Michael Lee Massing v. State of Indiana

FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any May 17 2012, 9:28 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
CHRIS HITZ-BRADLEY MONIKA PREKOPA TALBOT
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL LEE MASSING, )
)
Appellant-Defendant, )
)
vs. ) No. 20A04-1110-CR-602
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Gene R. Duffin, Special Judge
Cause No. 20C01-9701-CF-4
May 17, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Petitioner, Michael Lee Massing (Massing), appeals the trial court’s
denial of his petition to file a belated notice of appeal.
We affirm.
ISSUE
Massing raises one issue on appeal, which we restate as: Whether the trial court
properly determined that Massing had not been diligent in seeking an appeal of his
sentence following his plea agreement.
FACTS AND PROCEDURAL HISTORY
On January 27, 1997, the State filed an Information charging Massing with
murder, a felony. On March 27, 1997, Massing pled guilty pursuant to a guilty plea
agreement which capped his sentence at fifty-five years. On May 1, 1997, the trial court
sentenced Massing to the maximum sentence allowed under the plea. The plea
agreement included the statement that Massing “reserves the right to file for sentence
modification.” (Petitioner’s Exh. A, p. 2). On September 15, 1997, Massing filed a
praecipe for his guilty plea transcript, which the trial court granted. The transcript was
mailed to Massing on December 9, 1997. On January 14, 2000, Massing filed another
request for a transcript of his guilty plea hearing, alleging that he had lost the first copy.
The trial court denied his request.
On December 8, 2006, Massing filed a motion to modify his sentence. On
December 21, 2006, the trial court found that because more than a year had passed since
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sentencing, it did not have jurisdiction to decide the motion without the State’s
recommendation and referred the motion to the State.1 On January 8, 2007, Massing filed
a motion to correct error. The trial court took the motion under advisement and requested
a progress report from the Indiana Department of Correction. On June 7, 2007, in the
absence of the progress report, the trial court denied Massing’s motion to correct error.
On June 25, 2007, Massing filed a verified petition for leave to file a belated
notice of appeal which was denied by the trial court without a hearing. Massing appealed
and we remanded the case for an evidentiary hearing. See Massing v. State, 20A04-0705-
CR-461 (Ind. Ct. App. Jan. 14, 2008). Thereafter, the trial court held an evidentiary
hearing on March 10 and July 22, 2011. During the hearing, Massing’s trial counsel
testified that at the time of Massing’s guilty plea, he did not customarily advise his clients
of their appellate rights because he left that to the trial judge’s discretion. However, as a
general rule, he explained sentence modifications to his clients. Massing stated during
the hearing that it was his understanding from the plea agreement that he would return to
court within a year after sentencing for a sentence modification. He clarified that he was
not aware of his right to appeal his sentence until 2006, when he talked to a law clerk at
the Indiana State Prison. Massing testified that he had obtained his GED in 2001, his
associate degree in 2004, and his bachelor’s degree in 2006. On September 30, 2011, the
trial court denied Massing’s petition to file a belated appeal.
Massing now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
1
The Chronological Case Summary does not include the State’s recommendation.
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Indiana Post-Conviction Rule 2(1) provides a defendant an opportunity to petition
the trial court for permission to file a belated notice of appeal. It provides that
[w]here an eligible defendant convicted after a trial or plea of guilty fails to
file a timely notice of appeal, a petition for permission to file a belated
notice of appeal for appeal of the conviction may be filed with the trial
court where:
(a) the failure to file a timely notice of appeal was not due to the fault of the
defendant; and
(b) the defendant has been diligent in requesting permission to file a belated
notice of appeal under this rule.
The decision whether to grant permission to file a belated notice of appeal is
within the sound discretion of the trial court. Moshenek v. State, 868 N.E.2d 419, 422
(Ind. 2007). 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. Id. There are no 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. 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. at 423. Because
diligence and relative fault are fact sensitive, we give substantial deference to the trial
court’s ruling. Id.Initially, we note that the trial court failed to inform Massing of his appellate
rights during his sentencing hearing. In Moshenek, our supreme court elaborated that:
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In order to meet the requirements of Post-Conviction Rule 2, it is not
sufficient to point only to the fact that the trial court did not advise the
defendant of the right to appeal a sentence after an “open plea.” The right
to appeal a sentence is not among those rights of which a trial court is
required to inform a defendant before accepting a guilty plea. The fact that
a trial court did not advise a defendant about this right can establish that the
defendant was without fault in the delay of filing a timely appeal.
However, a defendant still must establish diligence. Several factors are
relevant to this inquiry. Among them are the overall passage of time; the
extent to which the defendant was aware of relevant facts; and the degree to
which delays are attributable to other parties, as . . . , the preparation of
transcripts. When the overall time stretches into decades, a belated appeal
becomes particularly problematic because of the risk that significant
problems will be encountered in any retrial due to unavailable evidence or
witnesses or failing memories.
Id. at 424.
Massing pled guilty in March of 1997 and was sentenced on May 1, 1997. He did
not file a praecipe within thirty days of his sentencing. However, within four months of
sentencing, in September 1997, Massing filed a praecipe for his guilty plea transcript
which was granted and the transcript was mailed to him on December 9, 1997.
Subsequently, two years later, on January 14, 2000, he requested another copy of this
transcript, which was denied by the trial court. Thereafter, Massing failed to pursue any
relief until six years later, on December 8, 2006, when he filed a motion to modify his
sentence. After the trial court’s denial of his motion for sentence modification, Massing
filed his petition to file a belated appeal.
We cannot say that Massing was diligent in pursuing his petition to file a belated
appeal under Post-Conviction Rule 2. Even though Massing quickly obtained a copy of
the transcript of the guilty plea hearing, he sat on his rights for nine years following his
sentencing, until December 8, 2006, when he initiated a motion to modify his sentence.
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Furthermore, Massing’s conviction for murder was not his first encounter with the
criminal system: the record indicates that Massing appeared in several juvenile
proceedings and appeared before a military tribunal. Moreover, Massing is not
uneducated: he furthered his education while incarcerated by obtaining his GED, his
associate degree, and his bachelor’s degree. He worked in the prison library, had access
to books, and the prison law clerk.2 In light of these facts, Massing could have acted on
his sentence challenge well before he actually did. We affirm the trial court’s denial of
his petition to file a belated appeal.
CONCLUSION
Based on the foregoing, we conclude that the trial court properly determined that
Massing had not been diligent in seeking an appeal of his sentence following a plea
agreement.
Affirmed.
NAJAM, J. and DARDEN, J. concur
2
Massing also asserts that a petition for post-conviction relief was the only way to challenge a sentence
after a guilty plea at the time of his conviction. We disagree. In 1996, the year before Massing pled
guilty, our supreme court stated in Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind. 1996) that although a
direct appeal may not be used to allege errors involving a conviction based upon a guilty plea, it may be
used to challenge sentencing errors.
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