MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 11 2017, 9:08 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE David Streeter Curtis T. Hill Pendleton, Indiana Attorney General of Indiana
Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Streeter, May 11, 2017 Appellant-Defendant, Court of Appeals Case No. 44A04-1605-CR-1179 v. Appeal from the LaGrange Superior Court State of Indiana, The Honorable Lisa M. Bowen- Appellee-Plaintiff Slaven Trial Court Cause No. 44D01-0011-CF-49
May, Judge.
[1] David Streeter, pro se, appeals the trial court’s denial of his Verified Petition for
Permission to File Belated Notice of Appeal and For Appointment of Counsel
Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017 Page 1 of 7 at County Expense. Because Streeter did not demonstrate he (1) was not at
fault for the failure to timely file a notice of appeal and (2) was diligent in
requesting to file a belated direct appeal, the trial court did not err in denying
his petition for permission to file a belated direct appeal.1 Nor has Streeter
demonstrated the trial court was required to appoint counsel to assist Streeter
with his Post-Conviction Rule 2 petition or to hold a hearing prior to denying
his petition. We therefore affirm.
Facts and Procedural History [2] Streeter pled guilty on April 3, 2002, to Class A felony child molesting,2 two
counts of Class C felony child molesting,3 and to being a repeat sexual
offender,4 in exchange for the State’s agreement to concurrent sentences on the
three counts of child molesting. On May 20, 2002, the trial court sentenced
Streeter to fifty years on the Class A felony, to be served concurrent with two
concurrent eight-year sentences for the Class C felonies and consecutive to a
1 Streeter’s brief also provides argument on five issues regarding the merits of his underlying convictions and sentence: double jeopardy, inappropriate sentence, ineffective assistance of counsel, the constitutionality of his repeat-offender sentence enhancement, and an alleged failure to have him undergo psychological testing. However, the only issues before us are those pertinent to whether the trial court erred when denying his petition to file a belated notice of appeal, and the merits of any underlying issues are not relevant to that determination. See Indiana Post-Conviction Rule 2(1) (defining requirements for filing belated notice of appeal, and those requirements do not include demonstration of meritorious issues). Thus, we do not address those five issues from Streeter’s brief. 2 Ind. Code § 35-42-4-3 (1998). 3 Ind. Code § 35-42-4-3 (1998). 4 Ind. Code § 35-50-2-14 (1999).
Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017 Page 2 of 7 ten-year enhancement for Streeter being a repeat sexual offender. Thus,
Streeter’s aggregate sentence was sixty years. At sentencing, Streeter was
advised of his right to file a direct appeal of his sentence and of his right to
counsel on that appeal.
[3] Streeter did not file a direct appeal. In 2006, Streeter filed a Petition for Post-
Conviction Relief that was denied in 2011, and we affirmed that denial on
appeal. See Streeter v. State, Cause No. 44A04-1110-PC-640 (Ind. Ct. App. May
28, 2013), trans. denied. In April 2014, Streeter filed a motion to correct
erroneous sentence, which was denied by the trial court in August 2014, and we
affirmed the trial court’s denial in October 2015. Streeter v. State, Cause No.
44A03-1408-CR-291 (Ind. Ct. App. October 2, 2015), trans. denied.
[4] On December 28, 2015, Streeter filed the verified petition at issue, claiming he
was not competent to plead guilty, he had been diligent in pursuing a direct
appeal, and he was entitled to counsel. The trial court forwarded Streeter’s
petition to the State Public Defender and, thereafter, the Public Defender filed a
Notice of Non-Representation. The State objected to Streeter’s requests for
relief and, on April 22, 2016, the trial court denied his petition.
Discussion and Decision I. Denial of Petition [5] Indiana Post-Conviction Rule 2(1) governs belated notice of appeals. It
provides:
Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017 Page 3 of 7 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.
Defendants who seek relief under this Rule have “the burden of proving by a
preponderance of the evidence” they: (1) were without fault in the failure to file
timely, and (2) were diligent in requesting permission to file belated notices of
appeal. Moshenek v. State, 868 N.E.2d 419, 423-24 (Ind. 2007), reh’g denied.
[6] A trial court’s decision whether to grant permission to file a belated notice of
appeal is reviewed for an abuse of discretion. Id. at 424-25. “When the trial
court holds a hearing, we defer to [its] discretion in weighing the evidence and
judging witness credibility.” Mead v. State, 875 N.E.2d 304, 307 (Ind. Ct. App.
2007). However, when no hearing is held, “the only basis for its decision is the
paper record attached to the petition.” Id. In such a circumstance, our review
of the trial court’s decision is de novo. Cruite v. State, 853 N.E.2d 487, 490 (Ind.
