MACKEY v. STATE (2025)

MEMORANDUM DECISION

[1] Steven E. Mackey, Jr., appeals the trial court's denial of his petition for permission to file a belated appeal. Because Mackey fails to demonstrate how the trial court's denial of his petition was an abuse of discretion, we affirm.

Facts and Procedural History

[2] On January 11, 2022, the State charged Mackey with Level 6 felony theft,¹ Level 6 felony possession of methamphetamine,² and Level 6 felony possession of cocaine.³ On March 21, 2023, Mackey agreed to plead guilty to Level 6 felony theft in exchange for the State's agreement to dismiss the other two counts and to cap the executed portion of Mackey's sentence at twelve months. The trial court accepted the plea.

[3] On April 25, 2023, the trial court held a sentencing hearing. The trial court sentenced Mackey to thirty months, with twelve months executed in the St. Joseph County Jail and eighteen months suspended to probation. The probation department indicated Mackey was entitled to six days of credit for time served prior to sentencing, and Mackey challenged the validity of that calculation because he believed he was entitled to additional credit time. Therefore, when the trial court entered Mackey's sentencing order, it also ordered the probation department to “provide current credit time calculations for the time periods of January 10, 2022 through January 15, 2022 and December 15, 2022 through January 30, 2023.” (Appellant's Amended App. Vol. 2 at 90.)⁴

[4] On May 1, 2023, the probation department filed a report with the trial court that explained why Mackey was entitled to only six days of credit, from January 10, 2022, until January 15, 2022, against his sentence. First, while Mackey remained in St. Joseph County Jail from January 15, 2022, until January 19, 2022, he posted bond on the theft herein on January 15, 2022, and was held the remaining four days on “a hold for the State of Illinois.” (Id. at 93.) Second, while Mackey was in the St. Joseph County Jail between December 22, 2022, and his sentencing on April 25, 2023, Mackey was receiving credit for those days against cases out of Elkhart County that had to be served consecutive to Mackey's sentence for theft herein because Mackey was on bond for those cases when he committed the theft herein.

[5] On May 5, 2023, Mackey filed a “Motion for Full Time Credit” that argued he was entitled to “(54) actual days” because he was “rearrested on December 15, 2022 and released by this said Court on January 30, 2023[.]” (Id. at 94.) On May 8, 2023, the court denied Mackey's motion because, as indicated in the report from probation, he received credit for those dates in other cases.

[6] On May 25, 2023, Mackey filed a “Belated Motion to Correct Error” in which he again asserted he was entitled to credit against his sentence for the days between December 15, 2022, and January 30, 2023. (Id. at 97) (full capitalization removed). The State filed a response that argued Mackey had gotten all the credit that he was entitled to receive. On June 16, 2023, the trial court denied Mackey's motion.

[7] On November 8, 2023, Mackey filed another “Motion for Full Credit Time.” (Id. at 105) (full capitalization removed). This motion requested “credit for pre-sentence time served in Elkhart after the Elkhart charges were pending and the St. Joseph authorities ‘hold’ was in effect[.]” (Id. at 106.) According to Mackey, he “should be credited for full credit time of 4/12/2022 to 9/12/2022, before the defendant was sentence [sic] to Elkhart charges in [sic] October 6, 2022.” (Id. at 116.) On November 14, 2023, the trial court denied Mackey's motion in an order that explained that Mackey was receiving credit toward his Elkhart County case during the time he was challenging. The trial court also indicated “any subsequent filings of repetitive motions by Defendant will be DENIED without hearing pursuant to Trial Rule 53.4.”⁵ (Id. at 123.)

[8] On December 6, 2023, Mackey filed a Motion to Reconsider that asked the trial court to reconsider his November Motion for Full Credit Time because it requested credit for a time period different than his Motion to Correct Error in May 2023. On January 4, 2024, the court denied Mackey's Motion to Reconsider and reiterated that subsequent repetitive motions would be denied without hearing pursuant to Trial Rule 53.4.

[9] On January 23, 2024, Mackey petitioned under “P.C.R. 2 Sec. 1” for permission to file a belated appeal. (Id. at 136.) The State responded to oppose Mackey's petition because Mackey had not demonstrated the two requirements for relief under Post-Conviction Rule 2 – that “the failure to file a timely notice of appeal was not due to the fault of the defendant and the defendant has been diligent in requesting permission to file a belated notice of appeal.” (Id. at 141.) The trial court held a hearing on Mackey's petition on February 12, 2024. At that hearing, the State again argued Mackey had not demonstrated diligence and a lack of fault for the belated appeal of his April 25, 2023, sentencing. Mackey asserted he was trying to appeal only the trial court's denial of his Motion for Full Time Credit, not the sentence entered on April 25, 2023. The trial court withheld judgment until it received Mackey's written reply, which was filed on February 20, 2024, and argued: “The Defendant's Petition should not be interpreted as a PCR Rule 2 filing[.]” (Id. at 173.) After receiving that filing, the court denied Mackey's motion for a belated appeal.

