FOR PUBLICATION ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK SMALL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
ANN L. GOODWIN Deputy Attorney General Indianapolis, Indiana
FILED May 23 2012, 8:43 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
WILLIE HUGULEY, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1105-CR-413 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Tanya Walton Pratt, Judge Cause No. 49G01-9808-PC-71583
May 23, 2012
OPINION - FOR PUBLICATION
SHARPNACK, Senior Judge Willie Huguley is attempting to revive his original appeal and appeal the denial of
his petition for postconviction relief. We conclude that Huguley cannot receive belated
appellate review of the denial of postconviction relief, but we remand to the trial court to
determine whether he has been without fault and diligent in pursuit of his original appeal.
In 1999, Huguley was convicted of two counts of child molesting, both as Class A
felonies, and of a third charge of child molesting as a Class C felony. Ind. Code § 35-42-
4-3 (1996). His counsel timely initiated an appeal to this Court, indicating in the Notice
of Appeal that the anticipated issues on appeal were insufficiency of the evidence and
ineffective assistance of trial counsel. On February 15, 2000, Huguley, by counsel,
petitioned this Court to terminate the appeal and remand the cause to the trial court to
allow Huguley to seek postconviction relief and litigate the issue of ineffective assistance
of trial counsel. The petition was granted by this Court, terminating the appeal and
remanding to the trial court.
Huguley’s counsel did file his petition for postconviction relief on April 12, 2002.
The trial court, after a hearing on the petition, entered findings and conclusions of law
denying postconviction relief on February 7, 2003. From the record, it appears that no
Notice of Appeal was ever filed to initiate an appeal from the denial of postconviction
relief.
On May 3, 2011, Huguley’s present counsel filed an appearance and Petition for
Belated Perfection of Appeal (“Petition”) here under 49A05-9911-CR-504 (“CR-504”),
the original appeal cause. After some administrative shuffling, the current cause 49A02-
1105-CR-413 (“CR-413”) was opened, and the case has continued on that docket. On
2 October 11, 2011, the motions panel granted Huguley’s Petition and directed transfer of
all filings from CR-504 to CR-413. Next, Huguley, through counsel, tendered a Verified
Motion to Temporarily Stay and Remand to Trial Court. The motions panel ordered that
motion to be held in abeyance to be ruled on by the writing panel. Thereafter briefing
was completed and the tendered motion is before us.
In the Petition for Belated Perfection of Appeal, Huguley asserted that he had been
unaware that his petition for postconviction relief had been denied or that no Notice of
Appeal had been filed. Further, he asserted that he was without sufficient legal or factual
knowledge to know what had transpired in his case or how to proceed. The failure to file
a Notice of Appeal or a motion to otherwise reinstate his direct appeal, he alleges, was
not his; and he has been diligent to determine why his appeal was not pursued, to obtain
counsel, and to request permission to pursue a belated appeal.
Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977), and Hatton v. State, 626
N.E.2d 442 (Ind. 1993), establish and recognize that during the pendency of an appeal
from a conviction, a defendant may have issues which could be the basis for
postconviction relief in addition to the issues raised on appeal. In such a circumstance,
on request, the appellate court may terminate the appeal and grant remand so the petition
for postconviction relief can be heard. If postconviction relief is granted, the issues
originally on appeal may be mooted and no further appeal is necessary. If postconviction
relief is denied, an appeal may be taken from the denial and the issues originally raised
on appeal may be added to the postconviction appeal. See Hatton, 626 N.E.2d at 442.
3 In this case, an appeal from the denial of postconviction relief was not initiated by
the filing of a Notice of Appeal. Huguley may not turn to Indiana Postconviction Rule
2(1) to seek leave to file a belated Notice of Appeal because Postconviction Rule 2 does
not apply to appeals from postconviction proceedings. See Taylor v. State, 939 N.E.2d
1132, 1135 (Ind. Ct. App. 2011) (citing Greer v. State, 685 N.E.2d 700, 703 (Ind. 1997)).
It also appears that Huguley may not seek belated perfection of the postconviction appeal
under Indiana Postconviction Rule 2(3) because, again, the appeal would be from a
postconviction proceeding and, like Postconviction Rule 2(1), Postconviction Rule 2(3)
would not apply, because no timely Notice of Appeal was filed as required by
Postconviction Rule 2(3)(a). As things stand, there is no appeal available from the denial
of Huguley’s petition for postconviction relief.
