David Turner v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 21, 2019
• Docket: 18A-PC-1998
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 21 2019, 8:19 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Curtis T. Hill, Jr. Public Defender of Indiana Attorney General of Indiana

Jay M. Lee Caryn N. Szyper Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David Turner, May 21, 2019 Appellant-Petitioner, Court of Appeals Case No. 18A-PC-1998 v. Appeal from the Orange Circuit Court State of Indiana, The Honorable Steven L. Owen Appellee-Respondent Trial Court Cause No. 59C01-1510-PC-907 59C01-1510-PC-908

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 1 of 9 [1] David Turner appeals the denial of his Indiana Post Conviction Rule 2 motion

to file a belated notice of appeal. Turner wishes to file the belated notice of

appeal in order to argue the trial court improperly denied his motion to

withdraw guilty pleas to dealing in cocaine as a Class B felony 1 and dealing in

methamphetamine as a Class B felony. 2 We affirm.

Facts and Procedural History [2] On November 10, 2014, Turner agreed to plead guilty to Class B felony dealing

in methamphetamine in Cause No. 59C01-1403-FB-212 (“FB-212”) and Class

B felony dealing in cocaine in Cause No. 59C01-1112-FB-79 (“FB-79”). The

agreement called for an aggregate sentence of sixteen years to be served in the

Indiana Department of Correction, eight years on each count to be served

consecutively. In exchange, the State agreed to dismiss five remaining counts

in FB-212, five remaining counts in FB-79, charges against Turner in six other

cases, and a pending petition to revoke probation.

[3] At the change of plea hearing, the trial court placed Turner under oath. Turner

acknowledged he conferred with his attorneys prior to signing the plea

agreement. Turner acknowledged he knew he had a right to a full and complete

trial in front of a jury and he was choosing to resolve the matter through a

1 Ind. Code § 35-48-4-1(a)(2). 2 Ind. Code § 35-48-4-1.1(a)(1).

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 2 of 9 negotiated agreement. Turner testified he committed the crimes, and he denied

being treated for any mental illness or suffering from any mental or emotional

disability. The trial court advised Turner that, if he proceeded with trial and

was found guilty, he would have a right to appeal his conviction. Turner

acknowledged he understood that right and that he was giving up that right by

agreeing to plead guilty.

[4] The trial court also advised Turner that he had the right to be represented by

counsel both at trial and on appeal. The trial court noted Turner had been

represented by five different attorneys and asked Turner if his current

representation forced him to do anything he did not want to do. Turner stated

that they had not. The trial court asked Turner whether he was satisfied with

the representation he received from his attorneys, whether they had been good

attorneys for him, and Turner replied “[v]ery much so, yes sir.” (Appellant

Am. Supp. App. Vol. II at 20.) Turner acknowledged that neither he nor his

family or friends had been offered anything or received any promises besides

what was contained in the plea agreement. Also, Turner denied that he had

been forced or threatened into entering the plea agreement. The trial court then

allowed Turner to plead guilty to Class B felony dealing in cocaine and Class B

felony dealing in methamphetamine.

[5] On January 8, 2015, the date Turner was scheduled to be sentenced, he filed a

Verified Motion to Withdraw Guilty Plea. Therein, Turner asserted “his plea

was involuntary because he was nervous and not in his right mind at the time

the plea was made” and “his plea was involuntary because it was improperly

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 3 of 9 induced by promises.” (Id. at 49.) The trial court addressed Turner’s motion at

the sentencing hearing. The trial court read into the record portions of the

transcript from the change of plea hearing and allowed Turner to present

argument on his motion. Turner argued he pled guilty because a promise had

been made related to the release of the money he posted for bail. The Sheriff of

Orange County testified about the status of Turner’s bond. The State opposed

Turner’s Motion to Withdraw Guilty Plea and noted Turner “has some sort of

buyer[’]s remorse at best and at worst he is just trying to gain [sic] the system.”

(Id. at 143-144.) The trial court denied Turner’s Verified Motion to Withdraw

Guilty Plea, sentenced him in accordance with the plea agreement, and granted

the motions of Turner’s counsel to withdraw their appearances. The trial court

noted “the denial is a final and appealable order, no just cause for delay. This is

a final and appealable sentence.” (Id. at 147.)

[6] Turner did not file a notice of appeal within thirty days of the trial court’s denial

of his motion to withdraw guilty plea. Turner filed a pro se Petition for Post-

Conviction Relief in July 2015. The trial court denied Turner’s Petition but

appointed the public defender’s office to review and consider his Petition. The

public defender’s office appeared on Turner’s behalf and filed a Verified Motion

to Correct Error asserting the trial court erred in denying Turner’s Petition

before the public defender had the opportunity to consult with Turner and

amend the Petition. The trial court granted the Motion to Correct Error and

reinstated Turner’s Petition. Turner subsequently filed a Verified Motion for

Permission to File a Belated Notice of Appeal in July 2018, which the trial

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 4 of 9 court denied without holding a hearing and in an order containing no findings

or conclusions.

Discussion and Decision [7] Generally, we will not reverse a trial court’s decision to deny permission to file

a belated notice of appeal unless there is an abuse of discretion. Townsend v.

State, 843 N.E.2d 972, 974 (Ind. Ct. App. 2006), trans. denied. However, “when

the allegations contained in the motion itself provide the only basis in support

of a motion, we review the decision de novo.” Id. Therefore, as the trial court

denied Turner’s motion without hearing, we review this matter de novo. See id.

