Court of Appeals of Indiana | Memorandum Decision 82A01

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Terry A. White Evansville, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Hilton Hazelwood , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. A ugust 31, 2016 Court of Appeals Ca se No. 82A01

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- 20 39 Appeal from the Vanderburgh Circuit Court The Honorable Kelli E. Fink , Magistrate Trial Court Cause No. 82C01

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- 0020 93

Pyle , Judge
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### S tatement of the Case

[1] In this discretionary interlocutory appeal, Hilton Hazelwood (“Hazelwood”) attempts to appeal the trial court ’ s interlocutory order, which granted in part and denied in part his motion to suppress evidence. Because Hazelwood failed to timely file his notice of appeal after this Court accepted jurisdiction o ver this discretionary i nterlocutory appeal and because w e find no extraordinary compelling reasons to restore his forfeited right to this interlocutory appeal , we dismiss the appeal.

[2] We dismiss. 1



### Issue

Whether this discretionary interlocutory appeal should be dismissed because Hazelwood failed to timely file a notice of appeal. 2 

### Facts

[3] Because of our disposition of this appeal, we will not delve into detailed facts surrounding the events leading up to the search of Hazelwood’s house. On April 8, 2015, around midnight, Evansville police officers

— after smelling the

1 In a separate opinion, issued contemporaneously with this opinion, w e also dismiss the discretionary interlocutory appeal of Hazelwood ’s wife and co - defendant , Beth Bailey

. See Bailey v. State , 82A01

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. 2 As part of his appeal, Hazelwood challenged the trial court ’ s partial denial of his motion to suppress. As part of the State ’ s cross - appeal, the State ra ised this challenge to the timeliness of the notice of appeal and also raised a challenge to the trial court ’ s partial grant of Hazelwood’s suppression motion. Because we conclude that the State ’ s argument regarding the timeliness of Hazelwood’s notice of appeal is dispositive, we address only that issue.Court of Appeals of Indiana | Memorandum Decision 82A01

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“heavy” odor of “green” 3 or raw marijuana emanating from the house of Hazelwood and his wife, Beth Ann Bailey (“Bailey”)

— w ent to the house to conduct a “knock and talk.” (Tr. 10 , 14 ). When the officers went onto the porch of the house, the odor of the green marijuana “intensified[.]” (Tr. 13). Hazelwood and Bailey , who came outside their house and onto the porch, declined to consent to a search of their home. The officers placed Hazelwood and Bailey in handcuffs, informed them that they w ere going to obtain a search warrant, and took them inside the house. During a protective sweep of the house, officers searched the basement and discovered over fifty marijuana plants and grow lights. When filing the affidavit for a search warrant, the

o fficers relied on the smell of marijuana and the marijuana found in the basement during the protective sweep

. The Honorable Richard D ’ Amour signed the search warrant at 2:30 a.m. on April 9, 2015. Upon execution of the search warrant, the officers found some marijuana plants and shears used to trim the plants into a form in preparation for sale. The officers also found some marijuana smoking pipes.

[4] The State charged Hazelwood with Count I, Level 5 felony dealing in marijuana (based on the amount of mar ijuana weighing at least ten pounds); 4

3 During the suppression hearing, an officer testified that “green” marijuana was “unburned, unsmoked . . . marijuana . . . from a plant or like something that ’ s been freshly packaged.” (Tr. 11).

4 I ND

. C ODE § 35

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Count II, Level 6 felony maintaining a common nuisance; 5 and Count III, Class B misdemeanor possession of marijuana (based on growing or cultivating marijuana)

. 6 The State also charged Bailey with these same three charges.

[5] Subsequently, o n May 27, 2015, Hazelwood filed a motion to suppress the marijuana seized by police

. Hazelwood asserted that the protective sweep search violated his rights against unreasonable search and seizure under both the United Stat es and Indiana Constitutions. H e also argued that the search warrant was “deficient” and “illegal” because it was “predicated upon evidence unlawfully obtained by a trespassing police officer.” (App. 1 1 ). That same day, Bailey filed an identical motion to supp ress. 7

[6] On June 18, 2015, t he trial court held a consolidated hearing on Hazelwood’s and Bailey ’ s suppression motion s. Thereafter, o n Septemb er 17, 2015, the trial court issued a joint order in which it granted in part and denied in part the suppression mo tion s (“interlocutory order”)

. Specifically, the trial court ’ s interlocutory order provided as follows:
Officers initially went to the residence of the defendants [Bailey and Hazelwood] after they identified the odor of marijuana coming from the residence . The officer then conducted a “knock and talk,” at which time the defendants declined to give consent

5 I.C. § 35

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- 13. This statute has since been repealed, effective July 1, 2016

