MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 07 2016, 7:28 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Ryan Patrick Rucker Gregory F. Zoeller Carlisle, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ryan Patrick Rucker, April 7, 2016 Appellant-Defendant, Court of Appeals Case No. 35A05-1509-CR-01448 v. Appeal from the Huntington Circuit Court State of Indiana, The Honorable Thomas M. Hakes, Appellee-Plaintiff Judge Trial Court Cause No. 35C01-1110-FA-00217
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 1 of 7 Case Summary [1] In 2012, Ryan Patrick Rucker (“Rucker”) pled guilty to Child Molesting, as a
Class A felony. In 2015, while pursuing post-conviction remedies, Rucker filed
a petition to pursue a belated appeal. The trial court denied the petition, and
Rucker appeals, presenting the sole issue of whether the trial court abused its
discretion when it denied his petition for permission to file a belated notice of
appeal.
[2] We affirm.
Facts and Procedural History [3] On October 18, 2011, Rucker was charged with Child Molesting. On March
12, 2012, Rucker entered a guilty plea as the result of a plea agreement.
[4] On March 20, 2012, Rucker’s trial counsel, Ryan Painter (“Painter”) moved to
withdraw his appearance. On March 21, 2012, Rucker filed several motions,
including a motion to withdraw his guilty plea. On March 26, 2012, the trial
court denied Rucker’s motions, granted Painter’s motion to withdraw, and
appointed new counsel, Matthew Grantham (“Grantham”).
[5] On April 23, 2012, Rucker, by counsel, filed a motion to withdraw his guilty
plea. The trial court denied the motion on May 10, 2012.
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 2 of 7 [6] On May 21, 2012, a sentencing hearing was conducted at which the trial court
accepted the guilty plea proffered on March 12, 2012, entered judgment against
Rucker, and sentenced Rucker to twenty-five years imprisonment.
[7] On the day of the sentencing hearing, Rucker and Grantham engaged in some
discussion of the possibility of Rucker seeking post-conviction relief. Grantham
suggested that Rucker’s best course of action might be a post-conviction
petition, rather than a direct appeal of the trial court’s denial of Rucker’s
motion to withdraw the guilty plea.
[8] On June 6, 2012, Grantham filed his motion to withdraw his appearance as
Rucker’s counsel. The trial court granted the motion on June 6, 2012.
[9] On July 9, 2012, Rucker sent a letter to Grantham requesting documents
Rucker believed were relevant to a post-conviction petition and requesting
clarification of Grantham’s suggestions concerning post-conviction remedies.
Rucker also asked Grantham how long Rucker could wait before filing a
belated appeal.
[10] On July 19, 2012, Grantham sent a responsive letter in which he explained
further his recommendation that Rucker pursue post-conviction remedies.
Grantham’s letter stated:
There is no time limit, strictly speaking, on a belated appeal. You have to be diligent in pursuing it and file within a reasonable time. The rule is similar to the rule for filing [for post-conviction relief].
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 3 of 7 (App’x at 16.)
[11] On August 20, 2012, under Cause Number 35C01-1208-PC-11 (“PC-11”),
Rucker filed a petition for post-conviction relief. Rucker was represented by
counsel for a portion of the proceedings, but on August 28, 2014, the office of
the State Public Defender withdrew its appearance on Rucker’s behalf. From
this point forward, Rucker proceeded pro se.
[12] On August 13, 2015, Rucker filed a petition for permission to file a belated
notice of appeal in the instant case, and a request for a stay of post-conviction
proceedings in PC-11.
[13] A hearing was conducted on Rucker’s petition on August 25, 2015. On August
26, 2015, the trial court denied Rucker’s petition and request for a stay.
[14] This appeal ensued.
Discussion and Decision [15] In his appeal, Rucker argues that the trial court abused its discretion when it
found that Rucker did not diligently pursue an appeal of the denial of his
[16] Indiana Post-Conviction Rule 2 governs the pursuit of a belated appeal:
(a) Required Showings. 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;
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 4 of 7 (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.
(b) Form of petition. There is no prescribed form of petition for permission to file a belated notice of appeal. The petitioner’s proposed notice of appeal may be filed as an Exhibit to the petition.
