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Holland v. State - No. 49A04-1004-CR-218, 2010 Ind. App. Unpub. LEXIS 1556 (Ct. App. Nov. 8, 2010)

Rule:

A petition for permission to file a belated notice of appeal may be granted where the defendant was without fault for failing to file a timely notice of appeal and where the defendant was diligent in requesting permission to file the belated notice of appeal. The defendant bears the burden to prove both of these requirements by a preponderance of the evidence. Post-Conviction Rule 2(1) also requires that the trial court consider these two factors in deciding whether to grant or deny a petition to file a belated notice of appeal and that the trial court must grant the petition where it finds that the defendant has established the two factors.

Facts:

Defendant Matthew Holland appealed his guilty plea to and conviction in Indiana state court for Class B felony attempted aggravated battery, Class B felony criminal confinement, and Class B felony prisoner possessing a dangerous device or material, all in connection with his alleged assault on a corrections officer with a "shank." On appeal, Holland contended that his convictions violated the constitutional prohibitions against double jeopardy and that his 30-year sentence was inappropriate in light of the nature of his offenses and his character. Additionally, the State cross-appealed the trial court's order granting Holland's petition requesting permission to file a belated notice of appeal. Holland claimed that he was not at fault for the delay and that after learning that he could challenge his sentence, he had been diligent in trying to do so. 

Issue:

Was it proper for the trial court to grant Holland's belated notice of appeal?

Answer:

No.

Conclusion:

The state appellate court concluded that Holland failed to establish that he was diligent in requesting permission to file the belated notice of appeal. Thus, it reversed the trial court's order granting Holland's petition and dismissed Holland's appeal. It was undisputed that the trial court did not advise Holland of his right to appeal his aggregate 30-year sentence following his guilty plea. However, the fact that the trial court failed to advise Holland of his right to appeal his sentence following his guilty plea did not guarantee Holland an automatic right to file a belated notice of appeal. The court held that Holland failed to establish when he learned of his right to appeal his sentence and how he had been diligent in trying to challenge his sentence since that time.

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