THOMAS v. STATE (2025)

MEMORANDUM DECISION

[1] Gregory N. Thomas (“Thomas”) attempts to pursue a belated direct appeal of his 2023 convictions for two counts of Level 1 felony child molesting. Our motions panel allowed the belated appeal under Indiana Appellate Rule 1, which allows this court to “permit deviation” from the appellate rules. The State asked us to revisit the motions panel's decision, which we have inherent authority to do. See Pryor v. State, 189 N.E.3d 167, 169 (Ind. Ct. App. 2022). For the reasons stated herein, we revisit that decision and deny the request for a belated appeal.

Facts and Procedural History

[2] Through appointed counsel, Thomas timely filed a Notice of Appeal in September 2023, pursuing a direct appeal of his convictions for two counts of Level 1 felony child molesting. However, Thomas eventually moved to voluntarily dismiss the direct appeal. We granted that motion, dismissing the direct appeal with prejudice. Several months later, through private appellate counsel, Thomas moved for a belated direct appeal on the basis that he only agreed to dismissal due to allegedly inaccurate advice from his prior appellate counsel.

[3] Thomas cited two procedural grounds for allowing a belated direct appeal. First, Thomas asserted he was eligible for a belated direct appeal under Post-Conviction Rule 2(3), which allows an “eligible defendant” convicted after a trial or plea of guilty to “petition the appellate tribunal for permission to pursue a belated appeal” when certain requirements are satisfied. Those requirements are that:

(a) the defendant filed a timely notice of appeal; (b) no appeal was perfected for the defendant or the appeal was dismissed for failing to take a necessary step to pursue the appeal; (c) the failure to perfect the appeal or take the necessary step was not due to the fault of the defendant; and (d) the defendant has been diligent in requesting permission to pursue a belated appeal.

Ind. Post-Conviction Rule 2(3).

[4] Thomas argued the delay was not his fault, alleging he made “no act or omission to cause the delay in filing the brief in this case,” and the delay was attributable to prior appellate counsel's “failure to act and properly advise.” Verified Motion to Pursue a Belated Appeal at p. 2., Odyssey. Thomas alleged that prior appellate counsel “incorrectly advised [him] that he would be facing additional time if he proceeded with his direct appeal.” Id. at p. 1. Additionally, Thomas claimed he was not at fault in connection with the dismissal of his timely direct appeal because he purportedly received ineffective assistance of prior appellate counsel.

[5] Second, as an alternative basis for permitting a belated direct appeal, Thomas relied on In re Adoption of O.R., where our Supreme Court endorsed invoking Appellate Rule 1 to allow a belated appeal when “there are extraordinarily compelling reasons why this forfeited right should be restored.” 16 N.E.3d 965, 971 (Ind. 2014). Thomas claimed the “extraordinary [sic] compelling reason [was] that [he] had no fault in the appeal being dismissed[.]” Verified Motion to Pursue a Belated Appeal at p. 3., Odyssey. Thomas also asserted a remedy was potentially available through Post-Conviction Rule 1 because he “could file a petition for post-conviction relief under [that rule] and allege appellate counsel [was] ineffective[.]” Id. at 3. Thomas invited us to invoke Appellate Rule 1 and allow his belated appeal “in the interests of judicial economy” in that “[a] petition for post-conviction relief, if granted, could result in ․ a new direct appeal[.]” Id.

[6] The State filed a response in opposition. The Marion County Public Defender Agency (“MCPDA”) also opposed the motion, asking that we strike any reference to the performance of Thomas's initial appellate counsel and allow those allegations to be developed at a post-conviction hearing where counsel could testify. Our motions panel ultimately allowed the belated appeal “pursuant to Appellate Rule 1.” Order at p. 1., Odyssey. In doing so, the panel “order[ed] all references to [initial appellate counsel's] performance stricken[.]” Id. Appellate briefing ensued, with the State asking us to revisit the decision allowing a belated direct appeal.

Discussion and Decision

[7] Thomas's request for a belated appeal turns on his contention that he received ineffective assistance of prior appellate counsel which resulted in his decision to dismiss his appeal, and but for the alleged ineffective assistance of his appellate counsel, he would have proceeded with his direct appeal. Thomas argues he is entitled to leave to file the belated appeal because, (1) under Post-Conviction Rule 2, it was not his fault he voluntarily dismissed the timely appeal, and (2) under Appellate Rule 1, the alleged deficient performance of counsel constituted an extraordinarily compelling reason to permit a belated appeal. Because we believe that a proceeding under Post-Conviction Rule 1 is better suited to resolve Thomas's claims, we exercise our authority to revisit the motions panel's decision allowing the belated appeal. See Pryor, 189 N.E.3d at 169.

