Hilton Hazelwood v. State of Indiana (mem. dec.) ( 2016 )

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.
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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.
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“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.
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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.
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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
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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.
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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.
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[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,
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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.
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[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]
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[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.
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