Larry D. Blanton, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 8, 2018
• Docket: 53A05-1708-CR-1895
• Status: Published

Opinion

MEMORANDUM DECISION FILED Feb 08 2018, 6:05 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Larry David Blanton, Jr. Curtis, T. Hill, Jr. New Castle, Indiana Attorney General of Indiana

Kelly A. Loy Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Larry D. Blanton, Jr., February 8, 2018 Appellant-Defendant, Court of Appeals Case No. 53A05-1708-CR-1895 v. Appeal from the Monroe Circuit Court State of Indiana, The Honorable Mary Ellen Appellee-Plaintiff Diekhoff, Judge Trial Court Cause No. 53C05-0404-FA-360

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 53A05-1708-CR-1895 | February 8, 2018 Page 1 of 4 [1] Larry David Blanton, Jr., pro se, appeals the trial court’s denial of his petition

to file a belated appeal from the denial of his motion to correct erroneous

sentence.

[2] We affirm.

Facts & Procedural History

[3] Following a jury trial in February 2006, Blanton was convicted of three counts

of Class A felony child molesting and one count of Class C felony child

molesting. The trial court imposed an aggregate sentence of 105 years in

prison, with 30 of those years suspended. On direct appeal, Blanton challenged

the sufficiency of the evidence supporting his convictions and the

appropriateness of his sentence. Blanton prevailed on the sentencing argument,

and his aggregate sentence was reduced to 30 years in prison. Blanton v. State,

Cause No. 53A01-0606-CR-226 (Ind. Ct. App. April 19, 2007). On remand,

the trial court resentenced Blanton accordingly on October 12, 2007.

[4] On February 24, 2017, Blanton filed a pro se motion to correct erroneous

sentence, along with a memorandum of law. Following the State’s response,

the trial court denied the motion on April 24, 2017. Due to a mailing error,

Blanton apparently did not receive a copy of this order until May 22, 2017, and

he claims that access to the prison’s law library was restricted from this date

though May 26, 2017.

Court of Appeals of Indiana | Memorandum Decision 53A05-1708-CR-1895 | February 8, 2018 Page 2 of 4 [5] On June 26, 2017, Blanton filed a motion for leave to file a belated notice of

appeal pursuant to Indiana Post-Conviction Rule 2(1), which was denied by the

trial court on July 19, 2017. Blanton appeals from that denial, claiming that the

trial court abused its discretion.

Discussion & Decision

[6] Indiana Appellate Rule 9(A)(5) provides that unless the notice of appeal is

timely filed, the right to appeal shall be forfeited except as provided by P-C.R.

2. Relying on P-C.R. 2(1)(a), Blanton argues that his failure to file a timely

notice of appeal was not his fault and that he had been diligent in requesting

permission to file a belated notice of appeal. Regardless, Blanton is not an

eligible defendant for purposes of P-C.R. 2 because he is not pursuing a direct

appeal.1 Our Supreme Court has consistently recognized that P-C.R. 2 “applies

only to direct appeals of criminal convictions” and cannot be used to salvage a

late appeal of the denial of a motion to correct erroneous sentence. In re

Adoption of O.R., 16 N.E.3d 965, 970 n.2 (Ind. 2014) (emphasis in original); see

also Davis v. State, 771 N.E.2d 647, 649 (Ind. 2002) (“P-C.R. 2(1) does not

permit belated appeals of motions to correct erroneous sentences”), abrogated in

part on other grounds by O.R., 16 N.E.3d 965. Accordingly, the trial court did not

1 P-C.R. 2 defines an “eligible defendant” as “a defendant 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, filing a motion to correct error, or pursuing an appeal.”

Court of Appeals of Indiana | Memorandum Decision 53A05-1708-CR-1895 | February 8, 2018 Page 3 of 4 err when it denied Blanton’s motion for leave to file a belated notice of appeal

from the denial of his motion to correct erroneous sentence.

[7] Judgment affirmed.

[8] May, J. and Vaidik C.J., concur.

Court of Appeals of Indiana | Memorandum Decision 53A05-1708-CR-1895 | February 8, 2018 Page 4 of 4