Brandon Kincheloe v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of Jun 10 2014, 9:13 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES A. SHOAF GREGORY F. ZOELLER
Columbus, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRANDON KINCHELOE, )
)
Appellant-Defendant, )
)
vs. ) No. 03A05-1312-CR-640
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen R. Heimann, Judge
Cause No. 03C01-1212-FD-6365
June 10, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge
Case Summary
The State of Indiana filed a verified petition to revoke Brandon Kincheloe’s
probation. At the revocation hearing, Kincheloe admitted to violating his probation. The
trial court revoked his probation and ordered him to serve the balance of his previously
suspended sentence of twenty months in the Department of Correction. Kincheloe’s
counsel filed an amended petition for permission to file a belated notice of appeal pursuant
to Indiana Post-Conviction Rule 2, which the trial court granted. However, because the
Indiana Supreme Court has decided that belated appeals from orders revoking probation
are not eligible for appeal pursuant to Post-Conviction Rule 2, we dismiss this appeal.
Facts and Procedural History
In April 2013 Kincheloe pled guilty to stalking, a Class D felony. The trial court
sentenced him to ten months in the Bartholomew County Jail and twenty months in the
Department of Correction, suspended to probation. Four months later, the State filed a
verified petition to revoke Kincheloe’s probation. At the October 14, 2013 revocation
hearing, Kincheloe admitted to violating his probation. That same day, the court found
that Kincheloe violated his probation and ordered him to serve the balance of his previously
suspended twenty-month sentence in the Department of Correction. Appellant’s App. p.
18-19, 20-21. On November 7, 2013, Kincheloe’s trial counsel moved to withdraw and
requested appointment of new counsel for appeal; this motion was granted and appellate
counsel was appointed. On November 20, 2013, Kincheloe’s new counsel filed a Post-
Conviction Rule 2 petition for permission to file a belated notice of appeal. This petition
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was denied; however, the trial court granted counsel’s amended petition for permission to
file a belated notice of appeal that was filed on December 5, 2013. Id. at 13.
This belated appeal now ensues.
Discussion and Decision
Kincheloe challenges the trial court’s imposition of the balance of his previously
suspended twenty-month sentence. The State cross-appeals, arguing that belated appeals
from orders revoking probation are not available pursuant to Post-Conviction Rule 2. We
agree with the State.
Post-Conviction Rule 2 provides:
Eligible defendant defined. An “eligible defendant” for purposes of this Rule
is 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.
The sanction imposed when probation is revoked does not qualify as a “sentence” under
Post-Conviction Rule 2. Dawson v. State, 938 N.E.2d 841, 845 (Ind. Ct. App 2010),
adopted and incorporated by reference by 943 N.E.2d 1281 (Ind. 2011).
[T]he action taken by a trial court in a probation revocation proceeding is not
a “sentencing.” The court is merely determining whether there has been a
violation of probation and, if so, the extent to which the court’s conditional
suspension of the original sentence should be modified and/or whether
additional conditions or terms of probation are appropriate.
Id. (quoting Jones v. State, 885 N.E.2d 1286, 1289 (Ind. 2008)). Therefore, Kincheloe is
not an “eligible defendant.” Because belated appeals from orders revoking probation are
not presently available pursuant to Post-Conviction Rule 2, see Dawson, 943 N.E.2d at
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1281, this matter is not properly before us due to the lack of a timely notice of appeal. We
therefore decline to consider this appeal.
Dismissed.
NAJAM, J., and BROWN, J., concur.
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