Hilton Hazelwood v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 31, 2016
• Docket: 82A01-1511-CR-2039
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Aug 31 2016, 9:28 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Terry A. White Gregory F. Zoeller Evansville, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Hilton Hazelwood, August 31, 2016 Appellant-Defendant, Court of Appeals Case No. 82A01-1511-CR-2039 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Kelli E. Fink, Appellee-Plaintiff. Magistrate Trial Court Cause No. 82C01-1504-F5-002093

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 82A01-1511-CR-2039 | August 31, 2016 Page 1 of 11 Statement of the Case [1] In this discretionary interlocutory appeal, Hilton Hazelwood (“Hazelwood”)

attempts to appeal the trial court’s interlocutory order, which granted in part

and denied in part his motion to suppress evidence. Because Hazelwood failed

to timely file his notice of appeal after this Court accepted jurisdiction over this

discretionary interlocutory appeal and because we find no extraordinary

compelling reasons to restore his forfeited right to this interlocutory appeal, we

dismiss the appeal.

[2] We dismiss.1

Issue Whether this discretionary interlocutory appeal should be dismissed because Hazelwood failed to timely file a notice of appeal.2

Facts [3] Because of our disposition of this appeal, we will not delve into detailed facts

surrounding the events leading up to the search of Hazelwood’s house. On

April 8, 2015, around midnight, Evansville police officers—after smelling the

1 In a separate opinion, issued contemporaneously with this opinion, we also dismiss the discretionary interlocutory appeal of Hazelwood’s wife and co-defendant, Beth Bailey. See Bailey v. State, 82A01-1511-CR- 2084. 2 As part of his appeal, Hazelwood challenged the trial court’s partial denial of his motion to suppress. As part of the State’s cross-appeal, the State raised this challenge to the timeliness of the notice of appeal and also raised a challenge to the trial court’s partial grant of Hazelwood’s suppression motion. Because we conclude that the State’s argument regarding the timeliness of Hazelwood’s notice of appeal is dispositive, we address only that issue.

Court of Appeals of Indiana | Memorandum Decision 82A01-1511-CR-2039 | August 31, 2016 Page 2 of 11 “heavy” odor of “green” 3 or raw marijuana emanating from the house of

Hazelwood and his wife, Beth Ann Bailey (“Bailey”)—went to the house to

conduct a “knock and talk.” (Tr. 10, 14). When the officers went onto the

porch of the house, the odor of the green marijuana “intensified[.]” (Tr. 13).

Hazelwood and Bailey, who came outside their house and onto the porch,

declined to consent to a search of their home. The officers placed Hazelwood

and Bailey in handcuffs, informed them that they were going to obtain a search

warrant, and took them inside the house. During a protective sweep of the

house, officers searched the basement and discovered over fifty marijuana

plants and grow lights. When filing the affidavit for a search warrant, the

officers relied on the smell of marijuana and the marijuana found in the

basement during the protective sweep. The Honorable Richard D’Amour

signed the search warrant at 2:30 a.m. on April 9, 2015. Upon execution of the

search warrant, the officers found some marijuana plants and shears used to

trim the plants into a form in preparation for sale. The officers also found some

marijuana smoking pipes.

[4] The State charged Hazelwood with Count I, Level 5 felony dealing in

marijuana (based on the amount of marijuana weighing at least ten pounds);4

3 During the suppression hearing, an officer testified that “green” marijuana was “unburned, unsmoked . . . marijuana . . . from a plant or like something that’s been freshly packaged.” (Tr. 11). 4 IND. CODE § 35-48-4-10.

Court of Appeals of Indiana | Memorandum Decision 82A01-1511-CR-2039 | August 31, 2016 Page 3 of 11 Count II, Level 6 felony maintaining a common nuisance; 5 and Count III, Class

B misdemeanor possession of marijuana (based on growing or cultivating

marijuana).6 The State also charged Bailey with these same three charges.

[5] Subsequently, on May 27, 2015, Hazelwood filed a motion to suppress the

marijuana seized by police. Hazelwood asserted that the protective sweep

search violated his rights against unreasonable search and seizure under both

the United States and Indiana Constitutions. He also argued that the search

warrant was “deficient” and “illegal” because it was “predicated upon evidence

unlawfully obtained by a trespassing police officer.” (App. 11). That same day,

Bailey filed an identical motion to suppress.7

[6] On June 18, 2015, the trial court held a consolidated hearing on Hazelwood’s

and Bailey’s suppression motions. Thereafter, on September 17, 2015, the trial

court issued a joint order in which it granted in part and denied in part the

suppression motions (“interlocutory order”). Specifically, the trial court’s

interlocutory order provided as follows:

Officers initially went to the residence of the defendants [Bailey and Hazelwood] after they identified the odor of marijuana coming from the residence. The officer then conducted a “knock and talk,” at which time the defendants declined to give consent

5 I.C. § 35-48-4-13. This statute has since been repealed, effective July 1, 2016. See P.L. 59-2016, § 8. A charge for maintaining a common nuisance is now codified under INDIANA CODE § 35-45-1-5. 6 I.C. § 35-48-4-11. 7 Hazelwood and Bailey were represented by the same attorney and continue to be so on appeal.

