Kody L. Hunt, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Nearly ten years after he was incarcerated for Level 1 felony child molesting, Kody Hunt filed a petition for permission to file a belated motion to correct error. After holding a hearing on the motion, the trial court denied the petition, and Hunt appeals.

[2] We affirm.

Facts and Procedural History

[3] On October 6, 2015, Hunt and the State entered into a plea agreement in which Hunt agreed to plead guilty to Level 1 felony child molesting. During the plea hearing, Hunt admitted that the victim of the offense was between eleven and twelve years old.¹ Tr. Vol. 2, p. 11. In exchange, the parties agreed that the State would dismiss a Level 4 felony child molesting charge ² and that the trial court would impose a thirty-year sentence in the Indiana Department of Correction. But the parties also agreed to a cap of twenty years on any executed time to be served. All other sentencing matters were left to the trial court's discretion.

[4] Hunt also agreed to waive his right to appeal his sentence “on the basis that it is erroneous, or for any reason” and waived “the right to have counsel appointed and the right to seek appellate review of the sentence pursuant to Indiana Appellate Rule 7(B), as long as the trial court sentences him․ within the terms of the plea agreement.” Appellant's App. Vol. 2, p. 50. The court accepted the plea agreement and sentenced Hunt to thirty years in the Department of Correction with twenty years executed and ten years suspended. The court noted in its sentencing order that Hunt is a credit-restricted felon.³

[5] Nearly ten years later, on June 9, 2025, Hunt filed a petition for permission to file a belated motion to correct error. Hunt complained that he did not file a timely motion to correct error because “he was not aware of the legal remedies that he could utilize nor did his counsel ever make him aware that options were available.” Appellant's App. Vol. 2, p. 66. At the hearing held on the motion, Hunt reiterated that he did not understand what his “options were and everything, until recently.” Tr. Vol. 2, p. 27. However, he also conceded that it was “kind of [his] fault as well, since it's taken so long.” Id. at 27-28.

[6] On the merits of his motion, Hunt argued that he was not a credit-restricted felon because the State had failed to prove that the victim was under the age of twelve when he committed his offense. In response, the State argued that Hunt is not an eligible defendant who can seek a belated motion to correct error and that he had failed to act diligently by filing his petition nearly ten years after he was sentenced and designated as a credit-restricted felon. The court denied Hunt's petition. Hunt now appeals.

The trial court did not abuse its discretion when it denied Hunt permission to file a belated motion to correct error.

[7] We review a trial court's decision whether to permit a defendant to file a belated motion to correct error for an abuse of discretion. See Russell v. State, 970 N.E.2d 156, 160 (Ind. Ct. App. 2012). Indiana Post-Conviction Rule 2(2) provides:

An eligible defendant convicted after a trial or plea of guilty may petition the court of conviction for permission to file a belated motion to correct error addressing the conviction or sentence, if:

(1) no timely and adequate motion to correct error was filed for the defendant;

(2) the failure to file a timely motion to correct error was not due to the fault of the defendant; and

(3) the defendant has been diligent in requesting permission to file a belated motion to correct error under this rule.

[8] 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.” Ind. Post-Conviction Rule 2(2). Moreover, Post-Conviction Rule 2 applies only to direct appeals of convictions or sentences and does not apply to appeals of collateral or post-judgment rulings. Hill v. State, 960 N.E.2d 141, 148-49 (Ind. 2012) (citing Newton v. State, 894 N.E.2d 192, 193 (Ind. 2008); Davis v. State, 771 N.E.2d 647, 649 (Ind. 2002)). Hunt is an eligible defendant if he would have had the right via a timely motion to correct error or direct appeal to challenge his classification as a credit-restricted felon.⁴

[9] The parties disagree whether Hunt was eligible to file a timely motion to correct error. Assuming for the sake of argument that Hunt is an eligible defendant, we conclude that Hunt was not without fault when he failed to timely request permission to file a belated motion to correct error.

