Segun Rasaki v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the Oct 14 2014, 9:36 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT B. TURNER GREGORY F. ZOELLER
Lee & Fairman, LLP Attorney General of Indiana
Indianapolis, Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SEGUN RASAKI, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1404-CR-167
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William J. Nelson, Judge
Cause No. 49F18-1203-FD-13401
October 14, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Segun Rasaki appeals the trial court’s denial of his motion to correct error
following the denial of his petition for permission to file a belated notice of appeal.
Rasaki raises two issues which we consolidate and restate as whether the court abused its
discretion in denying his motion to correct error following the summary denial of his
petition for permission to file a belated notice of appeal. We reverse and remand.
FACTS AND PROCEDURAL HISTORY
The relevant facts as discussed in Rasaki’s initial appeal follow:
On March 3, 2012, the State charged Rasaki with Class D felony
sexual battery and Class B misdemeanor battery. The State subsequently
amended the charge to include another count of Class B misdemeanor
battery. A bench trial was held on September 17, 2012. At the conclusion
of the evidence and argument, the trial court took the matter under
advisement. On September 25, 2012, the trial court found Rasaki guilty of
Class D felony sexual battery and Class B misdemeanor battery. The trial
court found Rasaki not guilty of the other count of battery, concluding that
it was “subsumed” by the Class D felony sexual battery conviction.
Rasaki filed a motion for extension of time on October 17, 2012,
seeking an extension of time to permit his recently-hired counsel to review
the record for purposes of filling [sic] a motion to correct error or a post-
conviction petition. The trial court granted this request the same day,
setting the sentencing hearing for November 26, 2012.
At the November 26 sentencing hearing, the trial court sentenced
Rasaki to concurrent terms of 545 days on the Class D felony conviction
and 180 days on the Class B misdemeanor conviction. The trial court
ordered that Rasaki serve 120 days executed, 245 days of home detention
through community corrections, and 180 days suspended to probation.
Rasaki filed a motion to correct error that same day, claiming there was
insufficient evidence to support his convictions. Rasaki then filed a petition
for postconviction relief on November 27, 2012. On November 30, 2012,
the trial court granted Rasaki’s motion to stay sentence pending appeal.
The State responded to Rasaki’s motion to correct error on December 11,
2012. On February 15, 2013, the trial court denied Rasaki’s motion to
correct error.
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Rasaki did not file a notice of appeal within thirty days of the trial
court’s order denying his motion to correct error, as required by Indiana
Appellate Rule 9(A). According to the CCS, on March 1, 2013, Rasaki
filed a motion for extension of time. The trial court ruled on Rasaki’s
motion on March 4, 2013, and the trial court’s CCS entry for this ruling
states that Rasaki’s motion was “GRANTED UNTIL 4–16–13 UNTIL
RULING ON PCR.” Appellant’s App. p. 12. The actual motion filed on
March 1 and the trial court’s order thereon do not appear to be in the record
before us. But based on information from Rasaki’s subsequent motions, it
is apparent that this motion sought to extend the time for the filing of his
notice of appeal.
On April 8, 2013, Rasaki filed a “Second Motion for Enlargement of
Time,” even though, by our count, this was actually his third motion for
enlargement of time. Appellant’s App. p. 55. In this motion, Rasaki
acknowledged that the trial court denied his motion to correct error on
February 14, 2013 and that he was therefore “required to file his Appeal
within thirty (30) days of said Order.” Id. The motion then states:
5. On February 28, 2013, Defendant filed a Request for
Enlargement of Time within which to file his appeal
pending the hearing on Defendant’s Petition for Post
Conviction relief which was then scheduled for March
25, 2013, at 8:30 a.m.; however all Court cases for
March 25, 2013, were cancelled because all
city/county offices were closed because of snow.
6. That Defendant’s hearing on the Petition for Post
Conviction Relief is now scheduled for April 18, 2013,
at 9:30 a.m. and therefore Defendant requires
additional time based upon the snow delay, as to
permit the Court to rule on the Petition for Post
Conviction Relief, evaluate such and file his Appeal.
7. That Defendant requests additional time until May 18,
2013, to receive and evaluate the Court’s ruling
following the upcoming hearing on April 18, 2013. . . .
Id.
The trial court granted Rasaki’s motion for enlargement of time on
April 8, 2013, and set the post-conviction hearing for April 18, 2013. The
magistrate who was to preside at this hearing, however, had to recuse, and
the post-conviction hearing was rescheduled for June 10, 2013.
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Accordingly, on May 5, 2013, Rasaki filed another motion for enlargement
of time, “as to permit the Court to rule on the Petition for Post Conviction
Relief” and permit Rasaki to “evaluate such and file his Appeal.” Id. at 58.
