COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 05/25/2012. TRIAL JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-CONVICTION RELIEF SEEKING OUT-OF-TIME APPEAL.
FOR APPELLANT: ANDREW CONWILL (Pro se).
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND.
BEFORE GRIFFIS, P.J., MAXWELL AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
[¶1] To prove the right to an out-of-time appeal, the first thing a movant must show is that " he asked his attorney to appeal within the time allowed for giving notice of an appeal."  In Andrew Conwill's case, the time allowed for giving notice of an
appeal of his burglary conviction was within thirty days of the imposition of his sentence in June 2008.  In Conwill's motion for post-conviction relief (PCR), in which he sought an out-of-time appeal, Conwill did not claim that he asked his attorneys to perfect an appeal within this time. Instead, the record shows that, at the sentencing hearing, Conwill had waived his right to appeal as part of a plea agreement for a separate charge of aggravated assault. Because it is clear from Conwill's PCR motion and prior proceedings that he is not entitled to the relief he seeks--an out-of-time appeal of his burglary conviction--we affirm the summary dismissal of Conwill's PCR motion.
[¶2] In affirming, we must clear up some confusion that crept in well after the time to appeal the burglary conviction expired. In December 2008, Conwill pled guilty to aggravated assault. At the plea hearing, the trial judge was operating under the mistaken assumption that an outstanding post-trial motion tolled the time to appeal the burglary conviction. The judge denied the post-trial motion and told Conwill that his " thirty days [to appeal the burglary conviction] starts running from today," to which Conwill responded that he waived his right to appeal.
[¶3] The mistake was not recognizing that Conwill's post-trial motion was untimely and, thus, had not tolled the time to appeal. So the time to appeal had not " start[ed] running," but instead had run out months before. Therefore, the reason Conwill asserts he is entitled to an out-of-time appeal--that he told his new attorney he wanted to revoke his waiver and pursue an appeal two days after the December 2008 hearing--is not proof that " he asked his attorney to appeal within the time allowed for giving notice of an appeal." Because Conwill no longer had the right to appeal at the time he revoked his waiver of appeal, we find his revocation does not entitle him to an out-of-time appeal.
[¶4] While Conwill's two-count indictment for burglary and aggravated assault was severed,  to understand his request for an out-of-time-appeal, the facts and record proceedings cannot be separated.
[¶5] Two times in 2004 Conwill burst into the home of his fiancé 's paramour, Charles Kuebler. The first time, discovering his fiancé asleep on the couch with Kuebler, Conwill beat him up. The second time, when Conwill broke in, Kuebler was not there, so he demanded Kuebler's roommate deliver the message that " if Kuebler doesn't stop talking, he's dead." The first incident led to an indictment for aggravated assault.  The second incident led ...