Amy Morinskey v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 19 2017, 10:57 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Earl McCoy Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Amy Morinskey, January 19, 2017 Appellant-Defendant, Court of Appeals Case No. 79A04-1604-CR-981 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Thomas H. Busch, Appellee-Plaintiff. Judge Trial Court Cause No. 79C01-1201-FA-2

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 79A04-1604-CR-981 | January 19, 2017 Page 1 of 10

Statement of the Case [1] Amy Morinskey (“Morinskey”) attempts to appeal from two underlying causes.

Specifically, she seeks to appeal: (1) her sentence from one cause in which she

pled guilty to Level 5 possession of methamphetamine1 and Class A

misdemeanor false informing;2 and (2) the trial court’s order, in a probation

revocation cause, for her to serve one year in the Department of Correction

after she agreed to admit to the violations contained in the State’s motion to

commit her to the Department of Correction. [2] The State requests that Morinskey’s appeal be dismissed because she failed to

file a timely notice of appeal and has not sought, from the trial court,

permission to file a belated notice of appeal pursuant to Post-Conviction Rule

2(1). Because we conclude that Morinskey has forfeited her right to appeal by

failing to timely file her notice of appeal and because we find no extraordinary

compelling reasons to restore that forfeited right, especially where she can seek

permission to file a belated notice of appeal under the Post-Conviction Rules for

her sentencing challenge, we dismiss the appeal. [3] We dismiss.

1 IND. CODE § 35-48-4-6.1. 2 I.C. § 35-44.1-2-3.

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Issue Whether this appeal should be dismissed because Morinskey failed to timely file a notice of appeal.3

Facts [4] Because of our disposition of this appeal, we will focus on the procedural facts

and will not delve into detailed substantive facts surrounding the events of the

two causes from which Morinskey appeals. [5] In January 2012, the State charged Morinskey, under Cause 79C01-1201-FA-2

(“Cause FA-2”), with Count I, Class A felony dealing in methamphetamine;

Count II, Class C felony possession of methamphetamine; and Count III, Class

A misdemeanor, possession of paraphernalia. In May 2012, Morinskey pled

guilty to an amended Count I, Class B felony dealing in methamphetamine in

exchange for the dismissal of the remaining counts. Thereafter, in June 2012,

the trial court sentenced Morinskey to twelve (12) years, with eight (8) years

executed in the Department of Correction and four (4) years suspended to

probation. One year of Morinskey’s probation was to be served on community

corrections. The trial court also recommended that Morinskey be placed in the

Purposeful Incarceration Program.

3 As part of her appeal, Morinskey challenged the trial court’s discretion when sentencing her and the appropriateness of her sentence in one cause and her incarceration placement in her probation revocation cause. As part of the State’s cross-appeal, the State raised this challenge to the timeliness of the notice of appeal. Because we conclude that the State’s argument regarding the timeliness of Morinskey’s notice of appeal is dispositive, we address only that issue.

Court of Appeals of Indiana | Memorandum Decision 79A04-1604-CR-981 | January 19, 2017 Page 3 of 10 [6] The trial court later modified Morinskey’s placement for her executed sentence.

The trial court first placed her a community transition program and then in a

community corrections program. Even after violating the terms of the

community corrections program in 2015, the trial court allowed her to remain

in community corrections to serve her executed sentence. [7] On September 8, 2015, the State filed a Motion to Commit, in which it sought

to revoke Morinskey’s community corrections placement. In the motion, the

State alleged that Morinskey had failed to follow the trial court’s order to report

to the Tippecanoe County Community Corrections to serve her executed

sentence and had failed to pay the balance owed to them. The State also noted

that Morinskey was not incarcerated in the Department of Correction or in the

county jail. The trial court then issued a warrant for Morinskey’s arrest. [8] On October 18, 2015, officers from the Lafayette Police Department initiated a

traffic stop of a vehicle in which Morinskey was a passenger. When questioned

by the officers, Morinskey identified herself with a false name, attempting to

avoid the arrest warrant issued for her. During a search of the vehicle, the

officers found methamphetamine and drug paraphernalia. The officers

ultimately figured out Morinskey’s true identity and arrested her. When the

police booked Morinskey into the jail, they discovered a bag of

methamphetamine on her person. [9] Subsequently, the State charged Morinskey, under Cause 79C01-1510-F5-24

