FOR PUBLICATION
APPELLANT PRO SE:
ATTORNEYS FOR APPELLEE:
VICTOR A. SALAZAR
Pendleton, Indiana
STEVE CARTER
Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
VICTOR A. SALAZAR,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee.
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No. 79A02-0502-PC-130
APPEAL FROM THE TIPPECANOE CIRCUIT COURT
The Honorable Donald L. Daniel, Judge
Cause Nos. 79C01-0206-FC-12 and 79C01-0112-CF-00032
October 10, 2006
OPINION - FOR PUBLICATION
SULLIVAN, Judge
Appellant, Victor Salazar, challenges the trial court’s denial of his petition for
permission to file a belated appeal.
We reverse.
The record reveals that on December 6, 2001, under Cause Number 79C01-0206FC-12 (“Cause No. FC-12”), the State charged Salazar with two counts of robbery as a
Class B felony. Later, on December 12, 2001, the State charged Salazar under Cause
Number 79C01-0112-CF-32 (“Cause No. CF-32”) with two counts of dealing in
marijuana as a Class C felony; two counts of possession of marijuana as a Class D felony;
one count of conspiracy to deal in marijuana as a Class C felony; two counts of dealing in
cocaine as a Class A felony; one count of dealing in a schedule IV controlled substance
as a Class A felony; one count of conspiracy to deal in cocaine as a Class A felony;
possession of cocaine as a Class A felony; possession of cocaine as a Class B felony;
possession of a schedule IV controlled substance as a Class C felony; and maintaining a
common nuisance as a Class D felony. On April 29, 2002, the State added charges of
intimidation as a Class C felony and pointing a firearm as a Class D felony, under Cause
No. FC-12.
On February 4, 2003, Salazar agreed to plead guilty under Cause No. CF-32 to one
count of dealing in cocaine and one count of dealing in a schedule IV controlled
substance, both as Class B felonies.
In exchange, the State agreed to dismiss the
remaining charges under Cause No. CF-32 and all of the charges under Cause No. FC-12.
The trial court held a plea hearing that same day. At the plea hearing, a portion of which
is included in the record before us, the trial court advised Salazar of the various rights he
2
would be waiving by pleading guilty. Relevant to the present case is the trial court’s
explanation of Salazar’s right to appeal:
“You also have the right to appeal. That is[,] if your case were to proceed to
trial and you were convicted, you would have the right to appeal your
conviction to the Indiana Court of Appeals. Do you understand you have
each of these rights but by pleading guilty you are waiving or giving up
your rights?” App. at 33.
Salazar replied that he understood. On February 10, 2003, the trial court accepted the
plea agreement and sentenced Salazar to fifteen years on both convictions to be served
consecutively. Although the trial court’s judgment is dated February 10, 2003, the CCS
entry regarding sentencing is dated February 13, 2003. The abstract of judgment is also
dated February 13, 2003.
On November 20, 2003, Salazar filed a pro se Motion for Guilty Plea and
Sentencing Hearing Transcripts. In this motion, Salazar stated that he was “in the process
of preparing a Petition for Post-Conviction Relief” upon the grounds that the trial court
had used improper aggravating circumstances to enhance his sentence and that his
sentence was “unreasonable” in that the court had not properly considered mitigating
circumstances. App. at 43-44. According to the CCS, the transcripts of the guilty plea
and sentencing hearings were sent to Salazar on January 9, 2004. Thereafter, on June 24,
2004, Salazar filed a motion for a discovery order, which the trial court denied the
following day. 1
1
On July 6, 2004, Salazar asked the trial court clerk for a copy of the discovery order, and a copy
of the CCS entry noting the denial of his motion for discovery was sent to him.