[8] Post-Conviction proceedings are an available remedy for Thomas to pursue for his contentions regarding his claim of ineffective assistance of appellate counsel, which he acknowledged in his Verified Motion to Pursue a Belated Appeal.¹ Indeed, Post-Conviction Rule 1 authorizes post-conviction courts to provide a remedy for a claim of ineffective assistance of counsel which Thomas alleged in his verified motion to pursue a belated appeal. Furthermore, a post-conviction court is also authorized to allow a bleated appeal pursuant to Post-Conviction Rule 2.

[9] Moreover, Indiana Post-Conviction Rule 1 is the most appropriate forum for Thomas to seek appellate remedy because the MCPDA contests the allegation of ineffective assistance of appellate counsel. See Response to Verified Motion to Pursue a Belated Appeal at p. 2, Odyssey (explaining “this is not Post-conviction, and [prior appellate counsel] has not been given an opportunity to state her position or defend her actions. This is patently unfair”). Post-Conviction Rule 1 provides the appropriate venue for contested claims. Because Thomas's remedy is preserved and his allegation of ineffective assistance can be fully litigated, Indiana Post-Conviction Rule 1 is the appropriate procedure to resolve the matter.

[10] In light of Post-Conviction Rule 1—which “shall be used exclusively in place of” remedies outside of Post-Conviction Rule 2, Ind. Post-Convection Rule 1(1)(b)—we decline to exercise any authority to invoke Appellate Rule 1 as a basis for allowing a belated appeal. Thomas's argument invites our court to accept as true his allegations of ineffective assistance of counsel to constitute an “extraordinary [sic] compelling reason” to resurrect his appeal under Appellate Rule 1. Verified Motion to Pursue a Belated Appeal at p. 3, Odyssey. Thomas's argument necessitates a fact sensitive inquiry into his claim which a post-conviction court is better positioned to address. Moreover, if this court were to find Thomas's ineffective assistance of counsel claim to lack merit, his basis for relief under Appellate Rule 1 would no longer exist. Based upon these considerations, Thomas's claim of ineffective assistance of counsel is better resolved through Post-Conviction Rule 1 proceedings.

[11] We next turn to the reasons Post-Conviction Rule 2(3) fails to support Thomas's request to reinstate his appeal. Regardless of whether Thomas received ineffective assistance of counsel as he claims, Post-Conviction Rule 2 applies only to an “eligible defendant.” An “eligible defendant” is a defendant who, “but for the defendant's failure to do so timely, would have the right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal[.]” P-C.R. 2 (emphasis added). The record establishes that Thomas did not fail to timely file a Notice of Appeal or otherwise fail to timely pursue the appeal. To the contrary, Thomas's direct appeal was timely, and we dismissed that timely direct appeal upon Thomas's voluntary motion. See Appellant's Verified Motion to Dismiss Appeal at p. 2, Odyssey; Order at p. 1, Odyssey. Therefore, Thomas is not eligible for relief under Post-Conviction Rule 2(3).

[12] Having revisited Thomas's request to allow a belated direct criminal appeal under either Post-Conviction Rule 2(3) or Indiana Appellate Rule 1, we ultimately deny that request for the foregoing reasons.² We therefore dismiss.

[13] Dismissed.

FOOTNOTES

1.   Thomas stated in his Verified Motion to Pursue a Belated Appeal that:Thomas could file a petition for post-conviction relief under Post-Conviction Rule 1 and allege appellate counsel ineffective for failure to properly guarantee he had assigned counsel, and deadlines were met. A petition for post-conviction relief, if granted, could result in a remand for a new direct appeal. Therefore, in the interests of judicial economy, this Court should find that the appeal is not forfeited and allow for a direct appeal at this time.Verified Motion to Pursue a Belated Appeal at p. 3, Odyssey.

2.   Taking nothing from the unproven allegations of ineffective assistance of prior appellate counsel, we decline the Marion County Public Defender Agency's request to strike the allegations from Thomas's appellate filing.

Foley, Judge.

Bailey, J. and Bradford, J., concur.