Massa, J.
Chaucer said in The Canterbury Tales, “For better than never is late; never to succeed would be too long a period.” Centuries later, we simply say, “Better late than never,” and say it here to afford Appellant a chance at relief.
This ancient principle buttresses Post-Conviction Rule 2(1)(a), which permits convicted defendants to seek permission to file a belated notice of appeal under certain circumstances. Yet Charlie Leshore, who pleaded guilty to felonies in 1999, was denied that chance upon discovering new information in 2021. He claims that at his guilty plea hearing he was never advised of his right to appeal his sentence, and only recently learned that he could. Still, his post-conviction petition for permission to file a belated notice of appeal was denied in the trial court and the Court of Appeals affirmed over a dissent. We now grant Leshore’s petition to transfer, reverse and remand with instructions to let his appeal proceed.
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On transfer, we evaluate one issue: whether the trial court erred by denying Leshore’s petition for permission to file a belated notice of appeal.4 For the reasons below, we hold that it did.
When confronted with a tardy petition seeking dispensation from otherwise firm deadlines and their decisive consequences, judges must ask, “was it your fault?” And if not, “did you act quickly enough thereafter?” Courts should take these questions up in sequence, though a negative answer to either one can be enough to bar relief. For instance, if the delay were caused through no fault of petitioner, but he still waited years to seek relief after discovery of the error, he could be denied on a lack of diligence alone.
Here the very same facts influence both answers. It was not Leshore’s fault because he received inaccurate advisements from both his lawyers and the trial court, and his reliance on that advice led to his long delay in seeking relief until he learned otherwise from another source.
The panel below relied on two cases to affirm the denial of Leshore’s petition to file a belated notice of appeal based on a lack of diligence alone: Moshenek v. State, 868 N.E.2d 419 (Ind. 2007), and Cole v. State, 989 N.E.2d 828 (Ind. Ct. App. 2013), trans. denied. We, however, read those cases slightly differently. First, while Moshenek held the defendant had not been diligent in requesting permission to file a belated notice of appeal, this Court still evaluated the issue of fault under subsection (a)(2): “The fact that a trial court did not advise a defendant about this right can establish that the defendant was without fault in the delay of filing a timely appeal.” 868 N.E.2d at 424. On this point, Moshenek suggests that a trial court’s failure to advise a defendant of his right to appeal can satisfy the no-fault requirement. See also Jackson v. State, 853 N.E.2d 138, 141 (Ind. Ct. App. 2006) (misadvisement); Baysinger v. State, 835 N.E.2d 223, 226 (Ind. Ct. App. 2005) (same), trans. denied. Second, while Cole indeed authorizes courts to resolve Rule 2(1)(a) petitions on “the diligence component alone,” 989 N.E.2d at 831, that principle does not bar Leshore from pursuing his appeal under these circumstances, as he was actually diligent once accurately informed of his rights. Leshore could have lost on the “diligence component alone,” id., had he waited too long upon learning of the trial court’s and public defender’s errors, but we conclude that he acted with sufficient alacrity.
The source of the delay was the mistaken advice shared with Leshore. That said, the panel confirmed in a footnote the right to appeal is not among the necessary rights for which a trial court advisement is required when the defendant pleads guilty. Leshore, 2022 WL 3036401, at *3 n.2. In its view, the public defender’s assessment was proper because it was limited to Leshore’s pro se attack on his guilty plea, and not his sentence. See id. Even so, Leshore’s public defender also informed Leshore that he “did not discover any other post-conviction issues.” App. Vol. II, p. 82 (emphasis added).
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.” P-C.R. 1(9)(c) (emphasis added). 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 . . . .” Id. (emphasis added). Leshore’s public defender also needed to “expla[in] . . . the reasons for withdrawal” to him. Id. He did not.
Here, the public defender shared mistaken advice with Leshore about his available post-conviction relief. Leshore had a chance to appeal his sentence, but that choice was never presented to him. As for the sentencing court’s error, while the lack of appellate advisement is not grounds for overturning a guilty plea, see Ind. Code § 35-35-1-2 and Garcia v. State, 466 N.E.2d 33, 34 (Ind. 1984), its absence can constitute grounds for satisfying the no-fault requirement under Rule 2(1)(a)(2). See Moshenek, 868 N.E.2d at 424.