3
On November 9, 2004, our Supreme Court issued its opinion in Collins v. State,
817 N.E.2d 230, 233 (Ind. 2004), wherein it held that “the proper procedure for an
individual who has pled guilty in an open plea to challenge the sentence imposed is to file
a direct appeal or, if the time for filing a direct appeal has run, to file an appeal under
[Indiana Post-Conviction Rule] 2.” In doing so, the Court resolved a conflict among
panels of this court. In Taylor v. State, 780 N.E.2d 430 (Ind. Ct. App. 2002), trans.
denied, the court held as did the Supreme Court in Collins—that an individual who
pleads guilty to an “open plea” must challenge his sentence by direct appeal. However,
in both Collins v. State, 800 N.E.2d 609 (Ind. Ct. App. 2003), trans. granted, opinion
vacated, and Gutermuth v. State, 800 N.E.2d 592 (Ind. Ct. App. 2003), trans. granted,
opinion vacated, other panels of this court rejected the State’s argument that the
defendants had waived their right to challenge their sentences by failing to present their
challenge in a direct appeal, and the court proceeded to address claims of sentencing error
in a post-conviction proceeding. See Collins, 817 N.E.2d at 231.
Less than one month after our Supreme Court decided Collins, on December 1,
2004, Salazar filed a Verified Motion for Leave to Conduct Pre-Action Discovery and a
Motion to Produce Prosecutor’s File. These motions indicated that Salazar was still
preparing to file a petition for post-conviction relief, and the latter motion specifically
referenced Post-Conviction Rule 1(5). On December 5, 2004, the trial court ordered the
State to respond to Salazar’s motions before January 3, 2005. The State filed its response
on January 7, 2005. The trial court entered an order dated January 7, 2005 denying
Salazar’s motions.
4
Salazar’s actions up to this point all appear to have been directed towards filing a
petition for post-conviction relief under Post-Conviction Rule 1. On January 12, 2005,
Salazar seems to have switched strategies when he filed a “Petition to Appoint Local
Counsel to Pursue Proceedings Under Ind. Post-Conviction Rule 2,” in which he sought
appointed counsel to pursue a belated motion to correct error or appeal. App. at 57. The
trial court denied Salazar’s motion on January 14, 2005. Shortly thereafter, on January
27, 2005, Salazar filed a pro se Motion for Permission to File a Belated Appeal. 2 In his
motion, Salazar claimed that his failure to file a timely notice of appeal was not his fault,
specifically stating as follows:
“ Petitioner was never advise[d] of his right to appeal his sentence. Thus,
petitioner did not know of his right to initiate an appeal of his sentence.
Petitioner has never previously been convicted of a felony, and had no prior
experience with the adult legal system and was unaware of Indiana
appellate procedure. Petitioner has limited education, with no prior legal
training in the law, and further, petitioner never completed high school.
During the petitioner’s incarceration, petitioner was housed in G-cell
house from 4-17-03 to 9-21-0_.[ 3 ] G-cell house offenders are not allowed
physical access to the prison law library. [A]s a result, petitioner did not
have physical access to the law library and was unable to research his case.
Petitioner just learned that the proper procedure for an individual who
has plead[ed] guilty in an ‘open plea’ to challenge the sentence imposed is
to file a direct appeal or, if the time for filing a direct appeal has run, to
request permission to file a belated notice of appeal under Post-Conviction
Rule 2. See, Collins v. State, 817 N.E.2d 230, 2004.” App. at 65.
On March 31, 2005, the trial court summarily denied Salazar’s motion. Salazar filed a
Motion to Correct Error or Modify Clerk’s Record on April 4, 2005. The following day,
the trial court ordered the clerk to provide Salazar with any portion of the record not
2
According to the CCS, three days earlier, on January 24, 2005, Salazar filed a notice of appeal.
This court’s docket indicates that this notice of appeal was filed on January 21, 2005.
3
The last part of this sentence is not reproduced in the photocopy included in the appendix.