(c) Factors in granting or denying permission. If the trial court finds that the requirements of Section 1(a) are met, it shall permit the defendant to file the belated notice of appeal. Otherwise, it shall deny permission.
Ind. Post-Conviction Rule 2(1).
[17] Whether to grant permission to file a belated notice of appeal is a matter within
the sound discretion of the trial court. Moshenek v. State, 868 N.E.2d 419, 422
(Ind. 2007). “The defendant bears the burden of proving by a preponderance of
the evidence that he was without fault in the delay of filing and was diligent in
pursuing permission to file a belated motion to appeal.” Id. at 422-23. There
are no set standards for fault or diligence. Id. at 423. Rather, “each case turns
on its own facts,” id., and numerous factors may be applied, including:
The defendant’s level of awareness of his procedural remedy, age, education, familiarity with the legal system, whether the
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 5 of 7 defendant was informed of his appellate rights, and whether he committed an act or omission which contributed to the delay.
Id. (quoting Land v. State, 640 N.E.2d 106, 108 (Ind. Ct. App. 1994)).
[18] Here, Rucker contends that he did not become aware that he could pursue a
direct appeal of the trial court’s denial of his motion to withdraw the guilty plea
until sometime in the middle of 2015, and thus he was diligent in pursuing a
[19] Our review of the record discloses that Rucker’s letter to Grantham on July 9,
2012, includes a discussion of the possibility of seeking permission to pursue a
belated direct appeal: “I am a little confused as to why you said that a PCR was
the best course of action for me and not a ‘direct appeal’ as the appellate
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 07 2016, 7:28 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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Ryan Patrick Rucker Gregory F. Zoeller Carlisle, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Ryan Patrick Rucker, April 7, 2016 Appellant-Defendant, Court of Appeals Case No. 35A05-1509-CR-01448 v. Appeal from the Huntington Circuit Court State of Indiana, The Honorable Thomas M. Hakes, Appellee-Plaintiff Judge Trial Court Cause No. 35C01-1110-FA-00217
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 1 of 7 Case Summary [1] In 2012, Ryan Patrick Rucker (“Rucker”) pled guilty to Child Molesting, as a
Class A felony. In 2015, while pursuing post-conviction remedies, Rucker filed
a petition to pursue a belated appeal. The trial court denied the petition, and
Rucker appeals, presenting the sole issue of whether the trial court abused its
discretion when it denied his petition for permission to file a belated notice of
appeal.
[2] We affirm.
Facts and Procedural History [3] On October 18, 2011, Rucker was charged with Child Molesting. On March
12, 2012, Rucker entered a guilty plea as the result of a plea agreement.
[4] On March 20, 2012, Rucker’s trial counsel, Ryan Painter (“Painter”) moved to
withdraw his appearance. On March 21, 2012, Rucker filed several motions,
including a motion to withdraw his guilty plea. On March 26, 2012, the trial
court denied Rucker’s motions, granted Painter’s motion to withdraw, and
appointed new counsel, Matthew Grantham (“Grantham”).
[5] On April 23, 2012, Rucker, by counsel, filed a motion to withdraw his guilty
plea. The trial court denied the motion on May 10, 2012.
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 2 of 7 [6] On May 21, 2012, a sentencing hearing was conducted at which the trial court
accepted the guilty plea proffered on March 12, 2012, entered judgment against
Rucker, and sentenced Rucker to twenty-five years imprisonment.
[7] On the day of the sentencing hearing, Rucker and Grantham engaged in some
discussion of the possibility of Rucker seeking post-conviction relief. Grantham
suggested that Rucker’s best course of action might be a post-conviction
petition, rather than a direct appeal of the trial court’s denial of Rucker’s
motion to withdraw the guilty plea.
[8] On June 6, 2012, Grantham filed his motion to withdraw his appearance as
Rucker’s counsel. The trial court granted the motion on June 6, 2012.
[9] On July 9, 2012, Rucker sent a letter to Grantham requesting documents
Rucker believed were relevant to a post-conviction petition and requesting
clarification of Grantham’s suggestions concerning post-conviction remedies.
Rucker also asked Grantham how long Rucker could wait before filing a
belated appeal.
[10] On July 19, 2012, Grantham sent a responsive letter in which he explained
further his recommendation that Rucker pursue post-conviction remedies.
