Appeal from the Marion Superior Court, No. 49G02-1008-PC-060299. The Honorable Michael Scott Jensen, Judge Pro Tempore.
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-1211-PC-900.
Anthony Hollowell, APPELLANT, Pro se, Greencastle, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana.
Rucker, Justice. Rush, C.J., and Dickson, David and Massa, JJ., concur.
From time to time a case is presented to us that neither implicates this Court's law-giving function, nor involves compelling issues of great public interest. This is such a case. But we elect to address the merits under the general heading of " doing substantial justice." Here, despite a pro se petitioner's best efforts, his attempt to appeal the denial of his petition for post-conviction relief went awry and the Court of Appeals dismissed the appeal. We grant transfer and affirm the judgment of the post-conviction court.
Anthony Hollowell was convicted of conspiracy to deal in cocaine as a class B felony and the trial court sentenced him to an executed term of sixteen years. Represented by counsel Hollowell appealed his conviction and sentence, which the Court of Appeals affirmed in a memorandum decision. See Hollowell v. State, No.
49A04-1012-CR-736 (Ind.Ct.App. Aug. 19, 2011), trans. denied. Thereafter Hollowell filed a pro se petition for post-conviction relief. After an evidentiary hearing the post-conviction court denied relief on October 18, 2012.
Still acting pro se, on November 2, 2012 Hollowell filed his Notice of Appeal with the appellate court clerk. And his certificate of service declared that Hollowell mailed the notice to the trial court clerk, the court reporter, the trial court, and the attorney general. See Ind. Appellate Rule 9(F)(10) & 24(A)(1) (requiring appellants to file the Notice of Appeal with the appellate court clerk, and serve copies of the Notice on the trial court clerk, the court reporter, and the parties). The trial court clerk received a copy of the Notice, but for reasons not apparent from the record before us, neither the court reporter nor the trial court received a copy.
Further, Hollowell had attached to the Notice of Appeal a motion directed to the trial court requesting permission to proceed in forma pauperis, which, if granted, would have afforded Hollowell a copy of the post-conviction transcript at public expense. The motion should also have been
filed with the trial court. See App. R. 40(A)(2). Although the appellate docket revealed that a motion to proceed in forma pauperis was pending in the trial court, it does not appear from the record that the trial court clerk ever received or filed such a motion. In addition, the trial court clerk did not immediately notify the court reporter that a transcript had been requested. See App. R. 10(A).
On January 28, 2013 (the day the transcript was due), the court reporter and the trial court judge filed with the Court of Appeals a document titled " Court Reporter's Emergency Verified Motion for Extension of Time to File Transcript." The motion declared that Hollowell and the trial court clerk had failed to serve the court reporter and the trial court with a copy of the Notice of Appeal. According to the emergency motion, the court reporter first learned on December 20 that a transcript had been requested, but the motion does not reveal how the request for a transcript came to the court reporter's attention or why the court reporter's motion was not filed until January 28. In any event the motion also represented that " satisfactory arrangements have not been made for payment of the transcript with the court reporter." Id. at 3. We presume this representation reflected that the ...