Larry D. Blanton, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Feb 08 2018, 6:05 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
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
Larry David Blanton, Jr. Curtis, T. Hill, Jr.
New Castle, Indiana Attorney General of Indiana
Kelly A. Loy
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Larry D. Blanton, Jr., February 8, 2018
Appellant-Defendant, Court of Appeals Case No.
53A05-1708-CR-1895
v. Appeal from the Monroe Circuit
Court
State of Indiana, The Honorable Mary Ellen
Appellee-Plaintiff Diekhoff, Judge
Trial Court Cause No.
53C05-0404-FA-360
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 53A05-1708-CR-1895 | February 8, 2018 Page 1 of 4
[1] Larry David Blanton, Jr., pro se, appeals the trial court’s denial of his petition
to file a belated appeal from the denial of his motion to correct erroneous
sentence.
[2] We affirm.
Facts & Procedural History
[3] Following a jury trial in February 2006, Blanton was convicted of three counts
of Class A felony child molesting and one count of Class C felony child
molesting. The trial court imposed an aggregate sentence of 105 years in
prison, with 30 of those years suspended. On direct appeal, Blanton challenged
the sufficiency of the evidence supporting his convictions and the
appropriateness of his sentence. Blanton prevailed on the sentencing argument,
and his aggregate sentence was reduced to 30 years in prison. Blanton v. State,
Cause No. 53A01-0606-CR-226 (Ind. Ct. App. April 19, 2007). On remand,
the trial court resentenced Blanton accordingly on October 12, 2007.
[4] On February 24, 2017, Blanton filed a pro se motion to correct erroneous
sentence, along with a memorandum of law. Following the State’s response,
the trial court denied the motion on April 24, 2017. Due to a mailing error,
Blanton apparently did not receive a copy of this order until May 22, 2017, and
he claims that access to the prison’s law library was restricted from this date
though May 26, 2017.
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[5] On June 26, 2017, Blanton filed a motion for leave to file a belated notice of
appeal pursuant to Indiana Post-Conviction Rule 2(1), which was denied by the
trial court on July 19, 2017. Blanton appeals from that denial, claiming that the
trial court abused its discretion.
Discussion & Decision
[6] Indiana Appellate Rule 9(A)(5) provides that unless the notice of appeal is
timely filed, the right to appeal shall be forfeited except as provided by P-C.R.
2. Relying on P-C.R. 2(1)(a), Blanton argues that his failure to file a timely
notice of appeal was not his fault and that he had been diligent in requesting
permission to file a belated notice of appeal. Regardless, Blanton is not an
eligible defendant for purposes of P-C.R. 2 because he is not pursuing a direct
appeal.1 Our Supreme Court has consistently recognized that P-C.R. 2 “applies
only to direct appeals of criminal convictions” and cannot be used to salvage a
late appeal of the denial of a motion to correct erroneous sentence. In re
Adoption of O.R., 16 N.E.3d 965, 970 n.2 (Ind. 2014) (emphasis in original); see
also Davis v. State, 771 N.E.2d 647, 649 (Ind. 2002) (“P-C.R. 2(1) does not
permit belated appeals of motions to correct erroneous sentences”), abrogated in
part on other grounds by O.R., 16 N.E.3d 965. Accordingly, the trial court did not
1
P-C.R. 2 defines an “eligible defendant” as “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, filing a motion to correct error, or pursuing an appeal.”
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err when it denied Blanton’s motion for leave to file a belated notice of appeal
from the denial of his motion to correct erroneous sentence.
[7] Judgment affirmed.
[8] May, J. and Vaidik C.J., concur.
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