Damaris A. Smith v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 12 2017, 9:54 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Theodore J. Minch, Esq. Curtis T. Hill, Jr. Sovich Minch, LLP Attorney General of Indiana Indianapolis, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Damaris Anthony Smith, April 12, 2017 Appellant-Defendant, Court of Appeals Case No. 73A01-1605-CR-1112 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable Chris D. Monroe, Appellee-Plaintiff Senior Judge Trial Court Cause No. 73D01-1406-FB-41

May, Judge. Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017 Page 1 of 10 [1] Damaris Anthony Smith appeals the court’s denial of his petition to file a

belated notice of appeal under Indiana Post-Conviction Rule 2(1). As the trial

court did not abuse its broad discretion, we affirm.

Facts and Procedural History [2] On May 26, 2015, a jury found Smith guilty of Class B felony burglary 1 and

Class A misdemeanor driving while suspended. 2 On June 12, 2015, the trial

court ordered Smith to serve concurrent terms of fourteen years and one

year. At the sentencing hearing held that day, the trial court advised Smith of

his right to appeal:

THE COURT: . . . . Now, Mr. Smith, you heard the sentence of the Court in this case. You are entitled to take an appeal with regard to the conviction itself and/or the sentence that has been imposed. You can do that by one of two ways. You can either file what’s called a direct appeal or you can file what’s called a motion to correct error. There are some technical reasons why you might want to do one as opposed to the other, and I won’t get into those because I’m not sure I completely understand all of them. But if you wish to appeal the case you must file something, either the direct appeal or the motion to correct errors within 30 days from today’s date. If you fail to do that then your right to take an appeal can be waived, forfeited or given up. If you file a motion to correct errors and that motion is denied, then following that you must file a motion . . . notice of appeal within 30 days from the denial of the motion to correct errors. If the

1 Ind. Code § 35-43-2-1(1)(B)(i) (1999). 2 Ind. Code § 9-24-19-2 (2012).

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motion to correct errors were to be granted then it would depend upon what the allegations under that motion were as to what the remedy might be. You have the right to be represented by an attorney with regard to any appeal of any part of what has transpired in your case. If you cannot afford an attorney, one can be appointed to represent you at no expense to you for purposes of taking an appeal. Do you understand these rights?

MR. SMITH: Yes, I understand.

THE COURT: Do you wish to take an appeal from this matter?

MR. SMITH: I don’t know. I’m gonna think about it.

THE COURT: I’m sorry. Think about it?

MR. SMITH: I said I’m gonna think about it.

THE COURT: Okay. Well you certainly are entitled to think about it, and you’re not obligated one way or the other with regard to any choice you may make today, but I just want to emphasize, you have 30 days. So if you say you’re gonna think about it, that’s fine. But if you. . . I’m not gonna call you up in a week or two or three weeks and say hey, have you made up your mind.

It’s up to you to take the affirmative step to advise the Court what you plan to do. Okay.

MR. SMITH: Understood.

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THE COURT: . . . . But I would encourage you, get something done right away because if you decide on day 29 you want to do something, I think, you know, we started this trial on the 20 . . . Well, whatever it was. On Tuesday, the day after Memorial day. If you call an attorney and say, hey, I’m ready to file the appeal and the attorney is on vacation or in trial or something else, you might give up your right to an appeal by not filing something on a timely basis. Okay. Alright.

(Tr. at 29-33.) [3] At the end of the sentencing hearing, Smith requested the return of two cell

phones that were taken from him for evidence:

I’ve talked to the Prosecuting Attorney about this. There were some, there were some phones taken from the Defendant. Some items of personal property were taken as a result of this case. Now that the co-defendant and his case are concluded, I can’t see any evidentiary reason for keeping them. They should be released back (inaudible).

(Id. at 34.) The prosecutor agreed to return Smith’s two phones. The court

explained its “policy has been to not necessarily release any evidence until the

30 days has passed with regard to an appeal. If there is . . . [a]n appeal taken,

then that evidence might be necessary for a re-trial.” (Id. at 35-36.) Defense

counsel agreed that was “fine.” (Id. at 36.) [4] Three days after sentencing, on June 15, 2015, Smith’s girlfriend, Alicia

Wright, called the police officer who had investigated Smith’s crimes, Detective

Darren Chandler of the Shelby County Sheriff’s Department, and asked to pick

up all of Smith’s property including his two cell phones. Detective Chandler Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017 Page 4 of 10

conferred with the prosecutor, who informed him the cell phones could not be

released “until after all appeals were completed.” (Id. at 100.) Detective

Chandler called Wright back to explain this to her and then he “spoke with

Smith in an interview room in the Shelby County Jail and explained the same

to him” in a conversation that was recorded. (Id. at 100-01.) [5] On August 10, 2015, Wright left a message for Detective Chandler saying that

she wanted the cell phones. On August 27, 2015, Wright again called Detective

Chandler and this time she read him the last line of the sentencing order, which

states: “Defendant requests property be released. Court approves request

however, property is not to be released for 30 days in case appeal is filed.”

(Appellant’s App. Vol. 2 at 34.) Wright acknowledged that no appeal had been

filed and asked for the phones. Detective Chandler informed Wright that he

could not release Smith’s property to her without documentation that Smith

wanted his property released to her. On September 1, 2015, Smith sent a letter

to Detective Chandler giving permission to release his cell phones to Wright.

