Cyril Washington v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 25, 2018
• Docket: 34A05-1708-CR-1838
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 25 2018, 10:57 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr Kokomo, Indiana Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Cyril Washington, January 25, 2018 Appellant-Defendant, Court of Appeals Case No. 34A05-1708-CR-1838 v. Appeal from the Howard Superior Court State of Indiana, The Honorable George A. Appellee-Plaintiff. Hopkins, Judge Trial Court Cause No. 34D04-1411-F5-152

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018 Page 1 of 5 Case Summary and Issue [1] The trial court revoked Cyril Washington’s placement on in-home detention

and ordered him to serve the remaining portion of his sentence in the Indiana

Department of Correction. Washington appeals, raising the sole issue of

whether the trial court abused its discretion in calculating his credit time. The

State of Indiana cross-appeals, alleging the trial court lacked the authority to

permit Washington to file a belated notice of appeal. Concluding Washington

failed to timely file a notice appeal and the trial court lacked authority to

authorize a belated appeal from his probation revocation, we dismiss this

appeal.

Facts and Procedural History [2] In May of 2015, Washington pleaded guilty to possession of marijuana, a Level

6 felony, and resisting law enforcement, a Class A misdemeanor. The trial

court sentenced Washington to a total of forty-two months—twenty-four

months executed on in-home detention and eighteen months suspended to

probation.

[3] On December 2, 2015, the State filed a notice alleging Washington violated the

terms of his in-home detention and the trial court issued a warrant for his arrest.

Washington was arrested on July 20, 2016. Following a hearing on September

30, 2016, the trial court revoked 183 days of Washington’s suspended sentence

and awarded him 146 days of credit for time served. Washington served the

Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018 Page 2 of 5 remaining portion of this sentence and returned to in-home detention on

October 27, 2016.

[4] On May 1, 2017, the State filed a second notice alleging Washington violated

the terms of his in-home detention and the trial court issued a warrant for his

arrest. On May 5, 2017, Washington was arrested. Washington admitted the

violations and on June 23, 2017, the trial court sentenced Washington as

follows:

[Washington] is ordered to serve the balance of his In-Home and suspended sentence in the Indiana Department of Corrections in the amount of One Thousand, Ninety Five (1,095) days. [Washington] is given credit for in-home in the amount of One Hundred Seventy Five (175) actual days or Three Hundred Fifty (350) days with day for day credit from 10/27/2016 to 3/6/2017 and jail credit in the amount of Fifty (50) actual days of One Hundred (100) days with day for day credit from 5/5/2017 to 6/23/2107 and Five (5) actual days of in-home credit left over from the 9/30/2016 sentencing or Ten (10) days with day for day credit leaving Four Hundred Fifty Nine (459) actual days to serve.

Appellant’s Appendix, Volume 2 at 98. On August 8, 2017, Washington

sought permission to file a belated appeal. The trial court granted

Washington’s motion and he filed a belated notice of appeal on August 15,

2017.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018 Page 3 of 5 [5] Washington alleges the trial court improperly calculated the balance of his

sentence by failing to award him with credit for certain periods of time. The

State cross-appeals arguing belated appeals from orders revoking probation are

not available pursuant to Indiana Post-Conviction Rule 2. We agree with the

State.

[6] To initiate an appeal, a party must file a notice of appeal within thirty days after

entry of a final judgment. Ind. Appellate Rule 9(A)(1). “Unless the Notice of

Appeal is timely filed, the right to appeal shall be forfeited except as provided

by [Indiana Post-Conviction Rule 2].” App. R. 9(A)(5). The trial court

revoked Washington’s placement on in-home detention on June 23, 2017, and

Washington failed to file a notice of appeal within thirty days of that date.

Therefore, Washington’s appeal is untimely and he has forfeited his right to

appeal unless Indiana Post-Conviction Rule 2 provides otherwise.

[7] Indiana Post-Conviction Rule 2(1) permits an “eligible defendant” to petition

the trial court for permission to file a belated notice of appeal of his “conviction

or sentence.” An “eligible defendant” is one who, “but for the defendant’s

failure to do so timely, would have the right to challenge on direct appeal a

conviction or sentence after a trial or plea of guilty by filing a notice of appeal

. . . .” Ind. Post-Conviction Rule 2. The sanction imposed when probation is

revoked does not qualify as a “sentence” under Post-Conviction Rule 2.

Dawson v. State, 938 N.E.2d 841, 845 (Ind. Ct. App. 2010), adopted and

incorporated by reference by 943 N.E.2d 1281 (Ind. 2011).

Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018 Page 4 of 5 [T]he action taken by a trial court in a probation revocation proceeding is not a “sentencing.” The court is merely determining whether there has been a violation of probation and, if so, the extent to which the court’s conditional suspension of the original sentence should be modified and/or whether additional conditions or terms of probation are appropriate.

Id. (quoting Jones v. State, 885 N.E.2d 1286, 1289 (Ind. 2008)). Thus,

Washington is not an “eligible defendant” and his appeal is not properly before

us due to his failure to file a timely appeal.1 We therefore decline to consider

this appeal.

Conclusion [8] Washington failed to file his appeal in a timely fashion and there is no belated

appeal available to him. Accordingly, we dismiss his appeal.

[9] Dismissed.

Crone, J., and Bradford, J., concur.

1 Our supreme court has determined that “[f]orfeiture and jurisdiction are not the same.” In re Adoption of O.R., 16 N.E.3d 965, 970 (Ind. 2014). A party may forfeit its right to an appeal, but that forfeiture does not deprive an appellate court of jurisdiction to entertain the appeal. Id. at 971. A party who has forfeited the right to appeal must present “extraordinarily compelling reasons” why their appeal should be restored. Id. Washington’s brief does not address his failure to timely file an appeal or attempt to present extraordinarily compelling reasons to consider his appeal.

Court of Appeals of Indiana | Memorandum Decision 34A05-1708-CR-1838 | January 25, 2018 Page 5 of 5