(“Cause F5-24”), with the following: Count I, Level 6 felony possession of

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methamphetamine; Count II, Class C misdemeanor possession of

paraphernalia; Count III, Class A misdemeanor false informing; and Count IV,

Level 5 possession of methamphetamine (while having a prior dealing in

methamphetamine conviction). [10] On October 29, 2015, the State filed, in Cause FA-2, a petition to revoke

Morinskey’s probation. On November 10, 2015, the trial court held an initial

hearing on the probation revocation petition. [11] On December 29, 2015, Morinskey entered into a plea agreement that

addressed Cause F5-24 and Cause FA-2. In regard to F5-24, Morinskey agreed

to plead guilty to Count III, Class A misdemeanor false informing, and Count

IV, Level 5 possession of methamphetamine, in exchange for the dismissal of

the remaining two charges. As for Cause FA-2, Morinskey agreed to admit to

the allegation contained in the State’s Motion to Commit in exchange for the

State’s dismissal of the petition to revoke her probation in its entirety.

Additionally, she agreed that sentencing would be open to the trial court’s

discretion. [12] On February 19, 2016, the trial court held a combined hearing to address

sentencing in Cause F5-24 and the Motion to Commit and probation revocation

petition in Cause FA-2. During the hearing, Morinskey’s counsel confirmed

that Morinskey was “admit[ing] to a motion to commit to the Department of

Correction[.]” (Tr. 4). Additionally, the parties confirmed to the trial court

that it was to revoke one year of her probation and leave the remaining

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probation intact. Pursuant to the parties’ agreement, the trial court dismissed

the State’s petition to revoke Morinskey’s entire probation in Cause FA-2 and

revoked only one (1) year. The trial court ordered Morinskey to serve that one-

year term in the Department of Correction, and it set aside the previous

requirement that she serve one year of her probation on community corrections.

For Cause F5-24, the trial court imposed a four (4) year sentence for her Level 5

felony possession of methamphetamine conviction and a 224 day sentence for

her Class A misdemeanor false informing conviction. The trial court ordered

these two counts to be served consecutively to each other and to the executed

term in Cause FA-2. The trial court’s orders in Cause F5-24 and Cause FA-2

were signed by the trial court on February 19, 2016. At the end of the hearing,

the trial court informed Morinskey that she had the right to appeal her sentence

and that, to do so, she would be required to file a notice of appeal within thirty

days. Therefore, Morinskey’s notice of appeal was due on or before March 21,

2016.4 [13] On March 9, 2016, Morinskey sent the trial court a letter, in which she stated

that she wanted to appeal her sentence. The trial court treated the letter as a

notice of appeal and appointed appellate counsel for Morinskey. On April 4,

2016, Morinskey’s counsel filed, with the trial court, an “amended” notice of

4 Thirty days from February 19, 2016 was Sunday March 20, 2016; however, because that day was a non- business day, the due date for the notice of appeal was Monday March 21, 2016. See Ind. Appellate Rule 25.

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appeal. (App. 6, 46). Morinskey then filed this amended notice of appeal with

our Court on April 29, 2016.

Decision [14] Morinskey attempts to appeal the order imposing her sentence in Cause F5-24

and the probation revocation order directing her to serve her one-year term of

incarceration in the Department of Correction in Cause FA-2. In response, the

State argues that Morinskey forfeited her appellate claims by failing to timely

file a notice of appeal. Because we find the State’s argument dispositive, we will

not address Morinskey’s sentencing and probation revocation arguments. [15] We note that Morinskey did not file a reply brief or otherwise respond to the

State’s allegation that we should dismiss her appeal because she failed to timely

file her notice of appeal. “‘In such a circumstance, if we find prima facie error,

we may reverse.’” Amphonephong v. State, 32 N.E.3d 825, 829–30 (Ind. Ct. App.

