Opinion
22A-CR-1890
02-27-2023
Daymeis Jones, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEYS FOR APPELLANT Valerie Kent Boots Indianapolis, Indiana Jan Barteau Berg Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Kurt Eisgruber, Judge Trial Court Cause No. 49G01-1303-FA-16382
ATTORNEYS FOR APPELLANT
Valerie Kent Boots Indianapolis, Indiana
Jan Barteau Berg Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Megan M. Smith Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Riley, Judge
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Daymeis Jones (Jones), belatedly appeals his sentence for rape, a Class A felony, Ind. Code § 35-42-4-1(a)(1); criminal deviate conduct, a Class B felony, I.C. § 35-42-4-2; and burglary, a Class B felony, I.C. § 35-43-2-1(1).
[¶2] We dismiss.
ISSUE
[¶3] Jones presents this court with two issues. The State cross-appeals and presents us with one issue, which we find to be dispositive and restate as: Whether the trial court abused its discretion when it granted Jones' petition to file this belated appeal.
FACTS AND PROCEDURAL HISTORY
[¶4] M.L., who in 2012 was a sixty-year-old, lived alone at her home on Dunk Drive in Indianapolis. In the early hours of November 25, 2012, Jones, who was one month and two days away from his eighteenth birthday, broke into and entered M.L.'s home. Jones unscrewed all of the lightbulbs in M.L.'s house, extinguishing the lights M.L. had left on when she retired for the night. When M.L. awoke and exited her bedroom to investigate why it was so dark in her home, Jones grabbed M.L. from behind with his arm around her neck. Jones told M.L. not to make any noise or he would shoot her. Jones informed M.L. that she was "going to like this[.]" (Appellant's App. Vol. II, p. 47). Jones forced M.L. to submit to oral sex, vaginal sex, and anal sex. Jones then moved M.L. to another room, struck her multiple times, and forced her to submit to anal sex again. Jones did not wear a condom during any of these forced sexual acts, and Jones' offenses resulted in tearing to M.L.'s anus and vagina. After he was finished, Jones bound M.L.'s legs and told her to count to 150 or he would send someone to harm her. Jones took M.L.'s van and cell phone and fled. Jones used M.L.'s cell phone after the offenses and kept it with him. M.L.'s cell phone records subsequently revealed Jones' location, and, after further investigation, on March 12, 2013, Jones was taken into custody after he had to be physically removed from a closet in his mother's house where he was hiding.
Jones' plea agreement provided that the facts contained in the probable cause affidavits filed in this matter were admissible and relevant for sentencing. Our statement of the facts pertaining to the underlying offenses is taken from those probable cause affidavits.
[¶5] On March 12, 2013, the State filed an Information, charging Jones with Class A felony rape, three counts of Class A felony criminal deviate conduct, Class A felony burglary, Class D felony intimidation, Class D felony strangulation, Class D felony criminal confinement, Class D felony theft, and Class A misdemeanor battery. On March 27, 2013, the State amended the Information to add a count of Class A misdemeanor resisting law enforcement.
[¶6] On January 24, 2014, Jones pleaded guilty to Class A felony rape, Class B felony criminal deviate conduct, and Class B felony burglary. Pursuant to the terms of Jones' plea agreement, the individual sentences imposed by the trial court would be served consecutively, but the trial court would otherwise exercise its discretion. Jones' plea agreement provided in relevant part that
The Defendant understands and acknowledges by his/her initials that if this agreement is accepted by the [c]ourt, the Defendant will give up the following rights:
* * *
(g) the right to appeal any sentence imposed by the [c]ourt under Rule 7(b) so long as the [c]ourt's sentence is within the terms of this plea agreement.(Appellant's App. Vol. II, p. 141). Jones placed his initials by section 10(g) of his plea agreement. At his guilty plea hearing, Jones affirmed that he understood the rights he was waiving with his plea, including section 10(g). After Jones established a factual basis, the trial court accepted Jones' guilty plea.
[¶7] On February 7, 2014, the trial court held Jones' sentencing hearing. The trial court found Jones' extensive contact with the juvenile justice system, his failure to benefit from the many services provided him through the juvenile justice system, and the heinous facts and circumstances of the offenses as aggravating circumstances, and it found Jones' youth and guilty plea as mitigating circumstances. The trial court found that the aggravators outweighed the mitigators and sentenced Jones to forty years for his rape conviction, twenty years for his criminal deviate conduct conviction, and twenty years for his burglary conviction. Consistent with the terms of Jones' plea agreement, the trial court ordered that those sentences be served consecutively, resulting in an aggregate sentence of eighty years. The trial court suspended five years from each individual sentence, for an initially-executed aggregate sentence of sixty-five years.