Ct. App. 2006), trans. denied. As such, we owe the trial court’s findings “no
deference.” Amphonephong v. State, 32 N.E.3d 825, 831 (Ind. Ct. App. 2015); see
also Moshenek, 868 N.E.2d at 424 (“The Court of Appeals owed no deference to
Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017 Page 4 of 7 the trial court’s factual determinations because they were based on a paper
record.”).
[7] There exists “substantial room for debate as to what constitutes diligence and
lack of fault” for purposes of Post-Conviction Rule 2. Moshenek, 868 N.E.2d at
424. Some factors that may be considered are “the defendant’s awareness of his
procedural remedy; age; education; familiarity with the legal system; whether
the defendant was informed of his appellate rights; and whether he committed
an act or omission which contributed to the delay.” Ricks v. State, 898 N.E.2d
1277, 1280 (Ind. Ct. App. 2009). The trial court determined Streeter had not
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 11 2017, 9:08 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE David Streeter Curtis T. Hill Pendleton, Indiana Attorney General of Indiana
Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Streeter, May 11, 2017 Appellant-Defendant, Court of Appeals Case No. 44A04-1605-CR-1179 v. Appeal from the LaGrange Superior Court State of Indiana, The Honorable Lisa M. Bowen- Appellee-Plaintiff Slaven Trial Court Cause No. 44D01-0011-CF-49
May, Judge.
[1] David Streeter, pro se, appeals the trial court’s denial of his Verified Petition for
Permission to File Belated Notice of Appeal and For Appointment of Counsel
Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017 Page 1 of 7 at County Expense. Because Streeter did not demonstrate he (1) was not at
fault for the failure to timely file a notice of appeal and (2) was diligent in
requesting to file a belated direct appeal, the trial court did not err in denying
his petition for permission to file a belated direct appeal.1 Nor has Streeter
demonstrated the trial court was required to appoint counsel to assist Streeter
with his Post-Conviction Rule 2 petition or to hold a hearing prior to denying
his petition. We therefore affirm.
Facts and Procedural History [2] Streeter pled guilty on April 3, 2002, to Class A felony child molesting,2 two
counts of Class C felony child molesting,3 and to being a repeat sexual
offender,4 in exchange for the State’s agreement to concurrent sentences on the
three counts of child molesting. On May 20, 2002, the trial court sentenced
Streeter to fifty years on the Class A felony, to be served concurrent with two
concurrent eight-year sentences for the Class C felonies and consecutive to a
1 Streeter’s brief also provides argument on five issues regarding the merits of his underlying convictions and sentence: double jeopardy, inappropriate sentence, ineffective assistance of counsel, the constitutionality of his repeat-offender sentence enhancement, and an alleged failure to have him undergo psychological testing. However, the only issues before us are those pertinent to whether the trial court erred when denying his petition to file a belated notice of appeal, and the merits of any underlying issues are not relevant to that determination. See Indiana Post-Conviction Rule 2(1) (defining requirements for filing belated notice of appeal, and those requirements do not include demonstration of meritorious issues). Thus, we do not address those five issues from Streeter’s brief. 2 Ind. Code § 35-42-4-3 (1998). 3 Ind. Code § 35-42-4-3 (1998). 4 Ind. Code § 35-50-2-14 (1999).
Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017 Page 2 of 7 ten-year enhancement for Streeter being a repeat sexual offender. Thus,
Streeter’s aggregate sentence was sixty years. At sentencing, Streeter was
advised of his right to file a direct appeal of his sentence and of his right to
counsel on that appeal.
[3] Streeter did not file a direct appeal. In 2006, Streeter filed a Petition for Post-
Conviction Relief that was denied in 2011, and we affirmed that denial on
appeal. See Streeter v. State, Cause No. 44A04-1110-PC-640 (Ind. Ct. App. May
28, 2013), trans. denied. In April 2014, Streeter filed a motion to correct
erroneous sentence, which was denied by the trial court in August 2014, and we
affirmed the trial court’s denial in October 2015. Streeter v. State, Cause No.
44A03-1408-CR-291 (Ind. Ct. App. October 2, 2015), trans. denied.
[4] On December 28, 2015, Streeter filed the verified petition at issue, claiming he
was not competent to plead guilty, he had been diligent in pursuing a direct
appeal, and he was entitled to counsel. The trial court forwarded Streeter’s
petition to the State Public Defender and, thereafter, the Public Defender filed a
Notice of Non-Representation. The State objected to Streeter’s requests for
relief and, on April 22, 2016, the trial court denied his petition.