Court of Appeals of Indiana | Memorandum Decision 82A01-1511-CR-2039 | August 31, 2016 Page 4 of 11 for officers to enter the residence. Officers then handcuffed the defendants, entered the home, placed the defendants on the couch, and conducted a protective sweep of the home. The officers did not have a search warrant when they entered the home, and there were no exigent circumstances to justify a warrantless entry into the home. Any observations made or evidence found by the officers during this warrantless entry and the subsequent protective sweep are suppressed.

Law enforcement officers then obtained a search warrant for the residence based on their initial smell of marijuana and observations made during the initial entry and protective sweep. Probable cause to search the residence existed even without the evidence that the court has ordered suppressed because the search warrant was also based on officers’ testimony that they smelled the odor of marijuana and were able to identify the odor as coming from the residence of the defendants.

Therefore, any evidence first observed during the initial entry and protective sweep into the residence is ordered suppressed. Any other evidence which was first observed only after the execution of the search warrant is not suppressed.

(App. 7-8).

[7] On October 14, 2015, Hazelwood filed a motion to certify the interlocutory

order for appeal. Seven days later, the trial court granted Hazelwood’s motion

and certified its order for interlocutory appeal. Thereafter, on November 16,

2015, Hazelwood filed a motion with this Court seeking permission to file an

interlocutory appeal. On December 18, 2015, our Court granted Hazelwood’s

Court of Appeals of Indiana | Memorandum Decision 82A01-1511-CR-2039 | August 31, 2016 Page 5 of 11 motion and accepted jurisdiction over this discretionary interlocutory appeal.8

Our order specified that Hazelwood was required to comply with Appellate

Rule 14(B)(3), which required, in relevant part, that Hazelwood file his notice

of appeal “within fifteen (15) days of the Court of Appeals’ order accepting

jurisdiction over the interlocutory appeal.” Therefore, Hazelwood’s notice of

appeal was due on or before January 4, 2016.9 Hazelwood filed his notice of

appeal on January 5, 2016.

[8] After Hazelwood filed his Appellant’s Brief, the State filed a motion to dismiss

his interlocutory appeal, arguing that he had failed to timely file his notice of

appeal. Specifically, the State argued that Hazelwood’s notice of appeal was

one day late and that there were no “extraordinary compelling reasons” to

excuse his failure to timely file his notice of appeal. (State’s Motion to Dismiss

at 2).

[9] Hazelwood filed a response in opposition to the State’s motion. He

acknowledged that our Court issued its order on December 18, 2015 and that he

was required to file his notice of appeal within fifteen days of that order, or in

this case, by January 4, 2016. To excuse his failure, he argued that “the Clerk

of the Court did not provide notice of the Court’s Order until 4:01 P.M. . . .”

(Hazelwood’s Opposition Motion at 1). Hazelwood contended that the time of

8 The file stamp for our Court’s December 18, 2015 order indicates that the order was entered at 3:28 p.m. 9 Fifteen days from December 18, 2015 was Saturday January 2, 2016; however, because that day was a non- business day, the due date for the notice of appeal was Monday January 4, 2016. See Ind. Appellate Rule 25.

Court of Appeals of Indiana | Memorandum Decision 82A01-1511-CR-2039 | August 31, 2016 Page 6 of 11 4:01 p.m. was “CST” or Central Standard Time, which would then make it at

5:01 “EST” or Eastern Standard Time and “after the close of business on

Friday, December 18, 2015.” Id. Hazelwood reasoned that because he “did

not receive notice of the Court’s action until after close of business” then

“fairness would dictate” that he could start the calculation for her fifteen-day

due date on the following business day, Monday December 21, 2015, and that

fifteen days from December 21st was January 5, 2016, thereby making his notice

of appeal “timely[.]” Id. at 2. Hazelwood alternatively argued that this Court

should consider the merits of his interlocutory appeal despite the admittedly

one-day late filing of his notice of appeal.

[10] On July 5, 2016, our Court’s motions panel denied the State’s motion to

dismiss but was divided on its ruling. (Kirsch, Brown, JJ., concur, Sharpnack,

Sr. J., dissents). Thereafter, the State filed its Appellee’s Brief and raised cross-

appeal issues. In relevant part, the State re-raised its motion to dismiss

Hazelwood’s appeal.

Decision [11] As part of its cross-appeal, the State argues that Hazelwood has forfeited his

right to pursue this interlocutory appeal by filing an untimely notice of appeal,

and it contends that there are no compelling extraordinary circumstances to

excuse this forfeiture.

Court of Appeals of Indiana | Memorandum Decision 82A01-1511-CR-2039 | August 31, 2016 Page 7 of 11 [12] In response to the State’s cross-appeal argument, Hazelwood contends that our

motion panel’s decision is now “law of the case” that cannot be reviewed.

