 264 (Ind. Ct. App. 2006). However, where the
trial did not conduct a hearing on the motion and where the allegations
contained in the motion itself provide the only basis in support of a motion, we
review the decision de novo. Id.
[7] Indiana Post-Conviction Rule 2(1)(a) states, in pertinent part, the following:
(a) Required Showings. 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;
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(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.
(Emphasis added).
[8] Thus, in order to receive permission to file a belated notice of appeal, the
defendant must show, at a minimum, that he failed to file a timely notice of
appeal. In his verified petition, Strowmatt admitted that he had filed a timely
notice of appeal after his January 5, 2005, sentencing hearing. Indeed, this
Court considered and ruled on Strowmatt’s appeal on the merits. Therefore,
Strowmatt has not met the threshold showing to prove that he was entitled to
file a belated notice of appeal. And, given the long procedural history of
Strowmatt’s case, this petition seems to be nothing more than an attempt by
Strowmatt to have another bite at the litigation apple. In sum, the trial court did
not err.
[9] The judgment of the trial court is affirmed.
Najam, J., and Robb, J., concur.
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