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Core v. State

Court of Appeals of Indiana

April 24, 2019

Derek Core, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the White Superior Court The Honorable Robert B. Mrzlack, Judge Trial Court No. 91D01-1510-PC-3

          Attorney for Appellant Derek Core Bunker Hill, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

          PYLE, JUDGE.

         [¶1] Derek Core ("Core"), pro se, attempts to belatedly appeal from the post- conviction court's denial of his petition for post-conviction relief. Because we conclude that Core forfeited his right to appeal by failing to timely file his notice of appeal following the denial of his petition for post-conviction relief and 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, we dismiss this appeal.

         [¶2] We dismiss.

Issue
Whether this appeal should be dismissed where Core failed to file a timely notice of appeal and, contrary to Indiana Supreme Court precedent, filed a belated notice of appeal from his post-conviction judgment under Post-Conviction Rule 2(1).
Facts

         [¶3] Because of our disposition of this appeal, we will focus on the procedural facts and will not delve into detailed substantive facts surrounding Core's offenses.[1]

         [¶4] 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.

         [¶5] 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, arguing that counsel rendered ineffective assistance during his motion to suppress hearing. 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. [2]

         [¶6] 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.

         [¶7] Subsequently, on November 15, 2016, Core filed a notice of appeal with our Court. After Core failed to timely file his Appellant's Brief, he filed a motion to file a belated brief, and our motions panel granted him permission to file a belated brief.[3] 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 ...


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