Crone, Judge.
Ronald L. Sanford, Jr., appeals the denial of his petition for permission to file a belated notice of appeal of his sentence filed pursuant to Indiana Post Conviction Rule 2. He argues that the trial court abused its discretion in finding that he had failed to carry his burden to prove that he was diligent in requesting permission to file a belated notice of appeal. He also argues that pursuant to In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), his right to appeal should be restored due to extraordinarily compelling reasons.
We conclude that the trial court did not abuse its discretion in denying Sanford’s petition for permission to file a belated notice of appeal. We also conclude that O.R. need not be extended to criminal defendants who already have a remedy for reinstating an untimely appeal through Post-Conviction Rule 2. Therefore, we affirm.
….
In August 1987, thirteen-year-old Sanford and a friend forced their way into Sanford’s elderly neighbors’ home. Sanford demanded money from eighty-seven-year-old Julia Belmar and eighty-three-year-old Anna Harris. Sanford stabbed both women multiple times, killing them.
… In March 1989, fifteen-year-old Sanford pled guilty [in adult court] pursuant to a plea agreement to two counts of murder, one count of class A felony robbery, and one count of class B felony burglary. The plea agreement left sentencing open. The State dismissed the remaining charges. At Sanford’s guilty plea hearing, the trial court informed him that he was waiving his right to appeal his convictions but not his right to postconviction relief pursuant to Indiana Post-Conviction Rule 1 (“PCR”). The trial court did not advise Sanford that he had a right to appeal his sentence.
In April 1989, the trial court sentenced Sanford to fifty years for each count of murder, fifty years for robbery, and twenty years for burglary, all to be served consecutively, for an aggregate sentence of 170 years. The trial court did not advise Sanford that he had a right to appeal his sentence.
Between February 1991 and November 1995, Sanford filed four requests with the trial court for transcripts so that he could prepare a PCR petition. All his requests were denied without explanation. During this time, he also filed two requests with the juvenile court for transcripts, which were also denied. Sanford did not know what else to do and stopped filing motions.
In February 2004, Sanford wrote a letter to the State Public Defender’s Office seeking advice on how to obtain his transcripts. That same month, a deputy public defender responded to Sanford with a letter [suggesting that the court would likely grant the request if Sanford filed a PCR]….
In March 2005, Sanford filed a motion to request transcripts, which the trial court denied on March 31, 2005. The trial court indicated that it was denying the motion because “[n]othing is pending.” [Record citations omitted throughout.]
In January 2006, Sanford [began making sporadic efforts at pursuing PCR, requesting copies of all filings and transcripts, but he was unable to proceed because despite repeated trial court orders, he never received all of the transcripts he requested.] …
….
In April 2008, Sanford had still not received the transcript of the guilty plea hearing, and he moved to withdraw his PCR petition without prejudice, which the trial court granted. In January 2010, Sanford filed a motion requesting that the court compel compliance with its order granting Sanford’s motion for the transcript of the guilty plea hearing. The trial court denied the motion because nothing was pending.
In June 2011, Sanford fil[ed] another pro se PCR petition. The trial court appointed the State Public Defender to represent Sanford. Sanford, by counsel, requested three continuances of the PCR evidentiary hearing.
In February 2015, Sanford, by counsel, filed a petition for permission to file a belated appeal of his sentence pursuant to Post-Conviction Rule 2 and requested that his PCR petition be held in abeyance. …
In May 2015, the trial court issued a written order with factual findings denying Sanford’s petition for permission to file a belated appeal. The trial court found that Sanford was not at fault for not filing a timely notice of appeal but also found that he had not shown that he had been diligent in seeking an appeal because (1) he made no attempts to either obtain transcripts or make any other filings for almost nine and a half years between 1995 and 2005, and (2) he delayed filing his PCR petition until July 2006 even though he learned in February 2005 from the public defender that once he filed his PCR petition he would be able to obtain his transcripts and could amend his PCR petition. This appeal ensued.
….
To successfully obtain permission to file a belated notice of appeal, the defendant must show, by a preponderance of the evidence, that “the failure to file a timely notice of appeal was not due to the fault of the defendant” and “the defendant has been diligent in requesting permission to file a belated notice of appeal.” Ind. Post-Conviction Rule 2(1)(a); Moshenek [v. State], 868 N.E.2d [419,] 422-23 [(Ind. 2007)]. …
Sanford challenges the trial court’s finding that he did not carry his burden to establish that he was diligent in seeking an appeal. Several factors are relevant in determining whether a defendant was diligent. “Among them are the overall passage of time; the extent to which the defendant was aware of relevant facts; and the degree to which delays are attributable to other parties.” [Citations omitted; footnote omitted.] “When the overall time stretches into decades, a belated appeal becomes particularly problematic because of the risk that significant problems will be encountered in any retrial due to unavailable evidence or witnesses or failing memories.” Moshenek, 868 N.E.2d at 424.
