David Sholes   1-9   SCrt – Dickson
(Special Judge Thomas Hakes, Wabash Circuit Court, appeal dismissed)

  1. Life without parole (belated) appeal dismissed because no appeal can be taken from the fixed term of life without parole. 
  2. Belated appeal of sentence imposed on open plea on remaining counts dismissed because of a lack of diligence under PCR 2(1)(b).   

FACTS: Defendant was convicted of the murder of three people and the attempted murder of a fourth through a mixed plea.  One murder victim was a fireman, and in return for pleading guilty to the fixed term of life without parole, the state dismissed the death penalty.  The defendant went open on the remaining three charges.  He received life with out parole for the murder of the fireman, 65 yrs on each remaining murder and 50 yrs on the attempted murder count. 
- The defendant was sentenced March 7, 2007 for the 2006 case.
- One year later in March of 1998 he sought post-conviction relief alleging ineffective assistance, an involuntary plea, and inadequate findings to support the life without parole sentence.  No challenge was made concerning the court’s discretion on the term of years sentencing.  The PCR was denied.  
- In May of 2000 the defendant was granted permission to file a successive petition for post conviction relief, but it was dismissed for lack of diligence in pursuing it. In the successive petition the defendant made over 100 claims.  Fifteen of them were directed at the life without parole sentence, five might arguably be read to relate generally to all the sentences received, and at least two were clearly directed to all his sentences.  
-In May of 2005 the defendant sought appointment to bring this belated appeal.
- In October of 2006 the trial court granted the defendant permission to file a belated notice of appeal under PCR 2. 

DISCUSSION: 
FIXED PLEA:  Under Appellate Rule 4(A)(1)(a) the Supreme Court has exclusive jurisdiction over appeals of life without parole sentencing.  This life without parole sentence is a fixed term that doesn’t involve court discretion.  No appeal, (belated or timely) can be taken from a fixed term plea.  Thus, the Supreme Court dismissed the appeal of the life without parole sentence.       
OPEN PORTION OF PLEA:  It seems futile to discuss the open plea portion of the defendant’s sentence once the life without parole appeal is dismissed.  But in the interest of diligence, here’s a discussion about the lack of it:   
Since the trial court exercises discretion in an open plea, an open plea sentence can be directly appealed.  Permission to grant a belated appeal of this sentence must rest on two things.  They are the defendant acted without fault, and he was diligent. 
WITHOUT FAULT:  Here, the Supreme Court seems to accept that the defendant acted without fault because he was told during the guilty plea that he was giving up the right to appeal. 
NO DILIGENCE:  However, the defendant acknowledged knowing he could challenge his sentence through collateral attack (a PCR).  Nevertheless, he failed to pursue that vehicle as a challenge the open portion of his plea.  Because the defendant was not diligent in attacking the open portion of his sentence through a PCR, he failed to establish the diligence he needed to pursue a belated appeal. 

The Supreme Court declined the defendant’s invitation to find waiver by the State concerning the defendant’s failure of proof about diligence.  In other words, the State’s lack of diligence in objecting did not alleviate the defendant’s lack of diligence in proof about diligence.  So, two wrongs don’t make a right.  Or, when both sides fail to be diligent, the court still dismisses the claim.  Who wants to listen to two sides that lack diligence?  And really despite the niceties of this opinion, when you lack diligence, can we really say you acted without fault in your pursuit of a belated appeal?