Forrest R. Ferguson v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Sep 23 2014, 9:38 am
any 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:
FORREST R. FERGUSON GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FORREST R. FERGUSON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1406-CR-406
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT 5
The Honorable Grant Hawkins, Judge
Cause No. 49G05-8908-CF-095841
September 23, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
The trial court denied Forrest Ferguson’s Petition for Additional Credit Time and,
thereafter, denied his Petition for Permission to File a Belated Appeal and for Appointment
of Counsel at County Expense. In the instant pro se appeal, Ferguson requests us to:
“Order the Department Of Correction to recalculate all credit time and reduce the length of
credit time the prisoner received from his period of imprisonment, pursuant to Indiana
Code 35-50-6-3.3, for earning two college degrees, and Vocational Business Management,
Reformative program for The Department Of Labor Legal Secretary and General
Educational Degree.”1
We affirm in part and dismiss in part.
In 1991, Ferguson was convicted of murder and sentenced to an executed term of
sixty years in prison. Over the years, he has filed a number of post-judgment petitions and
motions regarding his sentence. Relevant to this appeal, Ferguson filed a petition for
additional credit time on November 26, 2013, which the trial court denied on February 20,
2014. Ferguson did not timely appeal that order. Thereafter, on May 22, 2014, Ferguson
filed a petition seeking permission to file a belated notice of appeal pursuant to Ind. Post-
Conviction Rule 2(1). The trial court denied the motion the following day.
On June 11, Ferguson filed his pro se notice of appeal, which was followed by a
second notice of appeal on June 23 accompanied by orders and other documents that were
not originally filed with the first notice of appeal. Although Ferguson’s notice of appeal
indicates that he is appealing the denial of his motion for permission to filed a belated
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We share in the State’s concern in deciphering Ferguson’s appellate arguments. Because we lack
jurisdiction to reach the merits of his credit-time claim, we need not further address the cogency (or lack
thereof) of his arguments.
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notice of appeal, his arguments on appeal are directed solely to the underlying ruling on
his petition for additional credit time. The State argues that Ferguson’s appeal is untimely
and should be dismissed.
Ferguson does not dispute that he failed to timely appeal the denial of his November
2013 petition for additional credit time. See Ind. Appellate Rule 9(A)(1) (requiring a notice
of appeal to be filed within thirty days after entry of final judgment). Accordingly, his
right to appeal is forfeited except to the extent he is eligible to file a belated notice of appeal
pursuant to P-C.R. 2. See App. R. 9(A)(5).
P-C.R. 2(1) provides in relevant part:
(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;
(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.
This rule “provides a method for seeking permission for belated consideration of appeals
addressing conviction [or sentence], but does not permit belated consideration of appeals
of other post-judgment petitions.” Greer v. State, 685 N.E.2d 700, 702 (Ind. 1997)
(emphasis supplied). See also Sceifers v. State, 663 N.E.2d 1191, 1193 (Ind. Ct. App.
1996) (“P-C.R. 2(1) applies only to matters on direct appeal”), trans. denied. Here,
Ferguson is not seeking to appeal his 1991 conviction or sentence. Instead, he is seeking
permission to appeal the denial of educational credit time, which is an ancillary matter
outside the purview of P-C.R. 2(1). See Greer v. State, 685 N.E.2d 700.
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We affirm the trial court’s denial of Ferguson’s petition seeking permission to file
a belated notice of appeal. Accordingly, we lack jurisdiction to consider a belated appeal
of the order denying additional credit time to Ferguson and dismiss the appeal to the extent
it addresses that order.
Affirmed in part and dismissed in part.
VAIDIK, C.J., and MAY, J., concur.
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