Moshenek v. State

Summary

The Indiana Supreme Court holds that a trial court's ruling on a petition for permission to file a belated notice of appeal or motion to correct error under Post-Conviction Rule 2 should be affirmed unless based on an error of law or clearly erroneous factual determination. The court explains that a defendant's lack of advisement regarding the right to appeal an open-plea sentence may support lack of fault, but the defendant must also establish diligence. Applying that standard, the court affirms denial of David Moshenek's petition because his lengthy delay and failure to raise a sentencing challenge in his post-conviction petition demonstrated insufficient diligence.

Holdings

1. A trial court's ruling on a petition for permission to file a belated notice of appeal or belated motion to correct error under Post-Conviction Rule 2 must be affirmed unless it rests on an error of law or a clearly erroneous factual determination.
2. A trial court's failure to advise a defendant of the right to appeal the sentence imposed after an open guilty plea may establish that the defendant was without fault in failing to file a timely appeal, but it is not alone sufficient to satisfy Post-Conviction Rule 2; the defendant must also make an additional showing of diligence.
3. Moshenek failed to establish the diligence required by Post-Conviction Rule 2, and the trial court did not abuse its discretion in denying permission to file a belated motion to correct error.

Questions Presented

1. What standard of review governs a trial court's ruling on a petition for permission to file a belated notice of appeal or belated motion to correct error under Indiana Post-Conviction Rule 2?
2. Whether Moshenek established that his failure to timely challenge his sentence was not his fault and that he had been diligent in seeking permission to file a belated motion to correct error.
3. Whether the trial court's failure to advise Moshenek, after an open guilty plea, of his right to appeal his sentence established the lack of fault and diligence required by Post-Conviction Rule 2.

Disposition

affirmed