5
previously provided to him, but otherwise denied his motion to correct error. Salazar
filed a notice of appeal from the trial court’s denial of his motion for permission to file a
belated notice of appeal on April 25, 2005. 4
Before turning to the merits of Salazar’s claim regarding his motion for permission
to file a belated notice of appeal, some procedural housecleaning is in order. Although
not directly mentioned by either party, we observe that Salazar filed two separate notices
of appeal in the present case. The first, filed on January 21, 2005, was an appeal from
either the trial court’s January 1, 2005 denial of Salazar’s motion to conduct discovery
and to produce the prosecutor’s file or from the trial court’s January 14, 2005 denial of
Salazar’s motion requesting the appointment of local counsel to pursue a belated notice
of appeal.
Indeed, following the January 21 notice of appeal, Salazar filed two
appellant’s case summaries: the first indicated that he was appealing the trial court’s
January 1 ruling, and the second indicated he was appealing the trial court’s January 14
ruling. Neither of these rulings appear in any way to be final judgments from which
Salazar had a right to appeal. See Ind. Appellate Rule 2(H) (defining “final judgment”);
Ind. Appellate Rule 5(A) (defining this court’s jurisdiction in appeals from final
judgments). Nor does it appear that Salazar had a right to bring an interlocutory appeal
from these matters. See Ind. Appellate Rule 14(A) (describing interlocutory appeals of
right). Therefore, the only proper way for Salazar to appeal anything at the time of his
January 21 notice of appeal would have been to file a discretionary interlocutory appeal.
4
By order of this court on July 12, 2005, the appeal corresponding to this notice of appeal was
consolidated with the earlier-filed notice of appeal.
6
See Ind. Appellate Rule 14(B) (describing procedures for discretionary interlocutory
appeals). There is no indication before us that this is what Salazar did. Despite the fact
that this court later “consolidated” Salazar’s January 21 and April 25 notices of appeal
under one cause number, the earlier notice of appeal is a nullity and need not be
considered. To be sure, even Salazar in his “consolidated” appellant’s brief makes no
mention of either the trial court’s rulings on his discovery motions or request for local
counsel. The April 25 notice of appeal from the trial court’s March 31 denial of Salazar’s
motion for permission to file a belated notice of appeal, however, is a permissible final
appeal. See Ind. Post-Conviction Rule 2(1) (specifically providing for appeals from the
trial court’s denial of a request to file a belated notice of appeal). We therefore proceed
to consider only Salazar’s April 25 notice of appeal, i.e. we consider only Salazar’s
claims regarding the propriety of the trial court’s denial of his motion seeking permission
to file a belated notice of appeal.
Petitions for permission to file a belated notice of appeal are governed by Indiana
Post-Conviction Rule 2(1), which reads in relevant part:
“Where an eligible defendant[ 5 ] convicted after a trial or plea of guilty fails
to file a timely notice of appeal, a petition for permission to file a belated
notice of appeal for appeal of the conviction may be filed with the trial
court where:
(a) the failure to file a timely notice of appeal was not due to the fault of
the defendant; and
5
Post-Conviction Rule 2 defines an “eligible defendant” as “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.” There appears to be no contention that Salazar is anything other than an eligible
defendant.
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(b) the defendant has been diligent in requesting permission to file a
belated notice of appeal under this rule.
The trial court shall consider the above factors in ruling on the petition.
Any hearing on the granting of a petition for permission to file the belated
notice of appeal shall be conducted according to Section 5, Rule P.C. 1.
If the trial court finds grounds, it shall permit the defendant to file the
belated notice of appeal, which notice of appeal shall be treated for all
purposes as if filed within the prescribed period.”
