by Douglas Ankney

The Supreme Court of Indiana held that Charlie D. Leshore, Jr., was entitled to file a belated appeal more than 21 years after his conviction because the trial court and Leshore’s attorneys failed to advise him of his right to appeal his sentence and because he promptly filed notice upon learning of his right to appeal from a fellow prisoner.

In 1999, Leshore pleaded guilty to numerous felonies. During its colloquy with Leshore, the trial court informed him that by pleading guilty he was giving up his right to appeal his conviction. The court sentenced Leshore to 70 years in the Indiana Department of Corrections. Neither the court nor Leshore’s public defender informed him of his right to appeal his sentence.

In 2001, Leshore argued in a petition for postconviction relief under Indiana Post-Conviction Rule 1 that his sentence was inappropriate due to the nature of the offense and the character of the offender. The State Public Defender’s Office reviewed Leshore’s petition, concluded the “trial court advised Leshore of all necessary rights,” and withdrew its representation. Leshore abandoned his efforts in 2005.

Then on December 20, 2021, Leshore petitioned for postconviction relief to file a belated notice of appeal under Rule 2, alleging he “signed his guilty plea” but “there was no advisement that he had the right to appeal his sentence.” According to Leshore, it was not until December 1, 2021, that he learned from another prisoner that he could appeal his sentence. The trial court denied Leshore’s petition without a hearing, and Leshore appealed pro se.

A divided Court of Appeals (“COA”) affirmed, holding that Leshore was “unable to show that he was diligent in his pursuit of permission to file a belated appeal.” The Indiana Supreme Court granted Leshore’s petition for transfer.

The Court observed “Indiana Post-Conviction Rule 2(1)(a) establishes the requisite for filing a belated notice of appeal.” Under Rule 2(1)(a), “[t]he 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 (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. There are no assigned “standards of fault or diligence.” Id. Instead, courts analyze a range of factors that include “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.

The Court stated: “A public defender has distinct obligations under Indiana Post-Conviction Rule 1(9)(c). That rule requires the public defender to consult with Leshore and ‘ascertain all grounds for relief under this rule, amending the petition if necessary to include any grounds not included by petitioner in the original petition.’ Further, ‘[i]n the event that counsel determines the proceeding is not meritorious or in the interests of justice, ... counsel shall [certify] that ... the petitioner has been consulted regarding grounds for relief in his pro se petition and any other possible grounds....’”

In the present case, Leshore’s public defender did none of the above, the Court noted. Instead, the public defender shared mistaken legal advice with Leshore about available postconviction relief and failed to inform Leshore of his right to appeal his sentence. Lack of appellate advisement may constitute grounds for satisfying the no-fault requirement of Rule 2(1)(a)(2). Moshenek.

In Baysinger v. State, 835 N.E.2d 223 (Ind. Ct. App. 2005), the trial court failed to inform the defendant of his right to appeal his sentence and “instead informed him that by pleading guilty he was giving up ‘most’ of his grounds for appeal.” The COA decided this advice was “insufficient guidance to a defendant who is pleading guilty as to what claims may or may not be available for appeal.” Id. The defendant in Baysinger asserted that his attorney did not inform him of his right to appeal, and the COA concluded the defendant was not at fault for his failure to file a timely notice of appeal. The Court in the present case similarly concluded Leshore was not at fault for the delayed notice because the mistaken legal advice he received left him unaware of his right to appeal.

As for Leshore’s diligence, in Johnson v. State, 898 N.E.2d 290 (Ind. 2008), the Supreme Court held that “[p]rompt efforts to pursue [challenges to sentences] through P-C.R. 2 were allowed to proceed.” Leshore learned of his right to appeal on December 1, 2021, and filed his notice on December 20, 2021. The Court concluded that Leshore filing his notice 19 days after learning of his right to appeal was indeed “prompt.” The Court explained that the correct starting point for determining whether he acted promptly was not 21 years ago when he was sentenced but rather on December 1, 2021, when he first learned of his right to appeal. Viewed in that context, the Court had no trouble concluding that he acted promptly. Thus, the Court ruled he satisfied Rule 2(1)(a) for filing a belated notice of appeal.

Accordingly, the Court vacated the COA’s opinion and remanded to the trial court with instructions to grant the petition to allow Leshore’s appeal to proceed. See: Leshore v. State, 20 N.E.3d 474 (Ind. 2023).

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