Najam, J.
Eran D. Haddock appeals the trial court’s denial of his petition for permission to file a belated notice of appeal. Haddock presents two issues for our review, which we consolidate and restate as whether the trial court erred when it denied his petition.
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On March 13, 2015, the State charged Haddock with two counts of dealing in cocaine or a narcotic drug, as Level 3 felonies. Thereafter, on January 5, 2016, the State and Haddock entered into a plea agreement. … Haddock admitted that he had sold seven hydromorphone pills to a confidential informant and that the offense took place “in the physical presence of a child less than eighteen (18) years of age, when I knew the child was present and might be able to see or hear the offense.” In exchange for Haddock’s guilty plea, the State agreed to dismiss the second count.
Haddock’s plea agreement included a provision that stated: “I understand that I have a right to appeal my sentence. As a condition of entering into this plea agreement, I hereby knowingly and voluntarily waive my right to appeal my sentence so long as the Judge sentences me within the terms of my plea agreement.” The plea agreement left sentencing to the discretion of the trial court.
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Thereafter, on February 2, 2016, the trial court held a sentencing hearing. At the conclusion of the hearing, the trial court stated: “The criminal history shows two (2) other felony offenses, eight (8) prior misdemeanor offenses, five (5) petitions to revoke. The factual basis for this particular offense specifically includes that it took place in the physical presence of a child less than eighteen (18) years of age.” The court then sentenced Haddock to an aggravated sentence of fourteen years, with twelve years executed and two years suspended to probation.
On September 12, 2016, Haddock, pro se, filed a petition for post-conviction relief in which he alleged that he had not received effective assistance of trial counsel. Thereafter, on September 29, a Deputy Public Defender filed an appearance on Haddock’s behalf. But, on the same day, that attorney filed a notice in which he indicated that, due to his caseload, he could not currently investigate Haddock’s claims. As a result, the court stayed the post-conviction proceedings.
Then, on January 8, 2018, a second Deputy Public Defender, Mark Koselke, filed an appearance on Haddock’s behalf. On April 30, Haddock, with counsel, filed a petition for permission to file a belated notice of appeal. In the petition, Haddock asserted that his sentence was illegal because the trial court had used an improper aggravator when it sentenced him. … Haddock also included an affidavit in which he stated:
“I was previously informed that I had waived my right to appeal the sentence. … But he further stated that his trial counsel did not advise him that the “waiver of appellate rights did not apply if the Judge failed to follow sentencing procedure and guidelines. I first learned of this option on February 27, 2018, at a client conference with Deputy Public Defender Mark Koselke.” The trial court denied Haddock’s petition without a hearing. This appeal ensued.
… Indiana Post-Conviction Rule 2 allows a defendant to seek permission to file a belated notice of appeal. … “If the trial court finds that the requirements of Section 1(a) are met, it shall permit the defendant to file the belated notice of appeal. Otherwise, it shall deny the petition.” P-C.R. 2(1)(c) (emphasis added).
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Post-Conviction Rule 2 expressly applies only to an “eligible defendant,” which 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.” … the State contends that Haddock is not an eligible defendant “because he cannot show that he had the right to directly appeal his sentence” since Haddock waived the right to appeal his sentence pursuant to the terms of the plea agreement.
It is well settled that a defendant can waive his right to appeal a sentence. See Crider v. State, 984 N.E.2d 618, 623 (Ind. 2013). However, a defendant’s waiver of appellate rights is only valid if the sentence is imposed in accordance with the law. See id. at 625. Thus, if a sentence imposed is illegal, and the defendant does not specifically agree to the sentence, the waiver-of-appeal provision is invalid. See id.
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At this stage in the proceedings, we are unwilling to place the burden on Haddock to argue the merits of his putative belated appeal. Rather, we hold that Haddock would have had the right to raise in a timely appeal the issue of whether his sentence is illegal. … Accordingly, as that is the issue Haddock seeks to raise in his putative belated appeal, we hold that Haddock is an eligible defendant pursuant to Post-Conviction Rule 2.
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We next address whether Haddock has established that he was diligent in requesting permission to file a belated notice of appeal. …
Here, just over two years passed between the date the trial court sentenced Haddock and the date he filed his petition for permission to file a belated notice of appeal. But, as discussed above, he did not become aware of the fact that he could appeal his sentence as an illegal sentence until he met with Koselke in February 2018. Then, once Haddock learned that he could appeal his sentence, only two months passed before he filed his petition. Because Haddock filed his petition within a reasonable time after he had learned of his right to appeal his sentence, we hold that the trial court erred when it concluded that Haddock had not met his burden to show that he was diligent in requesting permission to file a belated notice of appeal.
… We reverse the trial court’s judgment and remand with instructions for the trial court to grant Haddock’s petition for permission to file a belated notice of appeal.
Reversed and remanded with instructions.
Crone, J., and Pyle, J., concur.