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Cummings v. State

Court of Appeals of Indiana

November 21, 2019

James D. Cummings, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Allen Superior Court The Honorable David M. Zent, Judge Trial Court Cause Nos. 02D04-1708-F6-987 02D04-1709-F6-1041 02D04-1802-F6-152

          ATTORNEY FOR APPELLANT Randall J. Hammond Deputy Public Defender Leonard, Hammond, Thoma, & Terrill Fort Wayne, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Tyler G. Banks Supervising Deputy Attorney General Indianapolis, Indiana

          PYLE, JUDGE.

         Statement of the Case

         [¶1] James Cummings ("Cummings') attempts to belatedly appeal the revocation of his probation. Because the Indiana Supreme Court has held that Post-Conviction Rule 2 does not permit belated consideration of an appeal of a probation revocation, we dismiss the appeal.

         [¶2] We dismiss.

         Issue

         Whether this appeal should be dismissed because Cummings failed to file a timely notice of appeal.[1]

         Facts

         [¶3] In November 2017, Cummings pled guilty to Level 6 felony resisting law enforcement and Level 6 felony theft in two separate causes. The trial court sentenced him to 548 days for each conviction, ordered the two sentences to run consecutively to each other, and suspended them both to probation. In January 2018, Cummings failed to submit to two drug screens and missed an appointment with his probation officer. The State filed a petition to revoke his probation in January 2018.

         [¶4] Before the hearing on the revocation petition, Cummings was charged with another count of Level 6 felony resisting law enforcement. As a result of this charge, the State amended the petition to revoke Cummings' probation. In March 2018, Cummings pled guilty to the Level 6 felony resisting law enforcement charge. The trial court sentenced him to 913 days to run consecutively to the November 2017 sentences and again suspended the sentence to probation.

         [¶5] One of the probation conditions was that Cummings successfully complete a residential drug treatment program. Cummings entered such a program in mid-March 2018. However, Cummings did not complete the program because he left the treatment program a week later. The State filed another petition to revoke Cummings' probation in all three cases based on his failure to complete the treatment program. Thereafter, the trial court ordered Cummings to be evaluated by a community corrections program for potential placement on home detention. Cummings, however, refused to participate in the evaluation. He told the trial court that he "no longer need[ed] the court to help [him] with [his] rehabilitation." (App. Vol. 2 at 87). Cummings admitted the violations in the revocation petition and was returned to probation in May 2018.

         [¶6] The day after he admitted the allegations, Cummings entered another residential treatment program. Two days later, he left the the program without successfully completing it, and the State filed another motion to revoke his probation. On November 5, 2018, following an evidentiary hearing, the trial court revoked Cummings' probation and ...


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