The Indiana Court of Appeals decided Wednesday that it did have jurisdiction to hear a prisoner’s petition for post-conviction relief that was filed 31 days after the trial court denied him relief. But the man was unsuccessful before the appellate court.
Erik Morales was convicted of two counts of child molestation and one count of attempted child molestation, all Class A felonies, related to conduct with his stepdaughter. He appealed, but his convictions were affirmed. Morales then sought PCR pro se, alleging ineffective assistance of trial counsel. The post-conviction court denied him relief July 8, 2013.
Morales filed his notice of appeal 31 days later on Aug. 8, 2013. The state argues that because the notice was filed one day outside of the 30-day time period to appeal following a final judgment, the COA should dismiss for lack of jurisdiction.
The COA declined, citing In re Adoption of O.R., 21S01-1409-AD-592, in which the Indiana Supreme Court clarified last month that failure to timely file a notice of appeal is not jurisdictional.
“We do not lack jurisdiction over Morales’s appeal and we believe that the ‘extraordinary compelling reasons’ for non-forfeiture recognized by our Indiana Supreme Court is not determined solely from the perspective of the litigant. This Court has an interest in judicial economy and bringing finality to proceedings by post-conviction petitioners,” Judge L. Mark Bailey wrote in Erik Morales v. State of Indiana, 10A01-1308-PC-353.
But, Morales’ argument on appeal failed to sway the COA to grant him relief. Morales claimed that a nurse at trial provided erroneous testimony as to what constitutes penetration of the female sex organ and his trial counsel was thus ineffective for not presenting an expert witness to provide accurate testimony.
“Apparently, Morales is of the opinion that penetration of female external genitalia does not constitute penetration of the female sex organ. However, this contention is not consistent with Indiana law,” Bailey wrote. “Morales’s trial counsel was not ineffective for failure to claim that penetration did not occur.”