(Hazelwood’s Reply Br. 6). We disagree.

[13] Although our motions panel has already ruled on the State’s motion to dismiss,

“[i]t is well established that we may reconsider a ruling by our motions panel.”

Wise v. State, 997 N.E.2d 411, 413 (Ind. Ct. App. 2013). “This court, while

reluctant to overrule orders issued by the motions panel, does have inherent

authority to reconsider any decision while an appeal remains pending.” Estate

of Mayer v. Lax, Inc., 998 N.E.2d 238, 245 (Ind. Ct. App. 2013) (citing Simon v.

Simon, 957 N.E.2d 980, 987 (Ind. Ct. App. 2011)), trans. denied.

[14] Here, Hazelwood has attempted to bring this appeal as a discretionary

interlocutory appeal. Accordingly, Appellate Rule 14(B) applies and sets forth

the procedure to be followed for initiating such an appeal. The part of this

procedure that is at issue here is the requirement that Hazelwood was to file his

notice of appeal “within fifteen (15) days” of our Court’s “order accepting

jurisdiction over the interlocutory appeal.” App. R. 14(B)(3).

[15] Our Court issued its order accepting jurisdiction over this discretionary

interlocutory appeal on December 18, 2015, and the order specified that

Hazelwood was required to comply with Appellate Rule 14(B)(3). Based on the

date of the order, Hazelwood’s notice of appeal was due on or before January 4,

Court of Appeals of Indiana | Memorandum Decision 82A01-1511-CR-2039 | August 31, 2016 Page 8 of 11 2016.10 See App. R. 14(B)(3). Hazelwood filed his notice of appeal one day late

on January 5, 2016.

[16] Appellate Rule 9(A)(5) provides that “unless the Notice of Appeal is timely

filed, the right to appeal shall be forfeited[.]” Our supreme court, however, has

explained that an appellate court may restore a right of appeal that has been

forfeited if there are “extraordinarily compelling reasons to do so.” In re

Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014).

[17] In O.R., our supreme court concluded that, in an appeal of a father seeking to

challenge the adoption of his child, there were extraordinarily compelling

reasons that existed to restore the father’s forfeited right to appeal. Id. at 972.

In so finding, the O.R. Court cited to: (1) Appellate Rule 1, which provides that

our Court may permit deviation from the Appellate Rules; (2) the father’s

timely attempt to initiate an appeal before the deadline for filing his notice of

appeal; and (3) the parent-child relationship as a fundamental liberty interest

and one of the most valued relationship of our culture. Id. Although not

specifically enunciated by the O.R. Court, implicit in the Court’s finding of

extraordinarily compelling reasons was the fact that the father would have been

forever precluded from appealing the trial court’s adoption order.

10 As explained above, fifteen days from December 18, 2015 was Saturday January 2, 2016, but, because that day was a non-business day, the due date for the notice of appeal was Monday January 4, 2016.

Court of Appeals of Indiana | Memorandum Decision 82A01-1511-CR-2039 | August 31, 2016 Page 9 of 11 [18] Here, however, Hazelwood is attempting to file a discretionary interlocutory

appeal; therefore, he is not forever precluded from appealing the trial court’s

ruling on his motion to suppress. Indeed, Hazelwood would be able to appeal

the trial court’s ruling on his suppression motion following a conviction and

timely trial objection to the admission of the challenged evidence. See Danner v.

State, 931 N.E.2d 421, 426 (Ind. Ct. App. 2010) (explaining that “[w]here a

defendant does not perfect an interlocutory appeal from a trial court’s ruling on

a motion to suppress, but objects to the admission of the evidence at trial, the

issue on appeal is . . . framed as whether the trial court abused its discretion by

admitting the evidence at trial”), trans. denied. Thus, we find no extraordinary

compelling reasons to restore Hazelwood’s forfeited right to this discretionary

interlocutory appeal, and we dismiss the appeal. See Blinn v. Dyer, 19 N.E.3d

821, 822 (Ind. Ct. App. 2014) (explaining that “while we may waive the

apparent Appellate Rule 9(A)’s forfeiture requirement, we need not do so”). Cf.

Morales v. State, 19 N.E.3d 292 (Ind. Ct. App. 2014) (reviewing the appeal of a

pro se post-conviction petitioner who filed his notice of appeal one day late

where he could have petitioned for rehearing to show timely compliance with

the notice of appeal filing requirement under the prison mailbox rule), trans.

denied.

[19]

Court of Appeals of Indiana | Memorandum Decision 82A01-1511-CR-2039 | August 31, 2016 Page 10 of 11 [20] Dismissed.11

Bradford, J., and Altice, J., concur.

11 Our decision to dismiss this appeal should not be construed to reflect our position on the merits of the issues raised in the parties’ appellate briefs.

Court of Appeals of Indiana | Memorandum Decision 82A01-1511-CR-2039 | August 31, 2016 Page 11 of 11