Here, the trial court found that Sanford had failed to show that he was diligent because he made no attempt to either obtain transcripts or make any other filings for almost nine and a half years between November 1995, when he filed a motion for transcripts, and March 2005, when he filed another motion for transcripts. Sanford asserts that the trial court’s finding that he was not diligent is erroneous as a matter of law because he cannot be faulted for failing to pursue a challenge to his sentence when he did not have the transcripts. Although we understand Sanford’s frustration with the repeated denials of his requests for transcripts between February 1991 and November 1995, the lack of progress during that time does not explain the following nine years of inaction that passed before he contacted the public defender for advice in 2004. [Footnote omitted.]
The trial court also found that Sanford delayed filing his PCR petition until July 2006 even though he learned in February 2004 from the public defender that once he filed his PCR petition he would be able to obtain his transcripts and could amend his PCR petition. Sanford argues that he reasonably did not follow the public defender’s guidance because he “wasn’t ready to proceed” and “did [not] want to put something into court that was going to [get him] procedurally rejected out because it was factually untrue or incorrect.” Sanford’s argument is unavailing on appeal because the trial court, not this Court, was in the best position to assess the credibility of Sanford’s testimony, and its ruling is entitled to substantial deference. See Moshenek, 868 N.E.2d at 424. Therefore, we conclude that the trial court did not abuse its discretion in finding that Sanford failed to prove that he was diligent in seeking an appeal.
….
Sanford next contends that pursuant to O.R., 16 N.E.3d 965, his right to appeal may be restored. In O.R., our supreme court … explained that a party’s forfeiture of the right to appeal does not mean that the appellate courts lose their authority to hear the appeal. 16 N.E.3d at 971. Rather, the question becomes whether there are “extraordinarily compelling reasons” why this forfeited right should be restored. [Footnote omitted.] Id. Sanford asserts that such reasons exist in this case, and therefore his forfeited right to appeal his sentence should be restored.
The State asserts that “[n]othing in the Supreme Court’s decision suggests that it was meant to apply where a specific rule establishing the requirements for pursuing a belated appeal already exists.” We agree. Appellate Rule 9 provides that the right to appeal shall be forfeited except as provided by Post-Conviction Rule 2. Thus, criminal defendants already have a means whereby an untimely appeal may be restored and that is by filing a petition for permission to file a belated notice of appeal pursuant to Post-Conviction Rule 2. … Accordingly, we decline to extend O.R. to criminal defendants who are eligible to avail themselves of Post-Conviction Rule 2.
Based on the foregoing, we affirm the trial court’s denial of Sanford’s petition for permission to file a belated notice of appeal.
Affirmed.
Vaidik, C.J., and Bailey, J., concur.
Ronald L. Sanford, Jr., appeals the denial of his petition for permission to file a belated notice of appeal of his sentence filed pursuant to Indiana Post Conviction Rule 2. He argues that the trial court abused its discretion in finding that he had failed to carry his burden to prove that he was diligent in requesting permission to file a belated notice of appeal. He also argues that pursuant to In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), his right to appeal should be restored due to extraordinarily compelling reasons.
We conclude that the trial court did not abuse its discretion in denying Sanford’s petition for permission to file a belated notice of appeal. We also conclude that O.R. need not be extended to criminal defendants who already have a remedy for reinstating an untimely appeal through Post-Conviction Rule 2. Therefore, we affirm.
….
In August 1987, thirteen-year-old Sanford and a friend forced their way into Sanford’s elderly neighbors’ home. Sanford demanded money from eighty-seven-year-old Julia Belmar and eighty-three-year-old Anna Harris. Sanford stabbed both women multiple times, killing them.
… In March 1989, fifteen-year-old Sanford pled guilty [in adult court] pursuant to a plea agreement to two counts of murder, one count of class A felony robbery, and one count of class B felony burglary. The plea agreement left sentencing open. The State dismissed the remaining charges. At Sanford’s guilty plea hearing, the trial court informed him that he was waiving his right to appeal his convictions but not his right to postconviction relief pursuant to Indiana Post-Conviction Rule 1 (“PCR”). The trial court did not advise Sanford that he had a right to appeal his sentence.
In April 1989, the trial court sentenced Sanford to fifty years for each count of murder, fifty years for robbery, and twenty years for burglary, all to be served consecutively, for an aggregate sentence of 170 years. The trial court did not advise Sanford that he had a right to appeal his sentence.
Between February 1991 and November 1995, Sanford filed four requests with the trial court for transcripts so that he could prepare a PCR petition. All his requests were denied without explanation. During this time, he also filed two requests with the juvenile court for transcripts, which were also denied. Sanford did not know what else to do and stopped filing motions.
In February 2004, Sanford wrote a letter to the State Public Defender’s Office seeking advice on how to obtain his transcripts. That same month, a deputy public defender responded to Sanford with a letter [suggesting that the court would likely grant the request if Sanford filed a PCR]….
In March 2005, Sanford filed a motion to request transcripts, which the trial court denied on March 31, 2005. The trial court indicated that it was denying the motion because “[n]othing is pending.” [Record citations omitted throughout.]
