Dalvonte Jones v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 22, 2020
• Docket: 18A-PC-2061
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 22 2020, 6:50 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.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Dalvonte Jones Curtis T. Hill, Jr. Michigan City, Indiana Attorney General of Indiana Jesse R. Drum Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dalvonte Jones, January 22, 2020 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-2061 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt M. Eisgruber, Appellee-Respondent. Judge The Honorable Steven J. Rubick, Magistrate Trial Court Cause No. 49G01-1611-PC-42909

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2061 | January 22, 2020 Page 1 of 4 Case Summary [1] Dalvonte Jones (“Jones”) attempts to belatedly appeal the trial court’s denial of

his petition for post-conviction relief. We address only the dispositive issue of

whether his appeal should be dismissed as untimely.

[2] We dismiss.

Facts and Procedural History [3] In 2014, Jones was found guilty of murder and sentenced accordingly. This

court affirmed his conviction on direct appeal. Jones v. State, 38 N.E.3d 742

(Ind. Ct. App. 2015), trans. denied. On October 11, 2016, Jones filed a petition

for post-conviction relief (“PCR”). The trial court denied Jones’s PCR petition

on May 15, 2018. On July 31, 2018, Jones filed a “Request for Leave to File a

Belated Motion to Correct Error” and a “Belated Motion to Correct Error.”

App. at 15. On August 2, 2018, the trial court denied Jones’s belated motion to

correct error without issuing a ruling on Jones’s request for leave to file that

motion.

[4] Jones filed his notice of appeal on August 28, 2018. The State filed a motion to

dismiss Jones’s appeal as untimely, and the motions panel of this court denied

the State’s motion to dismiss.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2061 | January 22, 2020 Page 2 of 4 Discussion and Decision [5] The State continues to assert that Jones’s appeal should be dismissed as

untimely. We agree.1

[6] Generally, appeals from final judgments—including appeals from PCR

decisions—must be filed within thirty days after the entry of final judgment or

else the right to appeal is forfeited. Ind. Appellate Rule 9(A)(1), (5). The Post-

Conviction Relief Rules provide an exception: “Post-Conviction Rule 2

provides an avenue by which certain criminal defendants may pursue a direct

appeal—from a conviction or sentence—after the time for filing a notice of

appeal has expired.” Core v. State, 122 N.E.3d 974, 977 (Ind. Ct. App. 2019).

However, our Supreme Court has made it clear that the right to seek permission

to file a belated appeal2 under that PCR rule applies only to direct appeals, not

appeals of PCR decisions. Id. (citing Hill v. State, 960 N.E.2d 141, 148 (Ind.

2012), and Howard v. State, 653 N.E.2d 1389, 1390 (Ind. 1995)). The right to

seek permission to file a belated motion to correct error under PCR Rule 2(2)

also applies only to direct appeals, not PCR actions. Sceifers v. State, 663 N.E.2d

1191, 1192 (Ind. Ct. App. 1996), trans. denied. In short, there is no Indiana rule

1 The motions panel ruled that Jones’s appeal was timely because it was filed within thirty days of the date the trial court denied Jones’s belated motion to correct error. However, the motions panel did not address the fact that this is not a direct appeal but an appeal from a final PCR decision. And it is well-settled that we may reconsider a decision of our motions panel. E.g., Treacy v. State, 953 N.E.2d 634, 636 n.2 (Ind. Ct. App. 2011), trans. denied. 2 We note that Jones never sought or obtained permission from the trial court to file a belated notice of appeal per the procedures outlined in PCR Rule 2(1).

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2061 | January 22, 2020 Page 3 of 4 allowing for a belated motion to correct error or a belated appeal of a final PCR

judgment. Id.; Core, 122 N.E.3d at 977. Thus, we have held that a post-

conviction petitioner who fails to timely file a notice of appeal of a final PCR

judgment has “permanently extinguished his opportunity to appeal” that

judgment. Core, 122 N.E.3d at 977. And, while this court has authority to

restore a forfeited right of appeal if there are “extraordinarily compelling

reasons to do so,” Jones has pointed to no such extraordinarily compelling

reasons and we find none. Id. at 977 (citing In re Adoption of O.R., 16 N.E.3d

965, 971 (Ind. 2014)).

[7] The trial court denied Jones’s PCR petition on May 15, 2018. As no belated

motion to correct error (which would extend the time for filing a notice of

appeal) was authorized by the rules, Jones was required to file his Notice of

Appeal within thirty days of May 15, 2018. He did not do so.3 Therefore, he

forfeited his right to appeal the denial of his PCR petition, and we dismiss this

appeal.

[8] Dismissed.

Kirsch, J., and Mathias, J., concur.

3 We recognize that Jones appeals pro se. However, it is well settled that pro se litigants are held to the same legal standards as licensed attorneys and must be prepared to accept the consequences of their failure to follow the established rules of procedure. Id.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-2061 | January 22, 2020 Page 4 of 4