Timothy Strowmatt v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 15 2019, 8:10 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jon J. Olinger Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Timothy Strowmatt, July 15, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-519 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jerome Frese, Appellee-Plaintiff Judge Trial Court Cause No. 71D02-0404-FC-119

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-519 | July 15, 2019 Page 1 of 4 [1] Timothy Strowmatt appeals the trial court’s denial of his petition for permission

to file a belated notice of appeal, arguing that the trial court erred by not

following Indiana Post-Conviction Rule 2(1)(a). Finding no error, we affirm. [2] On December 13, 2004, the trial court found Strowmatt guilty of two counts of

attempted criminal confinement and determined that he was an habitual

offender. On January 5, 2005, the trial court sentenced Strowmatt to twenty-

eight years in the Department of Correction. Thereafter, Strowmatt timely

appealed his sentence, which we affirmed on September 9, 2005. See Strowmatt

v. State, Cause No. 71A03-0501-CR-22 (Ind. Ct. App. Sept. 9, 2005). Our

Supreme Court denied transfer. [3] Then, on February 8, 2006, Strowmatt filed a petition for post-conviction relief,

arguing that he received the ineffective assistance of appellate counsel. The

post-conviction court denied his petition on September 11, 2009. Strowmatt

then appealed the post-conviction court’s ruling, which we likewise affirmed.

See Strowmatt v. State, Cause No. 71A05-0910-PC-587 (Ind. Ct. App. June 18,

2010). Once again, our Supreme Court denied transfer. [4] Next, Strowmatt filed a federal petition for writ of habeas corpus, which the

district court denied. See Strowmatt v. Superintendent, Cause No. 3:11-cv-003

(N.D. Ind. Sept. 26, 2011). On February 7, 2012, Strowmatt filed a petition for

writ of habeas corpus in the Henry Circuit Court, which was ultimately

transferred to the St. Joseph Superior Court. The trial court there denied his

petition, ruling that it was simply an additional petition for post-conviction

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relief. This Court affirmed that decision. See Strowmatt v. State, Cause No.

71A03-1402-PC-70 (Ind. Ct. App. July 21, 2014). Thereafter, Strowmatt filed

numerous other motions to correct error and to reconsider sentencing along

with petitions for transfer and removal, all of which were denied. [5] Finally, on February 5, 2018, Strowmatt filed a verified petition for permission

to file a belated notice of appeal to challenge his original sentence. In that

petition, Strowmatt admitted that he had filed a timely notice of appeal after his

January 5, 2005, sentencing hearing, but argued that his appellate counsel had

failed to raise sentencing errors during his direct appeal. The trial court denied

his petition, and Strowmatt now appeals. [6] “[T]he decision of whether to grant or deny a petition for permission to file a

belated notice of appeal is a matter within the discretion of the trial court.”

George v. State, 862 N.E.2d 260, 264 (Ind. Ct. App. 2006). However, where the

trial did not conduct a hearing on the motion and where the allegations

contained in the motion itself provide the only basis in support of a motion, we

review the decision de novo. Id. [7] Indiana Post-Conviction Rule 2(1)(a) states, in pertinent part, the following:

(a) Required Showings. 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;

Court of Appeals of Indiana | Memorandum Decision 18A-CR-519 | July 15, 2019 Page 3 of 4

(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.

(Emphasis added). [8] Thus, in order to receive permission to file a belated notice of appeal, the

defendant must show, at a minimum, that he failed to file a timely notice of

appeal. In his verified petition, Strowmatt admitted that he had filed a timely

notice of appeal after his January 5, 2005, sentencing hearing. Indeed, this

Court considered and ruled on Strowmatt’s appeal on the merits. Therefore,

Strowmatt has not met the threshold showing to prove that he was entitled to

file a belated notice of appeal. And, given the long procedural history of

Strowmatt’s case, this petition seems to be nothing more than an attempt by

Strowmatt to have another bite at the litigation apple. In sum, the trial court did

not err. [9] The judgment of the trial court is affirmed.

Najam, J., and Robb, J., concur.

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