[¶8] After the trial court entered its oral sentencing order, Jones' counsel requested that the trial court appoint counsel to appeal his sentence. The trial court declined to appoint appellate counsel for Jones based on the sentencing waiver provision in his plea agreement and the fact that the sentence the court had just imposed was within the terms of the plea agreement. The trial court observed that the plea agreement's terms "[did] not sacrifice his PCR right, obviously." (Transcript p. 111).
[¶9] On March 9, 2020, Jones filed a petition for post-conviction relief in which he raised an ineffectiveness of counsel claim and a claim that the trial court had abused its discretion in sentencing him. On July 15, 2022, Jones filed a petition seeking to belatedly appeal his sentence. In his motion, Jones averred that he was eligible for a belated appeal pursuant to Indiana Post-Conviction Rule 2, he was not at fault for the delay in his appeal, and that he had been diligent in pursuing his right to appeal. In support of his petition, Jones filed his Affidavit in which he averred that he did not immediately appeal his sentence because he did not believe that he could, based on having been informed at his guilty plea hearing that he had waived his right to appeal. Jones' Affidavit further provided as follows:
5. I filed my pro se Petition for Post-Conviction relief on March 9, 2020, because having believed I waived my appellate rights, I knew it was the proper way to challenge my sentence.
6. When I asked for appointment of appellate counsel at my sentencing hearing on February 7, 2014, the court did not appoint appellate counsel for me. The [j]udge told me that I could only appeal if the sentence was "outside the range" of my plea and then said that he "[found] the sentence to be in the range of the plea agreement."
7. Immediately after the sentencing hearing, [Defense Counsel] told me I could "appeal" through post-conviction relief ("PCR") and gave me a pro se PCR form. Even though he used the word "appeal," I understood him to be talking about PCR.
8. On May 28, 2014, after my 30-day window to appeal had closed, [Defense Counsel] wrote to me and told me that he was not retained to pursue an appeal for me. He wrote that I had waived my right to appeal, but I "might" be able to appeal an "abuse of discretion."
9. Given the above, I did not understand that my waiver of appellate rights did not apply if the judge failed to follow sentencing procedure and guidelines. I first learned of this option on August 3, 2021, at a client conference with [PCR Counsel].(Appellant's App. Vol. III, pp. 148-49). On July 20, 2022, the trial court granted Jones' petition without holding a hearing.
[¶10] Jones now belatedly appeals, and the State cross-appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[¶11] The State cross-appeals the trial court's grant of Jones' petition to file a belated appeal. As a general matter, we review such decisions for an abuse of the trial court's discretion. Fields v. State, 162 N.E.3d 571, 575 (Ind.Ct.App. 2021), trans. denied. However, "[w]here, as here, the trial court does not hold a hearing before granting a petition to file a belated notice of appeal, we owe no deference to the trial court's decision, and the review of the granting of the petition is de novo." Amphonephong v. State, 32 N.E.3d 825, 831 (Ind.Ct.App. 2015).
II. Post-Conviction Rule 2
[¶12] Indiana Post-Conviction Rule 2 provides a procedural vehicle for a defendant to seek permission to file a belated notice of appeal. Fields, 162 N.E.3d. at 575. P-C.R. Rule 2(1)(a) provides as follows: 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[:]
(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.Ind. Post-Conviction Rule 2(1)(a). The petitioner bears the burden of proving by a preponderance of the evidence that he meets these requirements. Strong v. State, 29 N.E.3d 760, 764 (Ind.Ct.App. 2015). To be an "eligible defendant", the petitioner must be "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[.]" P-C.R. 2. "There are no set standards of fault or diligence, and each case turns on its own facts." Moshenek, 868 N.E.2d at 423. Factors relevant to the petitioner's lack of fault and diligence include the petitioner'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 which contributed to the delay." Id. (quotation omitted). Our supreme court has concluded that a trial court's failure to advise a petitioner of his right to appeal his sentence can establish that the petitioner was without fault in failing to file a timely appeal. Id. at 424. However, the petitioner must still establish that he was diligent. Id. Factors specifically relevant to the diligence inquiry are "the overall passage of time; the extent to which the [petitioner] was aware of relevant facts; and the degree to which delays are attributable to other parties[.]" Id.
III. Analysis
[¶13] Here, pursuant to the terms of his plea agreement, Jones did not waive all of his rights to appeal his sentence-he only waived the right to challenge his sentence pursuant to Indiana Appellate Rule 7(B). The State does not contest that Jones had a right to raise other sentencing challenges on direct appeal, making him an "eligible defendant" for purposes of P-C.R. 2. Neither does the State contend that Jones failed to file a timely notice of appeal. Rather, the State argues that the trial court improperly granted Jones permission to initiate a belated appeal because Jones failed to demonstrate that he was without fault and that he had been diligent in pursuing his right to file a belated appeal.