Discussion and Decision I. Denial of Petition [5] Indiana Post-Conviction Rule 2(1) governs belated notice of appeals. It
provides:
Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017 Page 3 of 7 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.
Defendants who seek relief under this Rule have “the burden of proving by a
preponderance of the evidence” they: (1) were without fault in the failure to file
timely, and (2) were diligent in requesting permission to file belated notices of
appeal. Moshenek v. State, 868 N.E.2d 419, 423-24 (Ind. 2007), reh’g denied.
[6] A trial court’s decision whether to grant permission to file a belated notice of
appeal is reviewed for an abuse of discretion. Id. at 424-25. “When the trial
court holds a hearing, we defer to [its] discretion in weighing the evidence and
judging witness credibility.” Mead v. State, 875 N.E.2d 304, 307 (Ind. Ct. App.
2007). However, when no hearing is held, “the only basis for its decision is the
paper record attached to the petition.” Id. In such a circumstance, our review
of the trial court’s decision is de novo. Cruite v. State, 853 N.E.2d 487, 490 (Ind.
Ct. App. 2006), trans. denied. As such, we owe the trial court’s findings “no
deference.” Amphonephong v. State, 32 N.E.3d 825, 831 (Ind. Ct. App. 2015); see
also Moshenek, 868 N.E.2d at 424 (“The Court of Appeals owed no deference to
Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017 Page 4 of 7 the trial court’s factual determinations because they were based on a paper
record.”).
[7] There exists “substantial room for debate as to what constitutes diligence and
lack of fault” for purposes of Post-Conviction Rule 2. Moshenek, 868 N.E.2d at
424. Some factors that may be considered are “the defendant’s awareness of his
procedural remedy; age; education; familiarity with the legal system; whether
the defendant was informed of his appellate rights; and whether he committed
an act or omission which contributed to the delay.” Ricks v. State, 898 N.E.2d
1277, 1280 (Ind. Ct. App. 2009). The trial court determined Streeter had not
demonstrated he was entitled to file a belated notice of appeal and, based on
our de novo review of the record, we agree.
[8] Streeter admits he was advised of his right to file a direct appeal at his
sentencing hearing. At that time, he was thirty-eight years old and had been
convicted of at least one other crime. He subsequently filed both a petition for
post-conviction relief under Post-Conviction Rule 1 and a motion to correct
erroneous sentence under Post-Conviction Rule 2. Streeter has not provided
evidence to demonstrate by a preponderance of the evidence that he was not
responsible for his failure to timely file a notice of appeal.
[9] Nor has Streeter demonstrated he was diligent in pursuing relief. Factors
relevant to a diligence inquiry include the overall passage of time, the extent to
which the defendant was aware of relevant facts, and the degree to which
delays are attributable to other parties. Moshenek, 868 N.E.2d at 423. “When
Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017 Page 5 of 7 the overall time stretches into decades, a belated appeal becomes particularly
problematic because of the risk that significant problems will be encountered in
any retrial due to unavailable evidence or witnesses or failing memories.” Id.
Here, Streeter waited thirteen years to pursue a direct appeal after being advised
of his right to appeal. His only explanation for that delay is that he was
pursuing other avenues of relief because that is what other inmates had told him
to do. In light of the fact the trial court advised him of his right to appeal, we
find that explanation inadequate to justify a thirteen-year delay.
II. Procedural Challenges [10] Finally, we find no merit to Streeter’s claims that, before the trial court could
deny his petition, it was required to hold a hearing and appoint counsel to assist
him. Post-Conviction Rule 2 does not require the trial court hold a hearing. See
P.-C. R. 2(1)(d) (“If a hearing is held . . . it shall be conducted according to Ind.
Post-Conviction Rule 1(5).”) (emphasis added); Green v. State, 593 N.E.2d 1237,
1238 (Ind. Ct. App. 1992) (“The rule does not require the court to conduct a
hearing….”), trans. denied. The trial court referred Streeter’s petition to the State
Public Defender, who declined to represent him and who does not have a duty
to represent a defendant if its review of the record leads it to determine the Rule
“2 petition is not meritorious or in the interest of justice.” Kling v. State, 837
N.E.2d 502, 508 (Ind. 2005).
Conclusion
Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017 Page 6 of 7 [11] Streeter has failed to convince us the trial court committed error when denying
his petition to file a belated notice of appeal. Accordingly, we affirm.
[12] Affirmed.
Najam, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 44A04-1605-CR-1179 | May 11, 2017 Page 7 of 7