However, there remains the matter of “revival” of the original appeal which was
terminated to permit the postconviction process to go forward. Review of this issue
requires us to examine Indiana Postconviction Rule 2(3), which provides:
An eligible defendant convicted after a trial or plea of guilty may petition the appellate tribunal for permission to pursue a belated appeal of the conviction or sentence if:
(a) the defendant filed a timely notice of appeal;
(b) no appeal was perfected for the defendant or the appeal was dismissed for failing to take a necessary step to pursue the appeal;
(c) the failure to perfect the appeal or take the necessary step was not due to the fault of the defendant; and
(d) the defendant has been diligent in requesting permission to pursue a belated appeal.
4 In this case, the original appeal was timely initiated, satisfying Postconviction
Rule 2(3)(a). Although the present case may not precisely fit Rule 2(3)(b), it is clear that
there was failure to take a necessary step to pursue the appeal. That is, Huguley did not
pursue the appeal of the postconviction judgment, which was a necessary step to bring
forward the issues from the original appeal. We think the requirement of Rule 2(3)(b)
has been met.
That brings us to the requirements of Postconviction Rule 2(3)(c) and (d).
Huguley must demonstrate that the failure to perfect the appeal from the postconviction
denial was not due to his fault. Huguley must also demonstrate that he has been diligent
in requesting permission to pursue a belated appeal.
Huguley contends that he has met the burden by these statements under the
penalty of perjury:
18. Mr. Huguley’s direct appeal was terminated on motion by his counsel, who had sought a stay of the direct appeal.
19. Mr. Huguley was unaware his PCR was denied by the Marion Superior Court or that no Notice of Appeal was filed with the Marion Superior Court.
20. The filing of a Notice of Appeal or a motion to otherwise reinstate his direct appeal was the necessary step to take to pursue his direct appeal, but Mr.
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FOR PUBLICATION ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK SMALL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
ANN L. GOODWIN Deputy Attorney General Indianapolis, Indiana
FILED May 23 2012, 8:43 am
IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court
WILLIE HUGULEY, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1105-CR-413 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Tanya Walton Pratt, Judge Cause No. 49G01-9808-PC-71583
May 23, 2012
OPINION - FOR PUBLICATION
SHARPNACK, Senior Judge Willie Huguley is attempting to revive his original appeal and appeal the denial of
his petition for postconviction relief. We conclude that Huguley cannot receive belated
appellate review of the denial of postconviction relief, but we remand to the trial court to
determine whether he has been without fault and diligent in pursuit of his original appeal.
In 1999, Huguley was convicted of two counts of child molesting, both as Class A
felonies, and of a third charge of child molesting as a Class C felony. Ind. Code § 35-42-
4-3 (1996). His counsel timely initiated an appeal to this Court, indicating in the Notice
of Appeal that the anticipated issues on appeal were insufficiency of the evidence and
ineffective assistance of trial counsel. On February 15, 2000, Huguley, by counsel,
petitioned this Court to terminate the appeal and remand the cause to the trial court to
allow Huguley to seek postconviction relief and litigate the issue of ineffective assistance
of trial counsel. The petition was granted by this Court, terminating the appeal and
remanding to the trial court.
Huguley’s counsel did file his petition for postconviction relief on April 12, 2002.
The trial court, after a hearing on the petition, entered findings and conclusions of law
denying postconviction relief on February 7, 2003. From the record, it appears that no
Notice of Appeal was ever filed to initiate an appeal from the denial of postconviction
relief.
On May 3, 2011, Huguley’s present counsel filed an appearance and Petition for
Belated Perfection of Appeal (“Petition”) here under 49A05-9911-CR-504 (“CR-504”),
the original appeal cause. After some administrative shuffling, the current cause 49A02-
1105-CR-413 (“CR-413”) was opened, and the case has continued on that docket. On
2 October 11, 2011, the motions panel granted Huguley’s Petition and directed transfer of
all filings from CR-504 to CR-413. Next, Huguley, through counsel, tendered a Verified
Motion to Temporarily Stay and Remand to Trial Court. The motions panel ordered that
motion to be held in abeyance to be ruled on by the writing panel. Thereafter briefing
was completed and the tendered motion is before us.
In the Petition for Belated Perfection of Appeal, Huguley asserted that he had been
unaware that his petition for postconviction relief had been denied or that no Notice of
Appeal had been filed. Further, he asserted that he was without sufficient legal or factual
knowledge to know what had transpired in his case or how to proceed. The failure to file
a Notice of Appeal or a motion to otherwise reinstate his direct appeal, he alleges, was
not his; and he has been diligent to determine why his appeal was not pursued, to obtain
counsel, and to request permission to pursue a belated appeal.
Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977), and Hatton v. State, 626
N.E.2d 442 (Ind. 1993), establish and recognize that during the pendency of an appeal
from a conviction, a defendant may have issues which could be the basis for
postconviction relief in addition to the issues raised on appeal. In such a circumstance,
on request, the appellate court may terminate the appeal and grant remand so the petition
for postconviction relief can be heard. If postconviction relief is granted, the issues
originally on appeal may be mooted and no further appeal is necessary. If postconviction
relief is denied, an appeal may be taken from the denial and the issues originally raised
on appeal may be added to the postconviction appeal. See Hatton, 626 N.E.2d at 442.
3 In this case, an appeal from the denial of postconviction relief was not initiated by
the filing of a Notice of Appeal. Huguley may not turn to Indiana Postconviction Rule
2(1) to seek leave to file a belated Notice of Appeal because Postconviction Rule 2 does
not apply to appeals from postconviction proceedings. See Taylor v. State, 939 N.E.2d
1132, 1135 (Ind. Ct. App. 2011) (citing Greer v. State, 685 N.E.2d 700, 703 (Ind. 1997)).
It also appears that Huguley may not seek belated perfection of the postconviction appeal
under Indiana Postconviction Rule 2(3) because, again, the appeal would be from a
postconviction proceeding and, like Postconviction Rule 2(1), Postconviction Rule 2(3)
would not apply, because no timely Notice of Appeal was filed as required by
Postconviction Rule 2(3)(a). As things stand, there is no appeal available from the denial
of Huguley’s petition for postconviction relief.
However, there remains the matter of “revival” of the original appeal which was
terminated to permit the postconviction process to go forward. Review of this issue
requires us to examine Indiana Postconviction Rule 2(3), which provides:
An eligible defendant convicted after a trial or plea of guilty may petition the appellate tribunal for permission to pursue a belated appeal of the conviction or sentence if:
(a) the defendant filed a timely notice of appeal;
(b) no appeal was perfected for the defendant or the appeal was dismissed for failing to take a necessary step to pursue the appeal;
(c) the failure to perfect the appeal or take the necessary step was not due to the fault of the defendant; and
(d) the defendant has been diligent in requesting permission to pursue a belated appeal.
4 In this case, the original appeal was timely initiated, satisfying Postconviction
Rule 2(3)(a). Although the present case may not precisely fit Rule 2(3)(b), it is clear that
there was failure to take a necessary step to pursue the appeal. That is, Huguley did not
pursue the appeal of the postconviction judgment, which was a necessary step to bring
forward the issues from the original appeal. We think the requirement of Rule 2(3)(b)
has been met.
That brings us to the requirements of Postconviction Rule 2(3)(c) and (d).
Huguley must demonstrate that the failure to perfect the appeal from the postconviction
denial was not due to his fault. Huguley must also demonstrate that he has been diligent
in requesting permission to pursue a belated appeal.
Huguley contends that he has met the burden by these statements under the
penalty of perjury:
18. Mr. Huguley’s direct appeal was terminated on motion by his counsel, who had sought a stay of the direct appeal.
19. Mr. Huguley was unaware his PCR was denied by the Marion Superior Court or that no Notice of Appeal was filed with the Marion Superior Court.
20. The filing of a Notice of Appeal or a motion to otherwise reinstate his direct appeal was the necessary step to take to pursue his direct appeal, but Mr. Huguley was without sufficient legal or factual knowledge to know what had transpired in his case or how to proceed in his case.
21. The failure to take the steps described in paragraph 20 was not Mr. Huguley’s as Mr. Huguley would have taken whatever steps were necessary to reinstate and pursue his direct appeal.
22. Mr. Huguley has been diligent in trying to determine why his appeal was not pursued, in securing post-conviction counsel, and in otherwise requesting permission to pursue a belated appeal.
5 Appellant’s App. pp. 54-55. The State contends that such conclusory assertions are
insufficient to show diligence and lack of fault.
Huguley’s assertions are not in themselves sufficient to carry his burden, but they
are sufficient for us to allow him an opportunity to make a factual case to support the
allegations. We grant Huguley’s Verified Motion to Temporarily Stay and Remand to
Trial Court in part. We terminate this appeal and remand this cause to the trial court to
determine whether or not Huguley’s failure to pursue the appeal of the postconviction
judgment was his fault and whether or not Huguley has been diligent. If the trial court
finds favorably, he may return to this Court and continue the appeal of his case as
originally initiated. There can be no appeal of the postconviction denial.
Remanded.
BAILEY, J., and CRONE, J., concur.