Opinion
No. 71A04-1101-CR-155
11-30-2011
LADELL ALEXANDER, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
APPELLANT PRO SE : LADELL ALEXANDER New Castle, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
APPELLANT PRO SE:
LADELL ALEXANDER
New Castle, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable John M. Marnocha, Judge
Cause No. 71D02-0102-CF-77
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN , Judge
Ladell Alexander, pro se, appeals the trial court's denial of his motion for reduction of sentence. We find one issue dispositive, which is whether Alexander's notice of appeal is untimely. We dismiss.
As noted herein, Alexander's Second Motion of Notice of Appeal does not designate the order or judgment he desires to appeal.
The relevant facts follow. On May 9, 2001, Alexander pled guilty to child molesting and criminal confinement as class C felonies. On June 7, 2001, the court sentenced Alexander to eight years for each of his class C felony convictions and ordered the sentences to be served consecutive to each other. From 2001 to 2010, Alexander filed, among other documents, nine motions requesting the trial court to order that his sentences be served concurrently, two motions to correct erroneous sentence, and four requests for sentence modification, all of which the trial court denied. On January 14, 2011, Alexander filed a motion for reduction of sentence, which the court denied the same day.
On April 15, 2011, Alexander filed a notice of appeal. On July 26, 2011, this court issued an order for Alexander to show cause why this appeal should not be dismissed because his notice of appeal appears to be untimely. On July 28, 2011, this court issued an order for Alexander to show cause why this appeal should not be dismissed because it is an unauthorized successive petition for post-conviction relief. Alexander submitted responses in August 2011, and on September 16, 2011, this court discharged its July 26 and July 28, 2011 orders and ordered the State to file its appellee's brief.
An entry in the court's chronological case summary ("CCS") dated February 24, 2011, states: "Received letter from Def. [] Alexander requesting copy of CCS and his notice of appeal that he filed on 1-28-11. Copy of CCS was to Def. on this date. Along with a copy of his notice of appeal." Appellant's Appendix at 6. An entry in the CCS on April 15, 2011 indicates that Alexander filed a "Second Motion of Notice of Appeal." Id. There is no entry for 1-28-11 in the CCS showing that a notice of appeal was filed.
This court's docket shows an entry on March 31, 2011 stating that Alexander's case summary did not comply with the appellate rules and "Missing FileStamped Notice of Appeal." See Docket, Entry March 31, 2011. The docket shows that the notice of appeal was filed on April 15, 2011.
In his response, Alexander asserted that he filed a notice of appeal with the trial court on January 28, 2011, that the trial court clerk was uncooperative with him, and that "[a]though it may appear that [his] Notice of Appeal is untimely, it is not." See File, Response to Order to Show Cause file-stamped August 15, 2011. Alexander's Second Motion of Notice of Appeal, attached to his response, states that he filed a notice of appeal on January 28, 2011, and that the clerk failed to honor his request to send him that notice of appeal, but does not designate the appealed order or judgment.
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We address the issue of whether Alexander's appeal was untimely. The State argues in its appellee's brief that Alexander's notice of appeal was untimely under Indiana Appellate Rule 9(A). The State argues that the trial court denied Alexander's motion for reduction of sentence on January 14, 2011, that his notice of appeal was therefore due on February 14, 2011, and that his Second Motion of Notice of Appeal was not filed until April 15, 2011 and was "over 60 days late." Appellee's Brief at 6.
Indiana Appellate Rule 9(A)(1) provides that "[a] party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary." Failure to conform to the applicable time limits results in forfeiture of an appeal. See Ind. Appellate Rule 9(A)(5); Sewell v. State, 939 N.E.2d 686, 686 (Ind. Ct. App. 2010); State v. Hunter, 904 N.E.2d 371, 373 (Ind. Ct. App. 2009). Alexander filed his "Second Motion of Notice of Appeal" on April 15, 2011, which was not within thirty days after the entry of the trial court's January 14, 2011 denial of his motion for reduction of sentence. In his response to this court's order to show cause why this appeal should not be dismissed, Alexander failed to provide proof or point to support for his assertion that he had timely filed a notice of appeal which complied with the appellate rules.
Based upon the record, Alexander has not shown that he filed a notice of appeal with the trial court clerk within thirty days of the court's denial of his motion for reduction of sentence. Accordingly, Alexander's notice of appeal is untimely, and we must dismiss. See Cooper v. State, 917 N.E.2d 667, 672 (Ind. 2009) ("Where the notice of appeal is untimely filed, 'the right to appeal shall be forfeited except as provided by [Post-Conviction Rule] 2.' App. R. 9(A)(5) (emphasis added)."); Tarrance v. State, 947 N.E.2d 494, 496 (Ind. Ct. App. 2011) (holding that the defendant's notice of appeal was not filed within thirty days after the entry of the final judgment being challenged and that the notice of appeal was thus untimely, and dismissing the appeal); Sewell, 939 N.E.2d at 687 (holding that the defendant's notice of appeal was untimely and dismissing the appeal); see also Ind. Appellate Rule 9(A)(5) (providing that unless a notice of appeal is timely filed, the right to appeal shall be forfeited).
For the foregoing reasons, we dismiss this appeal.
Dismissed. MAY, J., and CRONE, J., concur.