. See P.L. 59

- 2016, § 8. A charge for maintaining a common nuisance is now codified under I NDIANA C ODE § 35

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- 5.
6 I.C. § 35

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7 Hazelwood and Bailey were represented by the same attorney and continue to be so on appeal.Court of Appeals of Indiana | Memorandum Decision 82A01

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for officers to enter the residence. Officers then handcuffed the defendants, entered the home, placed the defendants on the couch, and conducted a pro tective sweep of the home. The officers did not have a search warrant when they entered the home , and there were no exigent circumstances to justify a warrantless entry into the home. Any observations made or evidence found by the officers during this wa rrantless entry and the subsequent protective sweep are suppressed.
Law enforcement officers then obtained a search warrant for the residence based on their initial smell of marijuana and observations made during the initial entry and protective sweep. Pr obable cause to search the residence existed even without the evidence that the court has ordered suppressed because the search warrant was also based on officers ’ testimony that they smelled the odor of marijuana and were able to identify the odor as coming from the residence of the defendants. Therefore, any evidence first observed during the initial entry and protective sweep into the residence is ordered suppres sed. Any other evidence which was first observed only after the execution of the search warrant is not suppressed. (App. 7

- 8 ).

[7] O n October 1 4 , 2015, Hazelwood filed a motion to certify the interlocutory order for appeal. Seven days later, the trial cour t granted Hazelwood’s motion and certified its order for interlocutory appeal. Thereafter, on November 1 6 , 2015 , Hazelwood filed a motion with this Court seeking permission to file an interlocutory appeal. On December 18, 2015, o ur Court granted Hazelwoo d’sCourt of Appeals of Indiana | Memorandum Decision 82A01

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m otion and accepted jurisdiction over this discretionary interlocutory appeal. 8 Our order specified that Hazelwood was required to comply with Appellate Rule 14(B)(3) , which required, in relevant part, that Hazelwood file his notice of appeal “within fifteen (15) days of the Court of Appeals ’ order accepting jurisdiction over the interlocutory appeal.” Therefore, Hazelwood’s notice of appeal was due on or before January 4, 2016. 9 Hazelwood filed his notice of appeal on January 5, 2016.

[8] After Hazelwoo d filed his Appellant ’ s Brief, the State filed a motion to dismiss his interlocutory appeal , arguing that he had failed to timely file his notice of appeal. Specifically, t he State argued that Hazelwood’s notice of appeal was one day late and that there were no “extraordinary compelling reasons” to

excuse his failure to timely file his notice of appeal. (State ’ s Motion to Dismiss at 2)

.

[9] Hazelwood filed a response in opposition to the State ’ s motion . H e acknowledged that our Court issued its order on December 1 8 , 2015 and that he was required to file his notice of appeal within fifteen days of that order, or in this case, by January 4, 2016. To excuse his failure, he argued that “the Clerk of the Court did not provide notice of the Court ’ s Order until 4:01 P.M. . . .” ( Hazelwood’s Opposition Motion at 1). Hazelwood contended that the time of

8 The file stamp for our Court ’ s December 18, 2015 order indicates that the order was entered at 3 : 28 p.m.
9 Fifteen days from December 18, 2015 was Saturday January 2, 20 16; however, because that day was a non

business day, the due date for the notice of appeal was Monday January 4, 2016. See Ind. Appellate Rule 25.Court of Appeals of Indiana | Memorandum Decision 82A01

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4:01 p.m. was “CST” or Central Standard Time, which would then make it at 5:01 “EST” or Eastern Standard Time and “after the close of business on Friday, December 18, 2015.” Id. Hazelwood reasoned that because he “did not receive notice of the Court ’ s action until after close of business” then “fairness would dictate” that he could start the calculation for her fifteen

- day due date on the following business day , Monday December 21, 2015 , and that fifteen days from December 21 st was January 5, 2016, thereby making his notice of appeal “timely[.]” Id. at 2. Hazelwood alternatively argued that this Court should consider the merits of his interlocutory appeal despite the admittedly

one - day late filing of his notice of appeal.

[10] On July 5, 2016, our Court ’ s motions panel denied the State ’ s motion to dismiss but was divided on its ruling . (Kirsch, Brown, JJ., concur, Sharpnack,
Sr. J., diss ents). Thereafter, the State filed its Appellee ’ s Brief and raised cross

appeal issues. In relevant part, the State re - raised its motion to dismiss Hazelwood’s appeal.


### Decision

[11] As part of its cross

- appeal, the State argues that Hazelwood has forfeite d his right to pursue this interlocutory appeal by filing an untimely notice of appeal , and it contends that there are no compelling extraordinary circumstances to excuse this forfeiture.Court of Appeals of Indiana | Memorandum Decision 82A01

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[12] In response to the State ’ s cross - appeal argument, Hazelwood contends that our motion panel ’ s decision is now “law of the case” that cannot be reviewed

. ( Hazelwood’s Reply Br. 6). We disagree.

