Charles J. Hardin, Appellant/Cross-Appellee-Defendant, v. State of Indiana, Appellee/Cross-Appellant-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] In 2024, the trial court granted Charles Hardin's motion to file a belated notice of appeal under Indiana's post-conviction rules, permitting Hardin to pursue a direct appeal of his 2005 convictions and sentence. On appeal, Hardin argues that the trial court erred when it denied his motion to suppress and that his trial counsel was ineffective during sentencing. The State cross-appeals, arguing the trial court erred when it granted Hardin's motion to file a belated notice of appeal. We agree with the State and dismiss this appeal.

Facts and Procedural History

[2] In 2005, a jury found Hardin guilty of three felony counts, and Hardin admitted he was a habitual offender. The trial court imposed an aggregate seventy-year sentence and advised Hardin of his right to appeal.

[3] In July or August of 2021, Hardin learned of Indiana's post-conviction rules. In April 2022, he filed a petition for post-conviction relief under Post-Conviction Rule 1 (PCR 1), which was summarily dismissed by the trial court at the State's request. The trial court denied Hardin's subsequent motion to correct error, and Hardin then initiated an appeal to this Court. We agreed with Hardin on the dismissal issue and reversed and remanded “for further proceedings and for the issuance of specific findings of fact and conclusions of law consistent with P-C.R. 1(6) on Hardin's PCR claims.” Hardin v. State, No. 22A-PC-1913, at *3 (Ind. Ct. App. May 10, 2023) (mem.).

[4] Twelve days later, Hardin moved to file a belated notice of appeal under Post-Conviction Rule 2 (PCR 2). Meanwhile, the trial court granted Hardin's request to hold his PCR 1 petition in abeyance until this PCR 2 motion and direct appeal are resolved. Following a July 2024 hearing, the trial court granted Hardin's PCR 2 motion and permitted him to file a belated notice of appeal. This direct appeal ensued.

Discussion and Decision

[5] We need only consider the State's cross-appeal, which is dispositive. The State argues the trial court erred when it granted Hardin permission to file a belated notice of appeal. For nearly two decades, we have permitted this practice. See Beatty v. State, 854 N.E.2d 406, 410 (Ind. Ct. App. 2006) (concluding “the State is authorized to appeal from an order granting a defendant's petition to file a belated notice of appeal”).

[6] “The decision whether to grant permission to file a belated notice of appeal is left to ‘the sound discretion of the trial court,’ and therefore faces abuse of discretion review.” Leshore v. State, 203 N.E.3d 474, 477 (Ind. 2023) (quoting Moshenek v. State, 868 N.E.2d 419, 422 (Ind. 2007)). “An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Waldon v. State, 259 N.E.3d 318, 323 (Ind. Ct. App. 2025).

[7] Indiana Post-Conviction Relief Rule 2(1)(a) sets forth the required showings for filing a belated notice of appeal:

An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if;

(1) the defendant failed to file a timely notice of appeal;

(2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and

(3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.

[8] For purposes of this rule, an “eligible defendant” is one who, but for his 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.” Ind. Post-Conviction Rule 2. Hardin is an eligible defendant because but for his failure to timely file a notice of appeal, he would have the right to challenge on direct appeal his convictions and sentence.

[9] There are three required showings: timeliness, faultlessness, and diligence. Because it is dispositive, we consider only the diligence requirement and conclude that Hardin was not diligent in requesting permission to file a belated notice of appeal. Both Hardin and the trial court rely on our Supreme Court's ruling in Leshore to determine diligence.

[10] In 1999, Leshore pleaded guilty to five felonies pursuant to a plea agreement under which the trial court exercised sentencing discretion. Leshore, 203 N.E.3d at 475-76. The trial court advised Leshore that by pleading guilty he was waiving his right to appeal his conviction, but did not advise him that he could appeal his sentence. Id. at 476. In December 2021, Leshore became aware of P-C.R. 2 and, nineteen days later, he filed his motion to file a belated notice of appeal. Id. The Supreme Court reasoned that “[d]iligence under these facts is best measured from the time when Leshore learned of his rights to the filing of his permission to file a belated notice of appeal[,]” and held that “Leshore was prompt enough.” Id. at 479-80.

[11] But Hardin's case is distinguishable. Hardin was aware of his right to appeal his convictions and sentence at the time of his October 2005 sentencing hearing, when the trial court advised him of such. Likewise, he was aware of the post-conviction rules from July or August of 2021. Yet, he initiated his PCR 1 petition in April 2022 and then later decided to file his PCR 2 motion in May 2023. While we note that Hardin proceeded pro se on both occasions, “[i]t is well settled that pro se litigants are held to the same legal standards as licensed attorneys.” Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016). Thus, the consequences of Hardin's procedural decision to proceed first with a PCR 1 petition rather than file a belated appeal under PCR 2 fall on him.

[12] The trial court reasoned, in effect, that since “Hardin waited only [twelve] days from the Court of Appeals’ memorandum decision on his PCR [1] before filing his [PCR 2] petition in this cause ․ Hardin has been diligent in pursuing his rights.” Appellant's Amend. App. Vol. II, p. 220. We cannot agree because this is not the relevant time period to consider when deciding whether Hardin was diligent. Over seventeen years elapsed between the time Hardin learned of his right to appeal in October 2005 and when he moved for permission to file a belated appeal in May 2023. Moreover, nearly two years elapsed between the time Hardin learned of the post-conviction rules in July or August of 2021 and when he requested to file a belated appeal in May 2023. Neither length of time demonstrates diligence.

[13] Further, we agree with the State that “Hardin's age, education, and familiarity with the legal system do not support the trial court's decision to grant his motion ․” Appellee's Br. p. 24. At the time of sentencing, twenty-eight-year-old Hardin had obtained his GED but had also accumulated seven felony and two misdemeanor convictions. Hardin was already familiar with the legal system and his knowledge further developed as he initiated the proceedings in this case. In light of these circumstances, we conclude Hardin was not prompt enough.

[14] Moreover, Hardin has admitted on at least one occasion that he lacked diligence in pursuing permission to file a belated notice to appeal:

Hardin asks us to “hear his freestanding claims under the standard of review for a belated appeal pursuant to Ind. Post-Conviction Rule 2 for judicial economy.” This we cannot do because Hardin never petitioned the trial court for permission to file a belated notice of appeal pursuant to P-C.R. 2(1). In fact, he expressly indicated in his [motion to correct error] that he had not sought such relief because he would be ineligible due to his lack of diligence over the years to pursue a belated appeal.

Hardin, No. 22A-PC-1913, at *2 n.3 (internal citation omitted). Thus, Hardin was aware of P-C.R. 2 when he initiated his first appeal.

[15] Hardin has failed to prove that he was diligent in pursuing permission to file a belated appeal. We note, however, that this is not the end of the road for Hardin. As mentioned previously, the trial court has held in abeyance his PCR 1 petition and may now proceed with our instructions on remand in our previous decision to resolve that matter.

Conclusion

[16] Because Hardin was not diligent in requesting permission to file a belated notice of appeal under P-C.R. 2(1), we reverse the trial court's order and dismiss this appeal.

[17] Dismissed.

Najam, Senior Judge.

Judges Tavitas and Felix concur. Tavitas, J., and Felix, J., concur.