PREBLE v. STATE, 240 Ind. 282 (1959)

163 N.E.2d 32

No. 29,832.Supreme Court of Indiana.
Filed December 23, 1959. Rehearing denied January 27, 1960.

1. APPEAL — Belated Appeal — Sufficient Cause To Excuse Delay — Prima Facie Showing of Merit. — Before a belated appeal can be granted, sufficient cause must be shown to excuse the delay, and there must be a prima facie showing of merit to the appeal. p. 283.

2. APPEAL — Belated Appeal — Praecipe for Appeal — Incompetent Counsel — Prima Facie Showing of Merit. — Where petitioner did not initiate his appeal because of failure to file praecipe for transcript of record and where the petitioner has not alleged that he was without counsel below or that his counsel was incompetent, nor has he given any reason in law why he should not be bound by his failure to take an appeal within the time provided by law, nor does the petition set out the facts or circumstances from which it can be determined whether there is any merit to his attempted belated appeal, then petition for belated appeal will be denied. p. 283.

Page 283

From the Marion Criminal Court, Division No. 2, Norman E. Brennan, Special Judge.

Petitioner, Marvin L. Preble, was convicted of presenting a false claim and perjury. He has filed in the Supreme Court a verified petition for permission to take a belated appeal from his judgments of conviction.

Petition denied.

John W. Agnew, of Indianapolis, for petitioner-appellant.

Edwin K. Steers, Attorney General, and John A. Pushor,
Deputy Attorney General, for appellee.

LANDIS, J.

Petitioner has filed in this Court verified petition for permission to take a belated appeal from his judgments of conviction for presenting a false claim and perjury for which he was sentenced respectively to 2-14 and 1-10 years’ imprisonment. The State of Indiana has filed response in opposition thereto.

It is the well settled law of this jurisdiction that before a belated appeal can be granted, sufficient cause must be shown to excuse the delay, and there must be a prima facie showing 1. of merit to the appeal. See: Kirkland v. State (1956), 235 Ind. 450, 134 N.E.2d 223; State ex rel. Casey v Murray (1952), 231 Ind. 74, 106 N.E.2d 911.

From the petition it appears petitioner, who was represented by an attorney, was desirous of taking a regular appeal from his judgments of conviction but the appeal was never initiated 2. because of his failure to file praecipe for a transcript of the record.[1] Petitioner has not alleged that he was without counsel below or that his counsel was incompetent, nor has he given any reason in law why he should not be

Page 284

bound by his failure to take an appeal within the time provided by law.

Petitioner has alleged in the form of conclusions that the evidence below was “not sufficient to sustain a conviction” without setting out the facts or circumstances from which we can determine whether there is any merit to his attempted belated appeal. Further, it appears the response filed by the Attorney General has denied the allegations made by the petitioner.

We are unable to conclude that petitioner has made a sufficient showing either that he should be excused for the delay or that he has merit to his contemplated appeal.

Petition denied.

Arterburn, C.J., and Bobbitt, J., concur.

Achor, J., not participating because of illness.

Jackson, J., not participating.

NOTE. — Reported in 163 N.E.2d 32.