[13] A lthough our motions panel has already ruled on the State ’ s motion to dismiss,

“ [i] t is well established that we may reconsider a ruling by our motions panel.”
Wise v. State , 997 N.E.2d 411, 413 (Ind. Ct. App. 2013). “This court, while reluctant to overrule orders issued by the motions panel, does have inherent authority to reconsider a ny decision while an appeal remains pending.” Estate of Mayer v. Lax, Inc. , 998 N.E.2d 238, 245 (Ind. Ct. App. 2013) (citing Simon v.
Simon , 957 N.E.2d 980, 987 (Ind. Ct. App. 2011)) , trans. denied

.

[14] Here, Hazelwood has attempted to bring this appeal as a discretionary interlocutory appeal. Accordingly, Appellate Rule 14(B) applies and sets for th the procedure to be followed for initiating such an appeal. The part of this procedure that is at issue here is the requirement that Hazelwood was to file his notice of appeal “within fifteen (15) days” of our Court ’ s “order accepting jurisdiction over the interlocutory appeal.” App. R. 14(B)(3).

[15] Our Court issued its order accepting jurisdiction over this discretionary interlocutory appeal on December 18, 201 5, and the order specified that Hazelwood was required to comply with Appellate Rule 14(B)(3). Based on the date of the order, Hazelwood’s notice of appeal was due on or before January 4,Court of Appeals of Indiana | Memorandum Decision 82A01

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2016. 10 See App. R. 14(B)(3). Hazelwood filed his notice of appeal one day late on January 5, 2016.

[16] Appellate Rule 9( A )(5) provides that “unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited[.]” O ur supreme court , however, has explained that an appellate court may restore a right of appeal that has been forfeited if there are “extraordinarily compelling reasons to do so.” In re Adoption of O.R. , 16 N.E.3d 965, 971 (Ind. 2014).

[17] In O.R. , our supreme court concluded that, in an appeal of a father seeking to challenge the ad option of his child, there were extraordinarily compelling

reasons that existed to restore the father’s forfeited right to appeal

. Id. at 972. In so finding, the O.R. Court cited to: (1) Appellate Rule 1, which provides that

our Court may permit deviati on from the Appellate Rules; (2) the father ’ s timely attempt to initiate an appeal before the deadline for filing his notice of appeal; and (3) the parent

- child relationship as a fundamental liberty interest and one of the most valued relationship of our c ulture. Id. Although not specifically enunciated by the O.R. Court, implicit in the Court ’ s finding of extraordinarily compelling reasons was the fact that the father would have been forever precluded from appeal ing the trial court ’ s adoption order

.

10 As explained above, fifteen days from December 18, 2015 was Saturday January 2, 2016, but, because that d ay was a non - business day, the due date for the notice of appeal was Monday January 4, 2016.Court of Appeals of Indiana | Memorandum Decision 82A01

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[18] Here, however, Hazelwood is attempting to file a dis cretionary interlocutory appeal; therefore, he is not forever precluded from appeal ing the trial court ’ s ruling on his motion to suppress. Indeed, Hazelwood would be able to appeal the trial court ’ s ruli ng on his suppression motion following a conviction and timely trial object ion to the admission of the challenged evidence

. See Danner v.
State , 931 N.E.2d 421, 426 (Ind. Ct. App. 2010) (explaining that “[w]here a defendant does not perfect an interlocutory appeal from a trial court ’ s ruling on a motion to suppress, but objects to the admission of the evidence at trial, the issue on appeal is . . . framed as whether the trial court abused its discretion by admitting the evidence at trial”), tran s. denied

. Thus, we find no extraordinary compelling reasons to restore Hazelwood’s forfeited right to this discretionary interlocutory appeal , and we dismiss the appeal. See Blinn v. Dyer , 19 N.E.3d 821, 822 (Ind. Ct. App. 2014) (explaining that “ while we may waive t he apparent Appellate Rule 9(A) ’ s forfeiture requirement, we need not do so ”)

. Cf. Morales v. State , 19 N.E.3d 292 (Ind. Ct. App. 2014) ( reviewing the appeal of a pro se post

- conviction petitioner who filed his notice of appeal one day late where he could have petitioned for rehearing to show timely compliance with the notice of appeal filing requirement under the prison mailbox rule), trans. denied

.

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[20] Dismissed. 11

B radford, J., and Altice, J., concur

.

11 Our decision to dismiss this appeal should not be construed to reflect our position on the merits of the issues raised in the parties ’ appellate briefs.