2015) (quoting Townsend v. State, 843 N.E.2d 972, 974 (Ind. Ct. App. 2006),

trans. denied). “In this context, prima facie is defined as at first sight, on first

appearance, or on the face of it.” Id. (internal quotation marks omitted). [16] Turning to the State’s argument, we note that our Indiana Appellate Rules

provide that a party who wishes to appeal must “initiate[] an appeal by

conventionally filing a Notice of Appeal with the Clerk (as defined in Rule

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2(D))[5] within thirty (30) days after the entry of a Final Judgment is noted in the

Chronological Case Summary.” Ind. Appellate Rule 9(A)(1). Additionally,

Appellate Rule 9(A)(5) provides that “unless the Notice of Appeal is timely

filed, the right to appeal shall be forfeited except as provided by P.C.R.2.”6 [17] Here, the trial court entered its final judgment orders in Cause FA-2 and F5-24

on February 19, 2016. Based on the date of the orders, Morinskey’s notice of

appeal was due on or before March 21, 2016. See App. R. 9(A)(1). Morinskey,

however, filed her notice of appeal with our Court on April 29, 2016. 7

Accordingly, she filed her notice of appeal thirty-nine days late. Pursuant to

Appellate Rule 9(A)(5), her failure to timely file her notice of appeal with our

5 Appellate Rule 2(D) defines “Clerk” as “the Clerk of the Indiana Supreme Court, Court of Appeals[,] and Tax Court.” 6 Post-Conviction Rule 2 provides an avenue by which certain criminal defendants may pursue a direct appeal after the time for filing a notice of appeal has expired. Specifically, Post-Conviction Rule 2(1)(a) provides as follows: An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if; (1) the defendant failed to file a timely notice of appeal; (2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and (3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule. 7 In regard to the trial court’s purported treatment of Morinskey’s March 9, 2016 letter as a notice of appeal and Morinskey’s later filing of an amended notice of appeal with the trial court, we note that filing a notice of appeal with the trial court is no longer the procedure for initiating an appeal. See App. R. 9(A)(1). Indeed, such has not been the case since January 1, 2012. See App. R. 9(A)(1) (2012). While we did have a grace period from January 1, 2012, until January 1, 2014, during which a notice of appeal filed with the trial court clerk would be deemed timely filed, see App. R. 9(A)(5) (2012), that grace period had expired at the time Morinskey was required to file her notice of appeal with our Court.

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Court results in Morinskey’s “right to appeal . . . be[ing] forfeited except as

provided by P.C.R.2.” [18] Our supreme court, however, has explained that an appellate court may restore

a right of appeal that has been forfeited if there are “extraordinarily compelling

reasons to do so.” In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). In

O.R., our supreme court concluded that, in an appeal of a father seeking to

challenge the adoption of his child, there were extraordinarily compelling

reasons that existed to restore the father’s forfeited right to appeal. Id. at 972.

In so finding, the O.R. Court cited to: (1) Appellate Rule 1, which provides that

our Court may permit deviation from the Appellate Rules; (2) the father’s

timely attempt to initiate an appeal before the deadline for filing his notice of

appeal; and (3) the parent-child relationship as a fundamental liberty interest

and one of the most valued relationships of our culture. Id. Although not

specifically enunciated by the O.R. Court, implicit in the Court’s finding of

extraordinarily compelling reasons was the fact that the father would have been

forever precluded from appealing the trial court’s adoption order. [19] Here, however, Morinskey is attempting to file a direct appeal of her sentence

in Cause F5-24 and of her probation revocation sentencing placement in Cause

FA-2. In Cause F5-24, Morinskey is not forever precluded from appealing the

trial court’s sentencing order. Indeed, she would be able to appeal the trial

court’s ruling after seeking permission to file a belated notice of appeal for that

cause pursuant to Post-Conviction Rule 2. She, however, would be unable seek

permission to file a belated notice of appeal of the order in her probation

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revocation cause, especially where she merely seeks to appeal the trial court’s

order that she serve one year in the Department of Correction after she agreed

to admit the violations contained in the State’s motion to commit her to the

Department of Correction. See Dawson v. State, 938 N.E.2d 841, 845 (Ind. Ct.

App 2010), adopted and incorporated by reference by 943 N.E.2d 1281 (Ind. 2011)

(holding that belated appeals from an order revoking probation are not available

under Post-Conviction Rule 2). Nevertheless, we do not find any extraordinary

compelling reasons to restore Morinskey’s forfeited right to this appeal, and we

dismiss the appeal. See, e.g., Blinn v. Dyer, 19 N.E.3d 821, 822 (Ind. Ct. App.

2014) (explaining that “while we may waive the apparent Appellate Rule 9(A)’s

forfeiture requirement, we need not do so”). [20] Dismissed.8

Baker, J., and Mathias, J., concur.

8 Our decision to dismiss this appeal should not be construed to reflect our position on the merits of the issues raised in the parties’ appellate briefs.

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