Rasaki requested until July 10, 2013, to file his appeal. The trial court
granted this motion on May 7, 2013.
On June 10, 2013, the trial court held a hearing on Rasaki’s post-
conviction petition, but had yet to rule on the motion as July 10, 2013,
approached. Rasaki therefore filed yet another motion for enlargement of
time on July 8, 2013, requesting “additional time until October 5, 2013 to
evaluate [the trial court’s post-conviction ruling] and file his Appeal.” Id.
at 62. The trial court denied this motion on July 15, 2013. Rasaki,
however, had already filed a notice of appeal on July 10, 2013.
Rasaki v. State, No. 49A05-1307-CR-330, slip op. at 2-4 (Ind. Ct. App. February 18,
2014).
On appeal, this court sua sponte raised the issue of the timeliness of Rasaki’s
appeal. Id. at 4-5. We observed that Rasaki filed multiple motions for enlargement of
time under Trial Rule 6(B) which applies only to time limits imposed under the Trial
Rules. Id. at 5-7. We held that under Ind. Appellate Rule 9(A), his notice of appeal was
due not later than thirty days after the trial court’s February 15, 2013, ruling on his
motion to correct error, i.e., March 18, 2013, and observed that his notice of appeal was
not filed until July 10, 2013, well beyond the deadline. Id. at 7. We observed that it was
apparent that Rasaki sought the extension of time so that he could first seek post-
conviction relief but that if Rasaki wished to bring a petition for post-conviction relief
prior to pursuing a direct appeal, the proper course of action would have been to timely
file his notice of appeal and then file a Davis/Hatton motion to suspend his direct appeal
during the post-conviction process.1 Id. at 6-7. We concluded that Rasaki had forfeited
1
See Hatton v. State, 626 N.E.2d 442 (Ind. 1993); Davis v. State, 267 Ind. 152, 368 N.E.2d 11494
his right to appeal and dismissed the appeal because Rasaki’s notice of appeal was
untimely. Id. at 7-8. We noted that Rasaki was not without remedy and that he may still
petition the trial court for permission to file a belated notice of appeal pursuant to Post-
Conviction Rule 2 if he “(1) failed to timely file a notice of appeal, (2) was not at fault for
this failure, and (3) was diligent in requesting permission to file a belated notice of
appeal.” Id. at 7 n.2 (citing Post-Conviction Rule 2(1)(a)).
On March 7, 2014, Rasaki filed a Verified Petition for Permission to File a
Belated Notice of Appeal Pursuant to Post-Conviction Rule 2. In his petition, Rasaki
detailed the procedural history and actions he had taken and he alleged that he had been
diligent in requesting permission to file a belated notice of appeal and that the delay did
not “evidence sleeping upon one’s rights.” Appellant’s Appendix at 108. Rasaki
attached this court’s decision dismissing his prior appeal. He also requested the trial
court to schedule a hearing on his request. On March 11, 2014, the court denied Rasaki’s
petition.
On March 19, 2014, Rasaki filed a Motion to Correct Error and Request for
Hearing. He argued that he had been diligent in requesting permission to file a belated
notice of appeal as demonstrated by the court proceedings and pleadings and that his
failure to file a timely notice of appeal was due to no fault of his own. He alleged that he
was an educated person but had no previous experience with the criminal justice system
or criminal laws, that he personally made no decision relative to his appeal or post-
conviction petition, that he was not aware of or informed of the Rules for Post-
(1977).
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Conviction Relief, and that he would have filed his notice of appeal within the thirty-day
deadline of Appellate Rule 9(A) had his request for enlargement of time been denied by
the trial court. On March 31, 2014, the trial court denied Rasaki’s motion to correct error
and request for hearing.
DISCUSSION
The issue is whether the court abused its discretion in denying his motion to
correct error following the summary denial of his petition for permission to file a belated
notice of appeal. Generally, we review a trial court’s denial of a motion to correct error
for an abuse of discretion. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). An abuse
of discretion occurs when the trial court’s decision is against the logic and effect of the
facts and circumstances before the court or if the court has misinterpreted the law. James
v. State, 872 N.E.2d 669, 671 (Ind. Ct. App. 2007).
Ind. Post-Conviction Rule 2(l)(a) provides:
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.
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. Johnson v. State, 903 N.E.2d 472, 474 (Ind. Ct. App. 2009)
(citing Moshenek v. State, 868 N.E.2d 419, 423 (Ind. 2007), reh’g denied). There are no
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set standards of fault or diligence, and each case turns on its own facts. Id. Several
factors are relevant to the defendant’s diligence and lack of fault in the delay of filing.