[8] The Indiana Appellate Rules give a litigant thirty days to initiate an appeal of a

final judgment. Ind. Appellate Rule 9(A)(1). A criminal defendant who does

not file an appeal within that timeframe may seek permission from the trial

court to file a belated appeal pursuant to Indiana Post-Conviction Rule 2. Ind.

App. R. 9(A)(5). Post-Conviction Rule 2(1) provides that a trial court shall

permit the defendant to file a belated notice of appeal if the defendant

demonstrates:

(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.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 5 of 9 A defendant is required to make each showing by a preponderance of the

evidence. Amphonephong v. State, 32 N.E.3d 825, 830 (Ind. Ct. App. 2015).

There are no set standards to determine whether a defendant has been diligent

in pursuing permission to file a belated notice of appeal. Id. We look to “the

defendant’s level of 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 [that]

contributed to the delay.” Id. (internal quotation marks omitted).

[9] Turner argues it was not his fault that he failed to timely file a notice of appeal

because the trial court did not adequately explain his appellate rights or describe

the process by which he might perfect his rights in regard to the denial of his

motion to withdraw his guilty plea. Turner acknowledges he was advised of his

right to appeal, but he argues the trial court erred by advising Turner of his

appeal right deep within the sentencing statement, by not advising Turner of the

process to perfect an appeal, and by dismissing his court appointed trial

counsel. Notably, Turner does not cite any case law to support the proposition

that the notice he received was inadequate.

[10] In Jackson v. State, we reversed and remanded for hearing on a motion to file

belated notice of appeal when the limited record before us made it apparent the

trial court failed to advise the defendant of his right to appeal his sentence and

expressly advised him he could not challenge his conviction or sentence on

direct appeal. 853 N.E.2d 138, 141 (Ind. Ct. App. 2006). In contrast to Jackson,

the record in this case demonstrates Turner was advised of his right to appeal

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 6 of 9 the denial of his motion to withdraw guilty plea. (Appellant Am. Supp. App.

Vol. II at 147.) Turner has not demonstrated the timing of the statement is

relevant to our analysis.

[11] Turner also argues he was diligent in requesting permission to file a belated

notice of appeal because he filed a pro se petition for post-conviction relief

within six months and any further delay should not be attributable to him, even

though the motion to file a belated appeal was filed three and a half years after

he was sentenced. However, our Indiana Supreme Court has held that a

petition under Post-Conviction Rule 2 would have been unsuccessful when the

defendant testified that he had read and understood the plea agreement, which

stated the defendant retained the right to directly appeal his sentence, the

defendant failed to timely appeal his sentence, and the defendant had

considerable prior experience with the criminal justice system. Hill v. State, 960

N.E.2d 141, 150 (Ind. 2012), reh’g denied.

[12] Like the defendant in Hill, Turner was notified regarding his appellate rights

and had numerous past encounters with the legal system. The trial court

notified Turner at the sentencing hearing that he could appeal the denial of his

motion to withdraw guilty plea. Additionally, Turner is a middle-aged adult

male with an extensive criminal history. He was born in 1971. Turner

accumulated six misdemeanor convictions between 1989 and 1991, and he

received his first felony conviction for Class D felony theft in 1992. Turner

continued to pursue a criminal lifestyle, attaining fifteen additional

misdemeanor and five additional felony convictions between 1992 and 2005.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 7 of 9 Thus, he has some familiarity with the operation of the legal system and should

be aware of the importance of timely initiating an appeal. Therefore,

considering all these circumstances, we cannot say Turner was diligent in

requesting permission to file a belated notice of appeal. See Witt v. State, 867

N.E.2d 1279, 1282 (Ind. 2007) (holding defendant was not diligent in

requesting permission to file a belated notice of appeal when request came nine

and a half years after sentencing).

[13] Neither does the record indicate the trial court erred in denying Turner’s

motion to withdraw his guilty plea. The denial of a motion to withdraw a

guilty plea will be reversed only if the trial court abused its discretion in denying

the motion. Jefferies v. State, 966 N.E.2d 773, 777 (Ind. Ct. App. 2012), trans.

denied. “In determining whether a trial court has abused its discretion in

denying a motion to withdraw a guilty plea, we examine the statements made

by the defendant at the guilty plea hearing to decide whether the plea was

offered ‘freely and knowingly.’” Id. (quoting Brightman v. State, 758 N.E.2d 41,

44 (Ind. 2001)).

[14] Here, the record demonstrates Turner’s statements at the change of plea hearing

were offered freely and knowingly. Prior to entry of his plea, Turner testified he

was satisfied with his representation, no promises had been made to him that

were not memorialized in the plea agreement, and he was not suffering from

any mental or emotional disability. Turner answered the trial court’s questions

at the change of plea hearing directly and without equivocation. Thus, there is

no evidence that the trial court abused its discretion in denying Turner’s motion

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 8 of 9 to withdraw his guilty plea. See Coomer v. State, 652 N.E.2d 60, 63 (Ind. 1995)

(holding trial court was not required to grant motion to withdraw guilty plea

considering defendant’s clear testimony, prior to entry of plea, that he was not

pressured into pleading guilty).

Conclusion [15] Turner has failed to demonstrate he was not at fault for failing to timely file a

notice of appeal and he was diligent in filing his motion for belated appeal.

Neither does the record suggest the trial court abused its discretion by denying

Turner’s motion to withdraw his guilty plea. Therefore, we affirm the trial

court’s denial of his motion.

[16] Affirmed.

Baker, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-PC-1998 | May 21, 2019 Page 9 of 9