Anthony Chandler v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 30 2018, 8:53 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Anthony B. Chandler Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Chandler, July 30, 2018
Appellant-Petitioner, Court of Appeals Case No.
67A01-1706-MI-1481
v. Appeal from the Putnam Superior
Court
State of Indiana, The Honorable Charles D. Bridges,
Appellee-Respondent. Judge
Trial Court Cause No.
67D01-1701-MI-5
Bailey, Judge.
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Case Summary
[1] Pro-se Appellant Anthony Chandler (“Chandler”) appeals the denial of his
petition for permission to file a belated notice of appeal. He presents a single
issue for review, as articulated by this Court in its order reinstating for a limited
purpose the appeal after dismissal: whether the trial court erred in denying
Chandler’s petition made pursuant to Indiana Trial Rule 72(E). We affirm.
Facts and Procedural History
[2] On February 26, 2001, a jury found Chandler guilty of one Class B felony and
one Class C felony. On March 27, 2001, Chandler received consecutive
sentences of twenty years and eight years, respectively, to be served in the
Indiana Department of Correction (“the DOC”). Chandler was eventually
discharged on the Class C felony and was released on parole as to the Class B
felony on March 14, 2010.1 His parole was revoked on July 19, 2016.
[3] On December 20, 2016, Chandler filed a petition for writ of habeas corpus,
alleging that his parole had been revoked after its expiration on June 11, 2016,
and he was being illegally detained.2 On February 24, 2017, the trial court,
1
Because Chandler had been convicted of a qualifying sex offense, his parole could be up to ten years. Ind.
Code § 35-50-6-1(d). He had a maximum release date of September 12, 2019.
2
Chandler’s original Appellant’s Brief, filed August 10, 2017, indicates that he sought a determination of
whether he had been serving his consecutive sentences simultaneously. He contended that his detention was
illegal because “the service of partial, hybrid, and/or blended sentences are not a part of Indiana’s statutory
scheme.” Appellant’s Brief at 19.
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having treated the petition for a writ of habeas corpus as a petition for post-
conviction relief, issued findings of fact and conclusions thereon and denied
Chandler’s petition. The Chronological Case Summary reflects “input” of that
decision on March 2, 2017. (Amended App., Vol. II, pg. 3.)
[4] Also on March 2, 2017, Chandler filed a motion to strike, which was denied
one day later. On March 6, 2017, Chandler filed a motion for discovery. The
next day, the Putnam County Clerk (“the Clerk”) made an entry in the
Chronological Case Summary to reflect that the motion was returned as moot,
with the case having been disposed of on February 24, 2017. On March 8,
2017, the Clerk made a notation “Issued CCS to Pet and Plaintiff.” (Amended
App., Vol. II, pg. 4.)
[5] On March 17, 2017, mail for Chandler was returned to the Clerk as
undeliverable. The DOC had transferred Chandler to another facility one week
earlier. The Clerk then sent notice of the final judgment to the New Castle
Correctional Facility, and Chandler received this notice on March 24, 2017. 3
[6] On April 13, 2017, Chandler filed a belated motion to correct error; that motion
was denied six days later. On April 28, 2017, Chandler filed a petition for
permission to file a belated notice of appeal. The trial court denied the petition
on May 4, 2017. On May 19, 2017, Chandler filed a second petition for
3
This date is derived from Chandler’s representations in his petitions for permission to file a belated Notice
of Appeal, filed April 28, 2017 and May 19, 2017, and his motion to correct error filed April 13, 2017.
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permission to file a belated notice of appeal. On June 2, 2017, the trial court
denied the petition.
[7] On June 27, 2017, Chandler filed his Notice of Appeal. Upon the State’s
motion, the appeal was dismissed, with prejudice, on November 27, 2017.
Chandler petitioned for rehearing, asserting that he had not timely received
notice of the February 24, 2017 judgment. On February 7, 2018, this Court
entered an order granting, in part, the petition for rehearing. Chandler was
granted thirty days to file an amended brief pertaining to the sole issue of
whether the trial court erred in its June 2, 2017 denial of Chandler’s petition for
permission to file a belated notice of appeal made pursuant to Trial Rule 72(E).
Chandler and the State filed briefs to proceed with the limited appeal.
Discussion and Decision
[8] Our Indiana Supreme Court has held that, when a party seeks to extend a filing
deadline based upon a claim of failure to receive notice of a final judgment,
Indiana Trial Rule 72 is the “sole vehicle” for relief. Collins v. Covenant Mut. Ins.
Co., 644 N.E.2d 116, 117 (Ind. 1994). Specifically, Rule 72(E) provides:
Lack of notice, or the lack of the actual receipt of a copy of the
entry from the Clerk shall not affect the time within which to
contest the ruling, order or judgment, or authorize the Court to
relieve a party of the failure to initiate proceedings to contest
such ruling, order or judgment, except as provided in this section.
When the service of a copy of the entry by the Clerk is not
evidenced by a note made by the Clerk upon the Chronological
Case Summary, the Court, upon application for good cause
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shown, may grant an extension of any time limitation within
which to contest such ruling, order or judgment to any party who
was without actual knowledge, or who relied upon incorrect
representations by Court personnel. Such extension shall
commence when the party first obtained actual knowledge and
not exceed the original time limitation.
[9] We review a trial court’s ruling concerning Trial Rule 72(E) for an abuse of
discretion. Driver v. State, 954 N.E.2d 972, 973 (Ind. Ct. App. 2011), trans.
denied. An abuse of discretion occurs if the trial court’s ruling is clearly against
the logic and effect of the facts and circumstances before it. Id.
[10] Lack of notice is a prerequisite for relief under Rule 72(E). Atkins v. Veolia
Water Indpls., LLC, 994 N.E.2d 1287, 1289 (Ind. Ct. App. 2013). Here, the trial
court rendered the judgment adverse to Chandler on February 24, 2017 and the
Clerk made a corresponding entry into the Chronological Case Summary on
March 2, 2017. Indiana Appellate Rule 9(A)(1) provides that a party initiates
an appeal by “conventionally filing a Notice of Appeal within thirty days after
the entry of a Final Judgment is noted in the Chronological Case Summary.”
Prior to this deadline, Chandler had received notice of the decision.
[11] And even where Rule 72(E) is applicable, “[an] extension shall commence
when the party first obtained actual knowledge and not exceed the original time
limitation.” For example, in Driver, a copy of an order was mailed to Driver’s
counsel’s office and was placed in a file without counsel’s review. 954 N.E.2d
at 972. Driver later inquired about the status of his case and the trial court sent
Driver a copy of the judgment on September 7, 2010. Id. Driver filed a motion
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for relief on October 29, 2010. Id. On appeal from the trial court’s denial of
relief under Trial Rule 72(E), this Court held that Driver was not entitled to
relief because he did not file his motion within thirty days after receiving actual
notice of the order. Id. at 973.
[12] On March 24, 2017, Chandler had actual knowledge of the adverse decision; he
did not file his petition for permission to file a belated notice of appeal until
April 28, 2017. He filed his second petition on May 19, 2017. Chandler did
not seek Trial Rule 72(E) relief within thirty days after receiving actual notice of
the judgment, and was accordingly not entitled to relief under that rule.
Conclusion
[13] The trial court did not abuse its discretion in denying Chandler relief pursuant
to Trial Rule 72(E).
[14] Affirmed.
Mathias, J., and Bradford, J., concur.
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