As the party seeking the belated appeal, Salazar bore the burden of proving his
grounds for relief by a preponderance of the evidence. See Moshenek v. State, 851
N.E.2d 339, 342 (Ind. Ct. App. 2006); Ind. P-C Rule 2; Ind. P-C Rule 1(5). Resolution of
the question of whether a defendant has established by a preponderance of the evidence
that he was without fault and was diligent in pursuing permission to file a belated notice
of appeal is a matter within the trial court’s discretion. Id. Similarly, the determination
of whether the defendant was responsible for the delay lies within the trial court’s
discretion. Id. There are no set standards defining delay or diligence, and each case
should be decided on its own facts. Id.
Salazar argues that the failure to timely file a notice of appeal from his sentence
was not his fault and that he has been diligent in requesting permission to file a belated
notice of appeal. Salazar specifically claims that the trial court “misinformed” him at his
guilty plea hearing that, by pleading guilty, he was giving up his right to appeal. The
State argues that Salazar was solely at fault for failing to timely appeal his sentence and
that Salazar does not properly support his claim that the trial court misinformed him.
The State argues that Salazar’s claim is unsupported because he failed to attach a
copy of his sentencing transcript to his motion for permission to file a belated notice of
8
appeal. The State claims that the record is therefore “void of any evidence” that Salazar
was not given an advisement. State’s Br. at 6. The State further argues that Salazar’s
inclusion of two pages of his guilty plea transcript in his appendix is inappropriate
because the “guilty plea transcript was not before the trial court” and therefore also not
properly before this court. Id. at n.3. We are unable to agree. Due to the very nature of a
Post-Conviction Rule 2 hearing, and unlike a petition for post-conviction relief under
Post-Conviction Rule 1, the entire record of the original trial is automatically before the
trial court in a Post-Conviction Rule 2 proceeding. Henry v. State, 170 Ind.App. 463,
466, 353 N.E.2d 482, 484 n.2 (1976).
We therefore cannot fault Salazar for his
references to the guilty plea hearing transcript in his motion for permission to file a
belated appeal.
Moreover, the few pages of the transcript included in Salazar’s appendix reveal
that the trial court told Salazar at his guilty plea hearing that if he proceeded to trial, he
would have the right to appeal his conviction, but that if he pleaded guilty, he would give
up such right. We first observe that the trial court’s advisement is not incorrect, in that a
defendant who pleads guilty waives the right to challenge his conviction. See Tumulty v.
State, 666 N.E.2d 394, 396 (Ind. 1996).
Although not incorrect, the trial court’s
advisement was incomplete. Those who plead guilty, such as Salazar, do have the right
to challenge the sentence imposed to the extent that the trial court exercised its discretion
in imposing the sentence. Id.
Salazar claims that he was never informed of his right to challenge his sentence,
that portion of the record included in his appendix supports his contention, and the State
9
points to nothing in the record which would suggest otherwise. We recognize that it has
been held that a trial court is not required to inform a defendant that he has the right to
appeal his sentence following a guilty plea. See Garcia v. State, 466 N.E.2d 33, 34 (Ind.
1984). However, in Garcia, the defendant was challenging his plea, and the fact that he
was not informed of his right to challenge his sentence was insufficient to vacate his plea.
Id. The fact that the trial court failed to inform the defendant of his right to appeal his
sentence following a guilty plea is not irrelevant in the context of considering whether a
defendant is at fault for failing to file a timely appeal. As explained by our Supreme
Court in Collins, supra:
“The fact that the trial court at a guilty plea hearing does not advise the
defendant in an open plea situation that the defendant has the right to
appeal the sentence to be imposed does not warrant an exception to the rule
that sentencing claims must be raised on direct appeal. This is because
Indiana Post-Conviction Rule 2 will generally be available to an individual
in this situation.” 817 N.E.2d at 233 (emphasis supplied).
We therefore conclude that Salazar was not at fault for failing to file a timely
notice of appeal. See id.; see also Cruite v. State, 853 N.E.2d 487, 490 (Ind. Ct. App.