On October 1, 2015, Detective Chandler released the cell phones to Wright. [6] On December 14, 2015, Smith requested permission to file a belated notice of

appeal. The court heard testimony from Smith and Detective Chandler, and

then it took the case under advisement. After reviewing the court’s file and the

sentencing hearing, the court summarily denied Smith’s request.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017 Page 5 of 10 [7] Defendants who are eligible to use Indiana Post-Conviction Rule 2 are those

“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 .

. . .” Section 1 of Rule 2 explains the process for filing a belated notice of

appeal:

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.

P-C. R. 2(1)(a). If the court finds the defendant met those requirements, “it

shall permit the defendant to file the belated notice of appeal. Otherwise, it

shall deny permission.” P-C. R. 2(1)(c). [8] To obtain relief, a defendant must prove by a preponderance of the evidence he

was not at fault for the failure to timely file and diligently requested permission

to file. Strong v. State, 29 N.E.3d 760, 764 (Ind. Ct. App. 2015). “There are no

set standards of fault or diligence, and each case turns on its own facts.”

Moshenek v. State, 868 N.E.2d 419, 423 (Ind. 2007), reh’g denied. Some of the

many factors the trial court may consider include the defendant’s “age,

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education, familiarity with the legal system,” knowledge of right to appeal, and

responsibility for the delay. Id. [9] Because of the fact-sensitive nature of the determinations about diligence and

fault, “we give substantial deference to the trial court’s ruling.” Id. Thus, we

review the trial court’s decision for an abuse of discretion. Id. at 422 (“decision

. . . is within the sound discretion of the trial court”). Smith has not

demonstrated the trial court abused its discretion in denying his petition. [10] Smith’s statements to the trial court have been inconsistent regarding whether

he intended to file a timely appeal and whether he had reason to think that

someone in his family had hired counsel for him to initiate a timely appeal. For

instance, at the hearing on his motion to file a belated notice of appeal, Smith

confirmed that, at his sentencing hearing on June 6, 2015, he had “advise[d] the

[trial] court that [he was] going to hire counsel.” (Tr. at 44.) But the sentencing

hearing transcript shows that he told the trial court only that he was “gonna

think about” whether he wanted to take an appeal. (Id. at 30.) Smith did not

tell the trial court that he planned to hire an attorney for an appeal. [11] Then, at the hearing on his motion to file belated notice of appeal, Smith stated

that “it was my intent” to hire counsel, (id. at 45), but “[i]t’s hard to hire

counsel or go talk to anybody when you are behind bars.” (Id.) Yet Smith also

testified at the hearing that he had called his mother “a day or two after [the

May 26, 2015,] trial” from the Shelby County Jail and asked her to hire a

lawyer for him, (id. at 63), so he thought his family had hired a lawyer and that

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his appeal was underway. That statement was inconsistent with his statement

at his June 6, 2015, sentencing hearing that he was “gonna think about“

whether he wanted to take an appeal. (Id. at 30.) In short, Smith gave

inconsistent statements to the trial court regarding whether he had intended to

file an appeal and thought a timely appeal had been filed on his behalf, and the

court was entitled to assess his credibility in ruling on his motion to file a

belated notice of appeal. [12] In addition, the trial court judge, the sentencing order, and Detective Chandler

informed Smith and Wright on multiple occasions that the State would not turn

over Smith’s two cell phones that were being held as evidence until his appeal

concluded or his opportunity to file an appeal had lapsed. When Wright

contacted Detective Chandler in August 2015 about picking up the phones, she

acknowledged that no appeal was filed, which suggests Smith knew at that time

as well. If he did not know in August 2015 that no appeal had been filed, he

certainly should have understood by the beginning of September 2015 when he

sent a letter to Detective Chandler authorizing his girlfriend to take possession

of his cell phones. [13] Moreover, the record before us does not suggest Smith was young, uneducated,

or unfamiliar with the legal system. Smith was 28 years old when the court

imposed this sentence. Smith had graduated from high school and attended

one semester at Ivy Tech. (Appellant’s App. Vol. 3 at 37.) And, while Smith

may have never before filed an appeal, the probation department summarized

his history with legal system as including

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one felony and one misdemeanor conviction; he had nine cases that were dismissed. He has been committed to DOC on one occasion. There is an active warrant out of Marion County for failure to appear on a pending case. Furthermore, while out on bond in Shelby County, the defendant committed a new felony drug offense in Marion County and that case is currently pending. His juvenile history consists of two status offenses, but no action [was] taken in either case.

(Id. at 42.) [14] The record suggests Smith’s only concern following sentencing was obtaining

possession of his cell phones. As he could not receive those phones until the

conclusion of any appeal he might take, the logical inference is that Smith

intentionally failed to file an appeal so that he could get his phones from

evidence. Thus, we cannot hold the court abused its discretion if it found Smith

was at fault for his failure to file a timely appeal. Nor could we hold the trial

court erred if it found Smith was not diligent in pursuing his right to file a

belated appeal, when the evidence demonstrates Smith knew in August 2015

that no appeal had been filed but he did not request permission to file a belated

notice of appeal until December 2015. In light of the evidence suggesting Smith

was both at fault and not diligent, we hold the court did not err in denying his

petition. See P-C. R. 2(1)(c) (if defendant does not prove both elements of the

test, the court “shall deny permission” to file a belated notice of appeal).

Conclusion

Court of Appeals of Indiana | Memorandum Decision 73A01-1605-CR-1112 | April 12, 2017 Page 9 of 10 [15] As the record supports the trial court’s decision to deny Smith’s petition for

permission to file a belated notice of appeal, we affirm. [16] Affirmed.

Najam, J., and Bailey, J., concur.

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