Core v. State, No. 91A02-1611-PC-2604, __ N.E.3d __ (Ind. Ct. App., April 24, 2019).

Pyle, J.

Derek Core (“Core”), pro se, attempts to belatedly appeal from the post-conviction court’s denial of his petition for post-conviction relief.  …

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In October 2013, Core, who was on parole, and two other individuals robbed a bank in White County.  In May 2014, a jury found Core guilty of Class C felony robbery, and Core admitted that he was an habitual offender.  Thereafter, the trial court imposed an eight (8) year sentence for Core’s Class C felony conviction and enhanced that sentence by twelve (12) years for his habitual offender adjudication.  Core then filed a direct appeal, raising evidentiary and sentencing arguments.  Our Court affirmed Core’s conviction and sentence in March 2015.

Subsequently, in October 2015, Core filed a pro se petition for post-conviction relief and later filed an amended pro se petition in November 2015.  Core raised a claim of ineffective assistance of trial counsel …  In April 2016, the post-conviction court held a hearing on Core’s post-conviction petition.  Thereafter, on July 20, 2016, the post-conviction court issued an order denying Core’s petition for post-conviction relief.  Therefore, Core’s notice of appeal was due on or before August 19, 2016, and he was required to file it with the Clerk of our Court.  See App. R. 9(A)(1).  Core failed to do so.

On September 8, 2016, Core filed, with the post-conviction court, a petition seeking permission to file a belated notice of appeal from the order denying post-conviction relief.  In his petition, he sought to invoke the provisions of Post-Conviction Rule 2(1).  The post-conviction court held a hearing and granted Core permission to file a belated notice of appeal from his post-conviction case.

Subsequently, on November 15, 2016, Core filed a notice of appeal with our Court.  …  Thereafter, the State filed a motion to dismiss Core’s appeal, arguing 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 also pointed out that Post-Conviction Rule 2(1) was not applicable to a post-conviction judgment.  Our motions panel denied the State’s motion to dismiss and permitted Core to proceed with a belated appeal from his post-conviction judgment.

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At the time that Core was required to file his notice of appeal with our Court in August 2016, our Indiana Appellate Rules provided that a party who wished to appeal must “initiate an appeal by conventionally filing a Notice of Appeal with the Clerk (as defined in Rule 2(D)) 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) provided that “unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by P.C.R.2.”

Here, the post-conviction court entered its final judgment in Core’s post-conviction proceeding on July 20, 2016.  Thus, Core’s notice of appeal was due to be filed with our Court on or before August 19, 2016.  See App. R. 9(A)(1).  Core, however, filed his notice of appeal with our Court on November 15, 2016.  Accordingly, he filed his notice of appeal eighty-eight days late.  Pursuant to Appellate Rule 9(A)(5), his failure to timely file his notice of appeal with our Court resulted in Core’s right to appeal being “forfeited.”

Core attempted to avoid this forfeiture by petitioning the post-conviction court for permission to file a belated notice of appeal under Post-Conviction Rule 2(1).  The post-conviction court reviewed the factors in Post-Conviction Rule 2(1)(a) and granted Core’s petition.  The post-conviction court erred by doing so.

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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.”  P-C.R. 2 (emphases added).

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.”  Howard v. State, 653 N.E.2d 1389, 1390 (Ind. 1995) … Post-Conviction Rule 2(1) “applies to direct appeals of convictions or sentences” and “does not apply to appeals of collateral or post-judgment rulings.”  Hill v. State, 960 N.E.2d 141, 148 (Ind. 2012), reh’g denied. …

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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.  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.  Accordingly, we dismiss this appeal.

Dismissed.

Vaidik, C.J., and Barnes, Sr.J., concur.

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