2006) (holding that defendant was not at fault in his failure to challenge his sentence in a
timely direct appeal where trial court failed to inform him of his appellate rights);
Baysinger v. State, 835 N.E.2d 223, 225 (Ind. Ct. App. 2005) (concluding that defendant
was not at fault in failing to file timely notice of appeal where trial court’s advisement
regarding right to appeal following guilty plea provided insufficient guidance, and
defendant asserted that counsel never informed him of appellate rights).
10
Furthermore, the record before us establishes that Salazar was also diligent in
requesting permission to file a belated notice of appeal. The first indication that Salazar
was seeking relief under Post-Conviction Rule 2—his January 12, 2005 request for local
counsel—was filed a scant sixty-four days after Collins was decided. Cf. Cruite, 853
N.E.2d at 490-91 (concluding that defendant was diligent in requesting permission to file
belated appeal where first indication that defendant sought to file belated appeal instead
of seeking relief under Post-Conviction Rule 1 was filed on February 14, 2005);
Moshenek, 851 N.E.2d at 343 (concluding that defendant was diligent where he filed
motion requesting permission to file belated appeal on February 3, 2005); Baysinger, 835
N.E.2d at 225 (concluding that defendant was diligent in requesting permission to file
belated appeal where defendant averred that he learned of Collins holding on January 31,
2005 and sought to file belated appeal on March 1, 2005). 6
We reject the State’s suggestion that Collins did not break any new legal ground
and that a review of pre-Collins case law would have informed Salazar of his right to
appeal his sentence. We recognize that Collins came to the same conclusion that this
court had reached in Taylor, supra. However, it cannot be denied that Collins settled a
disagreement among various panels of this court. See Collins, 817 N.E.2d at 231 (“we
resolve a conflict in the Court of Appeals over whether an individual who pleads guilty to
6
We further note that Salazar did not wait years to initiate his quest for relief from his sentence.
On November 20, 2003—just over nine months from the date his sentence was imposed he filed his
request for the transcripts of his guilty plea and sentencing hearings in order to seek post-conviction
relief. Cf. Moshenek, 851 N.E.2d at 343 (defendant’s first request for transcripts filed approximately
three months from sentencing, pro se petition for post-conviction relief was filed approximately five years
later, and request to file belated appeal was filed over sixteen years from sentencing but less than three
months from date of Collins decision). From that point on, Salazar was persistent in seeking relief from
the sentence imposed.
11
an offense in an ‘open plea’ is entitled to challenge the sentence imposed by means of a
petition of post-conviction relief.”).
The court in Moshenek addressed a similar argument by the State and referenced
the opinion of our Supreme Court in Kling v. State, 837 N.E.2d 502 (Ind. 2005):
“‘[p]rior to Collins, there was a split in authority over whether the proper
procedure to challenge a sentence imposed upon an “open plea” of guilt
was by means of a direct appeal or by means of collateral review under PC.R. 1. Collins decided the issue by holding that the proper procedure for
challenging such a sentence is to file a direct appeal or, if the time for filing
a direct appeal has run, to seek permission to file a belated direct appeal
under P-C.R. 2. . . .
Now . . . it is clear that a sentence imposed upon an open plea must
be challenged, if at all, on direct appeal . . . .’” Moshenek, 851 N.E.2d at
344 (quoting Kling, 837 N.E.2d at 506) (emphasis in original).
Thus, prior to Collins, Salazar was challenging his sentence in a manner which, at that
time, had not yet been completely foreclosed. Once Collins was decided, Salazar was
relatively quick in switching from an attack based upon Post-Conviction Rule 1 to an
attack based upon Post-Conviction Rule 2.
We therefore conclude that Salazar was not at fault for failing to timely file a
notice of appeal, and that he was diligent in seeking relief under Post-Conviction Rule 2.
The trial court erred in concluding otherwise. See Cruite, 853 N.E.2d at 490-91.
The judgment of the trial court is reversed and the trial court is ordered to grant the
petition.
KIRSCH, C.J., and DARDEN, J., concur.
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