[¶14] We do not agree with the State that Jones made an inadequate showing that he was without fault in failing to timely file his notice of appeal. At his sentencing hearing, the trial court did not simply fail to advise Jones that he had a right to appeal his sentence; the court positively informed Jones that he could not appeal his sentence. This was sufficient to show that Jones was without fault for purposes of PCR Rule 2(2). See Moshenek, 868 N.E.2d at 424; see also Witt v. State, 867 N.E.2d 1279, 1282 (Ind. 2007) (holding that the trial court's advisement at sentencing that Witt could not file a direct appeal for review of his sentence showed lack of fault).
[¶15] However, we agree with the State that Jones failed to show that he was diligent in pursuing his right to belatedly appeal his sentence. Jones was sentenced on February 7, 2014, yet he did nothing to challenge his sentence for six years until filing his pro se petition for post-conviction relief on March 9, 2020, in which he raised a claim that the trial court had abused its discretion in sentencing him. Jones has not shown us that, after his sentencing hearing, he requested counsel or any transcripts, wrote letters to the trial court, or attempted in any manner to challenge his sentence prior to March 9, 2020. We acknowledge that a Post- Conviction Rule 1 petition is not the proper vehicle for raising such a claim. See Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004) (holding that the proper procure for challenging a sentence resulting from an exercise of the trial court's discretion is through a direct appeal). However, it is the procedure that Jones eventually elected to pursue, and he inexplicably waited six years to do it, despite being informed at his sentencing hearing that he retained his post-conviction rights, and, according to his Affidavit, being supplied with a pro se PCR form by Defense Counsel. According to his Affidavit, Jones was also informed within four months of his sentencing hearing that he may be able to directly appeal his sentence based on an abuse of discretion claim, yet he did nothing. These averments in Jones' Affidavit contradict the other averments contained in his Affidavit that he first learned that he could appeal his sentence when he met with PCR Counsel in August 2021. Contrary to Jones' averment, he was not informed at his guilty plea hearing that he had waived all rights to appeal his sentence; rather, the trial court read section 10(g) of the plea agreement to Jones, who affirmed that he understood it. These inconsistencies add to Jones' failure to demonstrate diligence by a preponderance of the evidence.
[¶16] Jones argues that we should find that he was diligent because "he had just turned eighteen when incarcerated for these offenses, had an IQ of 71, had not graduated from high school, had an ongoing mental health diagnosis, and struggled with management of diabetes." (Appellant's Reply/Response Br. p. 8). However, in Witt, the court found no showing of diligence where Witt waited nine and one-half years to appeal his sentence, despite Witt's arguments that he was not trained in the law, he did not graduate from high school, his IQ was in the lower eighth percentile of the population, he had below-average education and abilities, he had limited exposure to the appeals process, his counsel had not adequately informed him of his appellate rights, and he had relied on improper advice from the sentencing court that he was not permitted to directly appeal his sentence. Witt, 867 N.E.2d at 1281-82. While Jones was young when he pleaded guilty and was sentenced, youth itself is not dispositive. See, e.g., Ricks v. State, 898 N.E.2d 1277, 1280 (Ind.Ct.App. 2009) (noting that Ricks, who had been waived into the adult court system to face burglary and arson charges, was young at the time of sentencing but remanding for a hearing to develop evidence regarding when precisely Ricks had made a prior request for an appellate attorney he ambiguously claimed in a letter to have made), trans. denied. Jones was waived into adult court, and his presentence investigation report indicates that he had extensive experience with the juvenile justice system, having been arrested seven times as a juvenile and adjudicated delinquent on three misdemeanors and one felony. In 2013, Jones was evaluated by two court-appointed psychiatrists who both found Jones competent to stand trial in his M.L. case. One of the competency reports noted that Jones had demonstrated average reading skills and that there was evidence of malingering in Jones' responses to questions regarding his understanding of legal matters. The other competency report concluded that Jones was "capable of understanding the nature and objectives of the legal proceedings against him and is currently capable of assisting counsel in his defense." (Appellant's App. Vol. III, p. 99).
[¶17] Given the evidence before us, we conclude that Jones failed to establish that he was diligent in pursuing his right to appeal his sentence. Jones does not argue that his case presents extraordinary circumstances that override his failure to timely perfect his appeal. See In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014) (holding that failure to file a timely appeal results in forfeiture of that right, unless "there are extraordinarily compelling reasons why this forfeited right should be restored."). Unlike the circumstances of Ricks, here, there is no need to remand to clarify ambiguities in the factual record. Ricks, 898 N.E.2d at 1280. Therefore, we decline Jones' request to remand for a hearing on his petition.
CONCLUSION
[¶18] Based on the foregoing, we conclude that, because Jones failed to demonstrate that he was diligent in pursuing his right to appeal his sentence, the trial court abused its discretion in granting his petition to file this belated appeal.
[¶19] Dismissed.
[¶20] Altice, C.J. and Pyle, J. concur.