“The defendant bears the burden of proving 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.” Moshenek [v. State], 868 N.E.2d 419, 422-23 (Ind. 2007). These inquiries are fact-sensitive because “[t]here is substantial room for debate as to what constitutes diligence and lack of fault on the part of the defendant.” Id. at 424. And since each case is shaped by its own circumstances, there are no assigned “standards of fault or diligence.” Id. at 423. Instead, courts examine a range of factors, including “the defendant's level of awareness of his procedural remedy, age, education, familiarity with the legal system, whether the defendant was informed of his appellate rights, and whether he committed an act or omission which contributed to the delay.” Id. (quoting Land v. State, 640 N.E.2d 106, 108 (Ind. Ct. App. 1994)).

Leshore v. State, 203 N.E.3d 474, 477 (Ind. 2023).⁵

[10] Hunt claims that he met his burden under Post-Conviction Rule 2(2) because he was not advised that he could appeal an illegal sentence or that he could file a motion to correct error. But Hunt is not attempting to challenge an illegal sentence; he is challenging whether the State sufficiently proved that he is a credit-restricted felon. And at some point, Hunt became aware of the availability of filing a motion to correct error, but he failed to disclose when he gained that awareness.

[11] At the hearing on his request for permission to file a belated motion to correct error, Hunt stated:

I didn't know earlier in the process ․ what I . . could do, what my options were and everything, until recently. So, I mean, it's kind of my fault as well, since it's taken so long.

Tr. Vol. 2, pp. 27-28. Hunt has been involved with the legal system since 1990, and, in addition to multiple juvenile delinquency adjudications, Hunt has several adult misdemeanor and felony convictions. Hunt has served time on probation, in home detention, and in jail. Hunt obtained his GED in 2001 and attended Ivy Tech for Industrial Maintenance. Appellant's App. Vol. 2, p. 45. Hunt stated that he “was able to get some information through” the Department of Correction from which he learned that he might be able to challenge his classification as a credit-restricted felon. Tr. Vol. 2, pp. 28-29. Yet, Hunt failed to explain why, with his familiarity with the criminal justice system, it took him nearly ten years to learn that he could request permission to file a belated motion to correct error.

[12] Hunt admitted that he was at least partially at fault for the ten-year delay in seeking to file the instant petition. Tr. Vol. 2, p. 28. For this reason, we conclude that Hunt did not meet his burden of proving by a preponderance of the evidence that he was without fault in the delay of filing or that he was “diligent in pursuing permission to file a belated motion to” correct error. See Leshore, 203 N.E.3d at 407 (citing Moshenek, 868 N.E.2d at 422-23 (Ind. 2007)). We therefore affirm the trial court's order denying Hunt permission to file a belated motion to correct error under Post-Conviction Rule 2(2).⁶

[13] Affirmed.

FOOTNOTES

1.   The State alleged that the offense was committed between March 7, 2015, and April 30, 2015. The victim's twelfth birthday was March 13, 2015.

2.   In that count, the State alleged that Hunt had molested another child who was ten years old when the offense was allegedly committed. Appellant's App. Vol. 2, p. 19.

3.   A “credit restricted felon” applies to a person convicted of child molesting if the offense is committed by a person at least twenty-one years old and the victim is less than twelve years old. See Ind. Code § 35-31.5-2-72.

4.   Hunt observes that Post-Conviction Rule 2(2)(b) instructs that the trial court must consider whether the defendant is “an eligible defendant” under Rule 2(2)(a) before considering the merits of the motion. Appellant's Br. at 10-11. Without passing judgment on the merits of the defendant's claim, courts necessarily must consider the nature of the defendant's claim to determine whether he is an eligible defendant.

5.   LeShore involved a belated notice of appeal under Post-Conviction Rule 2(1)(a). Under Rule 2(2)(a), the defendant must meet the same requirements of timeliness, lack of fault and diligence to be granted permission to file a belated motion to correct error.

6.   Even though Hunt filed his petition requesting permission to file a belated motion to correct error pursuant to Post-Conviction Rule 2(2), Hunt argues on appeal that the “trial court misunderstood what it was being asked to decide.” Br. of Appellant at 9. Hunt cites to the trial court's comment that Hunt was asking for “grace” from the court in pursuing his request. The court's comment is reasonably construed as a reflection of the length of time that had passed between Hunt's sentencing and the date he filed his petition. The court's statement does not lead us to conclude that the court was unaware of the requirements of Post-Conviction Rule 2(2) or that the court failed to consider Hunt's claim within the construct of that Rule.

Mathias, Judge.

May, J., and Felix, J., concur.