In January 2006, Sanford [began making sporadic efforts at pursuing PCR, requesting copies of all filings and transcripts, but he was unable to proceed because despite repeated trial court orders, he never received all of the transcripts he requested.] …
….
In April 2008, Sanford had still not received the transcript of the guilty plea hearing, and he moved to withdraw his PCR petition without prejudice, which the trial court granted. In January 2010, Sanford filed a motion requesting that the court compel compliance with its order granting Sanford’s motion for the transcript of the guilty plea hearing. The trial court denied the motion because nothing was pending.
In June 2011, Sanford fil[ed] another pro se PCR petition. The trial court appointed the State Public Defender to represent Sanford. Sanford, by counsel, requested three continuances of the PCR evidentiary hearing.
In February 2015, Sanford, by counsel, filed a petition for permission to file a belated appeal of his sentence pursuant to Post-Conviction Rule 2 and requested that his PCR petition be held in abeyance. …
In May 2015, the trial court issued a written order with factual findings denying Sanford’s petition for permission to file a belated appeal. The trial court found that Sanford was not at fault for not filing a timely notice of appeal but also found that he had not shown that he had been diligent in seeking an appeal because (1) he made no attempts to either obtain transcripts or make any other filings for almost nine and a half years between 1995 and 2005, and (2) he delayed filing his PCR petition until July 2006 even though he learned in February 2005 from the public defender that once he filed his PCR petition he would be able to obtain his transcripts and could amend his PCR petition. This appeal ensued.
….
To successfully obtain permission to file a belated notice of appeal, the defendant must show, by a preponderance of the evidence, that “the failure to file a timely notice of appeal was not due to the fault of the defendant” and “the defendant has been diligent in requesting permission to file a belated notice of appeal.” Ind. Post-Conviction Rule 2(1)(a); Moshenek [v. State], 868 N.E.2d [419,] 422-23 [(Ind. 2007)]. …
Sanford challenges the trial court’s finding that he did not carry his burden to establish that he was diligent in seeking an appeal. Several factors are relevant in determining whether a defendant was diligent. “Among them are the overall passage of time; the extent to which the defendant was aware of relevant facts; and the degree to which delays are attributable to other parties.” [Citations omitted; footnote omitted.] “When the overall time stretches into decades, a belated appeal becomes particularly problematic because of the risk that significant problems will be encountered in any retrial due to unavailable evidence or witnesses or failing memories.” Moshenek, 868 N.E.2d at 424.
Here, the trial court found that Sanford had failed to show that he was diligent because he made no attempt to either obtain transcripts or make any other filings for almost nine and a half years between November 1995, when he filed a motion for transcripts, and March 2005, when he filed another motion for transcripts. Sanford asserts that the trial court’s finding that he was not diligent is erroneous as a matter of law because he cannot be faulted for failing to pursue a challenge to his sentence when he did not have the transcripts. Although we understand Sanford’s frustration with the repeated denials of his requests for transcripts between February 1991 and November 1995, the lack of progress during that time does not explain the following nine years of inaction that passed before he contacted the public defender for advice in 2004. [Footnote omitted.]
The trial court also found that Sanford delayed filing his PCR petition until July 2006 even though he learned in February 2004 from the public defender that once he filed his PCR petition he would be able to obtain his transcripts and could amend his PCR petition. Sanford argues that he reasonably did not follow the public defender’s guidance because he “wasn’t ready to proceed” and “did [not] want to put something into court that was going to [get him] procedurally rejected out because it was factually untrue or incorrect.” Sanford’s argument is unavailing on appeal because the trial court, not this Court, was in the best position to assess the credibility of Sanford’s testimony, and its ruling is entitled to substantial deference. See Moshenek, 868 N.E.2d at 424. Therefore, we conclude that the trial court did not abuse its discretion in finding that Sanford failed to prove that he was diligent in seeking an appeal.
….
Sanford next contends that pursuant to O.R., 16 N.E.3d 965, his right to appeal may be restored. In O.R., our supreme court … explained that a party’s forfeiture of the right to appeal does not mean that the appellate courts lose their authority to hear the appeal. 16 N.E.3d at 971. Rather, the question becomes whether there are “extraordinarily compelling reasons” why this forfeited right should be restored. [Footnote omitted.] Id. Sanford asserts that such reasons exist in this case, and therefore his forfeited right to appeal his sentence should be restored.
The State asserts that “[n]othing in the Supreme Court’s decision suggests that it was meant to apply where a specific rule establishing the requirements for pursuing a belated appeal already exists.” We agree. Appellate Rule 9 provides that the right to appeal shall be forfeited except as provided by Post-Conviction Rule 2. Thus, criminal defendants already have a means whereby an untimely appeal may be restored and that is by filing a petition for permission to file a belated notice of appeal pursuant to Post-Conviction Rule 2. … Accordingly, we decline to extend O.R. to criminal defendants who are eligible to avail themselves of Post-Conviction Rule 2.
Based on the foregoing, we affirm the trial court’s denial of Sanford’s petition for permission to file a belated notice of appeal.
Affirmed.
Vaidik, C.J., and Bailey, J., concur.