Id. These include “the defendant’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.The decision whether to grant permission to file a belated notice of appeal is
generally within the sound discretion of the trial court. Johnson, 903 N.E.2d at 474
(citing Moshenek, 868 N.E.2d at 422). Here, however, the trial court did not hold a
hearing before denying Rasaki’s petition; therefore, the only basis for its decision was
that contained in the paper record attached to his petition. See Baysinger v. State, 835
N.E.2d 223, 224 (Ind. Ct. App. 2005). Where a trial court does not hold a hearing before
ruling on a defendant’s petition to file a belated appeal, we owe no deference to the trial
court’s factual determinations and review a denial of a defendant’s petition de novo.
Moshenek, 868 N.E.2d at 422; Bosley v. State, 871 N.E.2d 999, 1002 (Ind. Ct. App.
2007).
Post-Conviction Rule 2 does not require the court to conduct a hearing, but a
hearing should be held where the petition raises a genuine factual dispute concerning the
existence of grounds for relief. Green v. State, 593 N.E.2d 1237, 1238 (Ind. Ct. App.
1992), trans. denied. In determining the existence of a genuine dispute the court is
entitled to consider the court’s records in the case. Id. “A petitioner may not create a
genuine factual dispute simply by the expedient of averring that what he previously said
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was untrue or that he was unadvised of something where the record clearly establishes the
contrary.” Id.Rasaki does not challenge the authority of this court to act sua sponte in the prior
decision, but believes that this court’s sua sponte actions “directed at protecting the rights
of criminal defendants who have been effectively denied due process, equal protection
and hence, fair trial by trial courts would be a more valuable endorsement of United
States Constitutional foundations than a highly technical and mechanical enforcement of
non-challenged time deadlines.” Appellant’s Brief at 9. He contends that he was diligent
based upon his filings of motions for enlargement of time in the trial court and that the
delay was not undue and did not prejudice the parties.
The State argues that Rasaki was at fault for the delay and was not diligent in
requesting permission to file a belated appeal. The State asserts that there is no evidence
in the record that Rasaki asked his attorney to file a notice of appeal, that he attempted to
file a notice of appeal during the 145-day delay, or that he asked his attorney to file a
belated notice of appeal or attempted to file a belated notice of appeal for over two years.
The State also argues that a hearing was not warranted because the petition did not raise a
genuine factual dispute concerning the existence of grounds for relief.
The record reveals that Rasaki was sentenced on November 26, 2012. That same
day, Rasaki filed a motion to correct error claiming that there was insufficient evidence to
support his convictions. He filed a petition for post-conviction relief on November 27,
2012. On February 15, 2013, the court denied his motion to correct error. Rasaki filed
multiple motions for extension of time which were granted by the trial court. On July 10,
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2013, Rasaki filed a notice of appeal. While this court’s prior decision held that the trial
court improperly granted Rasaki’s motions for enlargement of time, the trial court did
grant these motions and the propriety of Rasaki’s motions was not raised until it was
done so sua sponte by this court in its decision on February 18, 2014. Seventeen days
later, Rasaki filed a Verified Petition for Permission to File a Belated Notice of Appeal
Pursuant to Post-Conviction Rule 2.
In his petition, Rasaki detailed his previous filings, attached this court’s decision
dismissing his prior appeal, and stated that “he has been diligent in requesting permission
to file a belated notice of appeal as demonstrated by the aforementioned Court
proceedings and pleadings.” Appellant’s Appendix at 108. He also alleged that the delay
“did not evidence sleeping upon one’s rights” and requested a hearing. Id.Based upon the procedural history, including his motions for enlargement of time
that were improperly granted, but nonetheless initially granted by the trial court, we
conclude that the trial court erred in denying Rasaki’s petition for permission to file a
belated notice of appeal which he filed seventeen days after this court’s prior decision.2
2
To the extent the State cites Reid v. State, 883 N.E.2d 872 (Ind. Ct. App. 2008), and Beaudry v.
State, 763 N.E.2d 487 (Ind. Ct. App. 2002), we find those cases distinguishable. In Reid, the defendant
filed an unverified petition for permission to file a belated notice of appeal and did not include any facts
or evidence in support of the petition. Unlike in Reid, Rasaki filed a verified petition, detailed his filings,
and attached this court’s prior decision. In Beaudry, a hearing was held on the defendant’s petition for
leave to file a belated appeal and the defendant presented no evidence that the delay in filing a direct
appeal challenging the merits of his sentence was not his fault. Unlike in Beaudry, Rasaki did not have
the benefit of a hearing in which to present evidence and argument in support of his petition to file a
belated notice of appeal, and, moreover, he detailed his filings and attached this court’s prior decision.
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CONCLUSION
For the foregoing reasons, we reverse the trial court’s denial of Rasaki’s petition
for permission to file a belated notice of appeal and remand for proceedings consistent
with this opinion.
Reversed and remanded.
BARNES, J., and BRADFORD, J., concur.
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