Discussion and Decision

[10] Mackey appeals from the trial court's denial of his petition to file a belated appeal. The grant or denial of a petition to file a belated appeal is left in “the sound discretion of the trial court.” Moshenek v. State, 868 N.E.2d 419, 422 (Ind. 2007), reh'g denied. The petitioner has the burden of demonstrating by a preponderance of the evidence that he was “without fault in the delay of filing and was diligent in pursuing permission to file a belated motion to appeal.” Id. at 422-23. We give “substantial deference” to the trial court's decision. Id. at 423. As a result of that deference, we affirm the trial court's decision “unless it was based on an error of law or a clearly erroneous factual determination (often described in shorthand as ‘abuse of discretion’).” Id. at 424. We also defer to the trial court's weighing of evidence, assessing of credibility, and drawing of inferences. Id.

[11] Mackey's brief indicates one of his four issues on appeal is: “The trial court abused its discretion when it denied the Verified Petition for Permission to File Belated Appeal[.]” (Br. of Appellant at 2.) However, Mackey develops no argument on that issue in the remainder of his brief.⁶ “Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.” Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005), trans. denied. Because Mackey failed to provide a cogent argument about how the trial court abused its discretion when it denied his petition for belated appeal, that issue is waived for appeal. See id. at 303 (declining to address four issues for which Smith provided no citation to authority).

[12] In his reply brief, Mackey argues at length, with citation to federal authority, that we are obligated to consider his “pleadings” under a “less stringent” standard.⁷ (Appellant's Reply Br. at 9.) This is not, however, the law in Indiana's appellate courts. Instead, in Indiana, “a pro se litigant is held to the same standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Pro se litigants are “bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so.” Kelley v. State, 166 N.E.3d 936, 937 (Ind. Ct. App. 2021) (quoting Basic v. Amouri, 58 N.E.3d 980, 983-84 (Ind. Ct. App. 2016), reh'g denied).

[13] Because Mackey did not attempt to demonstrate, and thus has not demonstrated, that the trial court abused its discretion when it denied his request for a belated appeal, we affirm the trial court's denial of his petition.⁸

Conclusion

[14] Mackey has not demonstrated the trial court abused its discretion when it denied his petition to file a belated appeal, and we accordingly affirm.

[15] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-43-4-2(a)(1)(A).

2.   Ind. Code § 35-48-4-6.1(a).

3.   Ind. Code § 35-48-4-6(a).

4.   The page numberings at the bottom of the pages of Mackey's appendix do not match the .pdf page numberings. For clarity, we have used the .pdf page numberings.

5.   Indiana Trial Rule 53.4(A) explains that “[n]o hearing shall be required upon a repetitive motion or upon motions to reconsider orders or rulings upon a motion.” Moreover, “[s]uch a motion by any party or the court or such action to reconsider by the court shall not delay the trial or any proceedings in the case, or extend the time for any further required or permitted action, motion, or proceedings under these rules.” Id.

6.   He instead provides four pages of argument about how the trial court erred when it failed to give him additional credit for time served prior to sentencing. We may not, however, address that issue unless we first determine the trial court abused its discretion when it denied his motion for belated appeal. See, e.g., Amphonephong v. State, 32 N.E.3d 825, 829 (Ind. Ct. App. 2015) (After trial court granted Amphonephong permission to file a belated notice of appeal and Amphonephong filed his appellate brief challenging the sufficiency of the evidence to support his conviction, the State filed a cross-appeal to challenge the grant of permission to file a belated appeal. We addressed the State's cross-appeal issue first because it was “potentially dispositive” of Amphonephong's appeal.).

7.   In his reply brief, Mackey also presents a new argument – that his January 23, 2024, petition for permission to file a belated notice of appeal was actually a timely filed notice of appeal from the trial court's January 4, 2024, denial of Mackey's Motion to Reconsider. (See Appellant's Reply Br. at 7) (“Mackey avers that his motion for reconsideration was timely, also his notice of appeal.”). We reject this argument both because “[n]o new issues shall be raised in the reply brief[,]” Ind. App. R. 46(C), and because it is factually inaccurate. Mackey's filing on January 23, 2024, was titled “VERIFIED PETITION FOR PERMISSION TO FILE BELATED APPEAL” and cited “P.C.R. 2 Sec. 1.” (Appellant's Amended App. Vol. 2 at 136) (formatting in original).

8.   Moreover, Mackey asserted before the trial court that he was petitioning for a belated appeal of the trial court's denial of his November 8, 2024, Motion for Full Time Credit. PCR 2 is available only for appeal of “a conviction or sentence after a trial or plea of guilty[.]” P-C.R. 2. Accordingly, Mackey was not an “eligible defendant” for whom P-C.R. 2 relief was available. See, e.g., Dawson v. State, 943 N.E.2d 1281, 1281 (Ind. 2011) (P-C.R. 2 relief was not available to defendant who wished to file a belated appeal from the revocation of his probation).

May, Judge.

Weissmann, J., and Scheele, J., concur.