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The mistaken advice here establishes Leshore was not at fault for his delay. In short, he had no reason to appeal his sentence when he was never aware of his right to do so. The record also contains equitable factors weighing in his favor: he was nineteen years-old when sentenced, he had limited education and contact with the legal system, and no experience with appellate law and its many rules. These facts, reviewed as a whole, “fused to justify Leshore’s inaction.” Leshore, 2022 WL 3036401, at *5 (Weissmann, J., dissenting). To hold otherwise would be “unfair” because Leshore made a sensible and rational decision based on mistaken advice from “the very people responsible for advising him correctly.” Id.
Leshore argues that he did not learn he could appeal his sentence until he was informed by an inmate in 2021, after which “he was diligent and immediately began pursuing his [a]ppellate [r]ights.” Appellant’s Br. at 7. We agree.
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For example, in Johnson v. State, 898 N.E.2d 290 (Ind. 2008), this Court found “[p]rompt efforts to pursue those challenges through P-C.R. 2 were allowed to proceed.” Id. at 292. Johnson involved a defendant who amended his petition for post-conviction relief to include a sentencing claim in 2001, then withdrew his post-conviction petition in 2005, before filing for permission to file a belated notice of appeal in 2006. See id. at 291.
Here, Leshore falls within the Johnson category of petitioners having petitioned for post-conviction relief, which contained a challenge to his sentence in 2001 and remained pending until after Collins was decided. Critically, Johnson states the Post-Conviction Rule 2 challenge must be “prompt.” 898 N.E.2d at 292. But prompt according to what rightful starting place? Diligence under these facts is best measured from the time when Leshore learned of his rights to the filing of his permission to file a belated notice of appeal.
Thus, the more appropriate starting place for evaluating Leshore’s diligence begins on December 1, 2021. Nineteen days later, Leshore filed his petition. Similar to Baysinger, when the defendant confirmed he only learned of his right to challenge his sentence after he read Collins, Leshore acted promptly after discovering his rights from an inmate, who confirmed his discussion with Leshore. See Baysinger, 835 N.E.2d at 226. And while we decline to draw a line for when diligence must always begin, we can say Leshore was prompt enough.
The Court of Appeals thus erred in affirming the trial court’s decision to deny Leshore’s petition for permission to file a belated appeal, so we grant transfer, vacate the opinion, and remand to the trial court with instructions to grant the petition to allow Leshore’s appeal to proceed.
Rush, C.J., and Molter, J., concur.
Goff, J. dissents with separate opinion in which Slaughter, J., joins.
Goff, J., dissenting.
To obtain permission to file a belated notice of appeal, Charlie Leshore had to prove by a preponderance of the evidence that he was “diligent in requesting” such permission. See Ind. Post-Conviction Rule 2(1)(a)(3); Moshenek v. State, 868 N.E.2d 419, 422‒23 (Ind. 2007). The record here does not affirmatively show such diligence.
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In January 2005, following the State PD’s withdrawal from his case, Leshore decided to withdraw his Post-Conviction Rule 1 petition without prejudice, rather than continuing pro se. See P-C.R. 1(9)(c). At that point, Leshore had received the State PD’s advice that his case involved no potentially meritorious sentencing claims. The very fact that the State PD had analyzed his sentencing in depth must have indicated to Leshore that there was an opportunity to challenge his sentence in post-conviction proceedings. Instead, he abandoned any sentencing claim he may have considered bringing. And, from that time until 2021, Leshore did not attempt to pursue post-conviction relief.
In 2021, Leshore filed a Post-Conviction Rule 2 petition addressing his sentence, claiming that he had only recently learned he could file for a belated appeal. App. Vol. II, p. 87. This may be true in the technical sense that he only found out lately about his right to pursue Post-Conviction Rule 2, as opposed to Post-Conviction Rule 1, relief. But, practically speaking, Leshore had already received and abandoned the opportunity to challenge his sentence in post-conviction proceedings. He enjoyed State PD review at a time when it appeared he could raise a sentencing challenge via the Post-Conviction Rule 1 petition that he filed. His failure to pursue relief upon receipt of the State PD’s advice demonstrates a lack of diligence in pursuing his claims. His subsequent discovery that he should, after all, have filed for a Post-Conviction Rule 2 belated appeal does not meaningfully change things. Leshore’s position is not like that in Johnson, where the defendant filed a prompt sentencing challenge under Post-Conviction Rule 1 and dismissed it after Collins only so he could refile under Post-Conviction Rule 2. 898 N.E.2d at 291. Leshore gave up any pursuit of post-conviction relief for a period of sixteen years. Had he proceeded with sentencing claims via Post-Conviction Rule 1 in 2005, he would probably have discovered much sooner that he needed to seek a belated appeal.
Because I find that Leshore has not demonstrated diligence in pursuing an appeal, I respectfully dissent.
Slaughter, J., joins.