Grantham’s letter stated:
There is no time limit, strictly speaking, on a belated appeal. You have to be diligent in pursuing it and file within a reasonable time. The rule is similar to the rule for filing [for post-conviction relief].
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 3 of 7 (App’x at 16.)
[11] On August 20, 2012, under Cause Number 35C01-1208-PC-11 (“PC-11”),
Rucker filed a petition for post-conviction relief. Rucker was represented by
counsel for a portion of the proceedings, but on August 28, 2014, the office of
the State Public Defender withdrew its appearance on Rucker’s behalf. From
this point forward, Rucker proceeded pro se.
[12] On August 13, 2015, Rucker filed a petition for permission to file a belated
notice of appeal in the instant case, and a request for a stay of post-conviction
proceedings in PC-11.
[13] A hearing was conducted on Rucker’s petition on August 25, 2015. On August
26, 2015, the trial court denied Rucker’s petition and request for a stay.
[14] This appeal ensued.
Discussion and Decision [15] In his appeal, Rucker argues that the trial court abused its discretion when it
found that Rucker did not diligently pursue an appeal of the denial of his
[16] Indiana Post-Conviction Rule 2 governs the pursuit of a belated appeal:
(a) Required Showings. 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;
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 4 of 7 (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.
(b) Form of petition. There is no prescribed form of petition for permission to file a belated notice of appeal. The petitioner’s proposed notice of appeal may be filed as an Exhibit to the petition.
(c) Factors in granting or denying permission. If the trial court finds that the requirements of Section 1(a) are met, it shall permit the defendant to file the belated notice of appeal. Otherwise, it shall deny permission.
Ind. Post-Conviction Rule 2(1).
[17] Whether to grant permission to file a belated notice of appeal is a matter within
the sound discretion of the trial court. Moshenek v. State, 868 N.E.2d 419, 422
(Ind. 2007). “The defendant bears the burden of proving by a preponderance of
the evidence that he was without fault in the delay of filing and was diligent in
pursuing permission to file a belated motion to appeal.” Id. at 422-23. There
are no set standards for fault or diligence. Id. at 423. Rather, “each case turns
on its own facts,” id., and numerous factors may be applied, including:
The defendant’s level of awareness of his procedural remedy, age, education, familiarity with the legal system, whether the
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 5 of 7 defendant was informed of his appellate rights, and whether he committed an act or omission which contributed to the delay.
Id. (quoting Land v. State, 640 N.E.2d 106, 108 (Ind. Ct. App. 1994)).
[18] Here, Rucker contends that he did not become aware that he could pursue a
direct appeal of the trial court’s denial of his motion to withdraw the guilty plea
until sometime in the middle of 2015, and thus he was diligent in pursuing a
[19] Our review of the record discloses that Rucker’s letter to Grantham on July 9,
2012, includes a discussion of the possibility of seeking permission to pursue a
belated direct appeal: “I am a little confused as to why you said that a PCR was
the best course of action for me and not a ‘direct appeal’ as the appellate
procedure states.” (App’x at 13.) Later in the letter, Rucker asks Grantham to
clarify the timeline under which Rucker might need to pursue a belated direct
appeal: “what is the time limit on a belated appeal?” (App’x at 14.)
Grantham’s letter in response provided Rucker with answers to these inquiries.
[20] Thus, as early as July 2012, Rucker was aware that he could pursue a belated
appeal. The trial court’s finding that Rucker was not diligent in pursuing a
belated appeal, then, is not clearly against the logic and effect of the facts and
circumstances before it. See Bethea v. State, 983 N.E.2d 1134, 1139 (Ind. 2013)
(“An abuse of discretion occurs if the decision is clearly against the logic and
effect of the facts and circumstances before the court.”) We accordingly find no
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 6 of 7 abuse of discretion in the court’s denial of Rucker’s petition for permission to
file a belated notice of appeal.1
[21] Affirmed.
Bradford, J., and Altice, J., concur.
1 To the extent Rucker raises questions of ineffectiveness on Grantham’s part, we note that Rucker may, if properly pleaded, be able to pursue this claim within the context of his post-conviction proceedings. We accordingly decline to address such questions in our opinion today.
Court of Appeals of Indiana | Memorandum Decision 35A05-1509-CR-01448| April 7, 2016 Page 7 of 7