Appeals court rejects belated post-conviction appeal

A post-conviction petitioner who failed to timely file a notice of appeal has permanently extinguished his opportunity to appeal and cannot invoke Post-Conviction Rule 2(1) to file his belated notice of appeal, the Indiana Court of Appeals ruled Thursday.

After Derek Core was denied his petition for post-conviction relief from his conviction of Class C felony robbery and habitual offender adjudication, Core was granted permission to file a belated notice of appeal from the order denying his post-conviction relief. In his petition, Core sought to invoke the provisions of Rule 2(1).

When Core failed to timely file a subsequent notice of appeal with the Indiana Court of Appeals, he filed a motion to file a belated brief. A motions panel granted that request, despite the state’s contentions that Core had forfeited his right to appeal because he had failed to file a timely notice of appeal from the denial of his petition for post-conviction relief. The state further argued that Rule 2(1) was not applicable to a post-conviction judgment.

The Indiana Court of Appeals reconsidered the motions panel’s ruling, finding that Core had forfeited his appellate claims by failing to timely file a notice of appeal as required by Indiana Appellate Rules.

Specifically, the appellate court noted that Core forfeited his right to appeal pursuant to Appellate Rule 9(A)(5) when he filed his notice of appeal 88 days later than was required by his Aug. 19, 2016 deadline. It also found error with the post-conviction court’s grant of Core’s petition to avoid forfeiture by petitioning the post-conviction court for permission to file a belated notice of appeal under Rule 2(1).

“Post-Conviction Rule 2 applies only to an ‘eligible defendant,’ which 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,’” Judge Rudolph Pyle III wrote. “Our Indiana Supreme Court has held that Post-Conviction Rule 2(1) does not apply to post-conviction proceedings and that it is a ‘vehicle for belated direct appeals alone.’”

The appellate court further noted that the high court’s precedent also states an appellate court may restore a right of appeal that has been forfeited if there are “extraordinarily compelling reasons to do so” under certain circumstances.

But finding no extraordinarily compelling reasons as to why Core’s forfeited right should be restored, it dismissed Core’s appeal in Derek Core v. State of Indiana, 91A02-1611-PC-2604. https://www.in.gov/judiciary/opinions/pdf/04241901rrp.pdf

“Here, Core forfeited his right to appeal by failing to timely file his notice of appeal with our Court following the denial of his petition for post-conviction relief,” Pyle continued.

“Core cannot use the exception under Post-Conviction Rule 2(1) to belatedly appeal because our Indiana Supreme Court has repeatedly held that Post-Conviction Rule 2(1) does not permit belated consideration of an appeal from a post-conviction or other post-judgment proceedings,” the court concluded.  

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