Bailey, J.
Jordan Norton appeals his convictions and sentence for battery by means of a deadly weapon, as a Level 5 felony,1 and criminal recklessness, as a Level 6 felony. The State cross-appeals and asserts this appeal should be dismissed for failure to comply with the procedural rules for bringing a belated appeal.
Norton raises two issues on appeal; however, we do not reach those issues, as we find Norton was not entitled to file a belated notice of appeal.
We dismiss.
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Here, Norton did not even file a request for permission from the trial court to file a belated appeal. Rather, the trial court took it upon itself to “extend the time” for Norton to file a belated notice of appeal. App. at 179. However, as this Court has previously held, there is no provision of the appellate rules which permits trial courts to expand the time limit prescribed by Appellate Rule 9. See, e.g., Sewell v. State, 939 N.E.2d 686, 687 (Ind. Ct. App. 2010), abrogated on other grounds by In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014).
Nor was there any evidence upon which the trial court could have relied to permit a belated appeal under Post-Conviction Rule 2. Not only did Norton fail to even file a request seeking permission to file a belated appeal, but he also provided no evidence whatsoever regarding whether he was without fault for failing to file a timely notice of appeal and had been diligent in pursuing a belated appeal. “Without any evidence regarding the two elements of P-C.R. 2(1), a petitioner cannot have met his burden of proof.” Townsend v. State, 843 N.E.2d 972, 975 (Ind. Ct. App. 2006) (reversing the grant of permission to file a belated notice of appeal because the defendant failed to present any evidence to show that he had been without fault and diligent), trans. denied. Again, the defendant bears the burden to prove both requirements under Post-Conviction Rule 2(1) by a preponderance of the evidence. E.g., Leshore, 203 N.E.3d at 477. Given the lack of a petition and the trial court’s failure to hold a hearing, the trial court could not have determined properly that Norton was both without fault and diligent. Thus, the trial court erred when it allowed Norton to file a belated appeal.
Nevertheless, our Supreme Court has held that we may allow an otherwise forfeited appeal to proceed if we find “extraordinarily compelling reasons” for doing so. See In re adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014). However, Norton had not even alleged any such reasons, much less pointed to evidence supporting their existence.
Norton forfeited his right to appeal by failing to file a timely Notice of Appeal, and there was no evidence from which the trial court could have determined that Norton was entitled to file a belated appeal under Post-Conviction Rule 2. Therefore, we dismiss this appeal.
Dismissed.
Brown, J., concurs.
Weissmann, J., dissents with opinion.
Weissmann, J., dissenting.
Because I would decide this case on the merits, I respectfully dissent. I agree with the majority that trial courts lack the authority to unilaterally extend the clock for an appeal. But while this principle has gone unchanged over the years, the available remedies in this situation have dramatically shifted.
As the majority notes, our Supreme Court held in In re Adoption of O.R. that the untimely filing of an appeal is not a jurisdictional defect depriving courts of subject matter jurisdiction over the case. 16 N.E.3d 965, 971 (Ind. 2014). Instead, we must determine whether “extraordinary compelling reasons” for non-forfeiture exist. Id. I find sufficient evidence on the face of the record to apply this exception.
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I think it important to recognize that an appellant whose appeal was dismissed in this manner is almost certainly going to file a Post Conviction Rule 2 belated notice of appeal petition with the trial court. See, e.g., Sewell v. State, 939 N.E.2d 686, 686 (Ind. Ct. App. 2010); Tarrance v. State, 947 N.E.2d 494, 496 (Ind. Ct. App. 2011) (“As in Sewell, we recognize that Tarrance’s conduct will likely permit him to file a petition for permission to file a belated notice of appeal under Post-Conviction Rule 2.”). Given the trial court already extended the time for Norton to file his appeal on its own initiative, the success of this petition is not in any serious doubt. Dismissing Norton’s appeal now leads to nothing more than a delay in the date of eventual review and additional costs to the taxpayers who are funding Norton’s appeal—the opposite result of the “orderly and speedy justice” our procedural rules are meant to promote. In re Adoption of O.R., 16 N.E.3d at 971-72 (quoting In re Adoption of T.L., 4 N.E.3d 658, 661 n.2 (Ind. 2014).
Because Norton’s appeal is squarely before the court and no interest is served by dismissing based on the mistakes of others, I would consider the merits of this case.