Michael Warren 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
establishing the defense of res judicata, Apr 19 2013, 9:04 am
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JACK QUIRK GREGORY F. ZOELLER
Muncie, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL WARREN, )
)
Appellant-Defendant, )
)
vs. ) No. 18A02-1210-CR-870
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable John M. Feick, Judge
Cause No. 18C04-0603-FA-5
April 19, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Michael Warren (“Warren”) belatedly appeals the sanction imposed following the
revocation of his probation. The dispositive issue is whether the trial court erred when it
granted Warren leave to file a belated notice of appeal of the probation revocation order.
We dismiss.
Facts and Procedural History
In 2006, Warren pleaded guilty to Class B felony dealing in cocaine and Class B
felony possession of cocaine. He was ordered to serve an aggregate sentence of twenty
years in the Department of Correction, with eighteen years executed and two years
suspended on each count, with the sentences to run concurrently. In 2011, Warren filed a
petition to modify his sentence. The trial court granted his petition and stayed the
remainder of the Warren’s sentence on the condition that Warren successfully complete
both the Delaware Forensic Diversion Program and the previous terms of his petition.
Appellant App. pp. 105-107.
On May 11, 2012, the State filed a petition to revoke Warren’s placement in the
Delaware Forensic Diversion Program, alleging that he was charged with possession of
cocaine on May 4, 2012, and that he also tested positive for THC on December 12, 2011.
On May 24, 2012, the State amended its petition, adding an allegation that Warren was in
possession of “spice,” i.e. synthetic marijuana, on May 17, 2012. On July 26, 2012, the
State amended its petition for a third time after Warren was charged with battery and
driving with a suspended license, following a prior conviction for driving while
suspended.
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On August 22, 2012, an evidentiary hearing was held. Warren admitted to the
allegations against him in the State’s amended Petition for Revocation. On September 5,
2012, the trial court found that Warren had violated the terms of his suspended sentence
and ordered the remainder of Warren’s twenty-year sentence to be executed in the
Indiana Department of Correction. Warren filed a Motion for Permission to File Belated
Notice of Appeal on October 15, 2012. The trial court granted Warren permission to file
a belated Notice of Appeal in an order dated October 15, 2012. Warren filed a Notice of
Appeal on October 29, 2012.
Discussion and Decision
The State contends that the trial court had no authority to permit Warren to file a
belated notice of appeal. It is undisputed that the revocation of Warren’s probation was a
final judgment and that Warren did not file either a motion to correct error or a notice of
appeal within thirty days after that judgment. The failure to file a timely notice of appeal
forfeits the right to appeal except as provided by Indiana Post-Conviction Rule 2. App. R.
9 (A) (5).
Here, however, Warren sought and was granted permission to file a belated notice
of appeal of the trial court’s order revoking his probation. Thus, the State presents a pure
question of law regarding the construction of Post-Conviction Rule 2. We evaluate
questions of law under a de novo standard and owe no deference to the trial court
determinations. McCown v. State, 890 N.E.2d 752, 756 (Ind. Ct. App. 2008).
The State contends that Warren is not eligible for belated appeal under the rule.
We must agree. “The plain definition encompasses those who possessed the right but
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failed to file a timely direct appeal of a conviction or sentence after a trial or plea of
guilty.” Dawson v. State, 938 N.E.2d 841, 844-845 (Ind. Ct. App. 2010), trans granted,
opinion adopted, 943 N.E.2d 1281 (Ind. 2011). In this probation revocation hearing,
Warren cannot and does not challenge his conviction or sentence imposed upon that
conviction. Rather, he argues that the trial court misinterpreted the law when imposing
the sanction for revocation of his probation. Our courts have strictly construed Post-
Conviction Rule 2 and have held that, “belated appeals from orders revoking probation
are not presently available pursuant to Post-Conviction Rule 2.” Dawson v. State, 943
N.E.2d 1281 (Ind. 2011). “[T]he sanction imposed when probation is revoked does not
qualify as a “sentence” under the Rule.” Id. Therefore, Warren is not an eligible
defendant.
Timeliness of appeal is jurisdictional. “The Court of Appeals lacks subject matter
jurisdiction over appeals other than direct appeals, unless such appeals are timely
brought.” Davis v. State, 771 N.E.2d 647, 649 (Ind. 2002) (quoting Greer v. State, 685
N.E.2d 700, 703 (Ind. 1997)); Ind. Appellate Rule 9. Because Warren failed to file his
appeal in a timely fashion and there is no belated appeal available to him, we dismiss for
lack of subject matter jurisdiction.
Dismissed.
BAKER, J., and MAY, J., concur.
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