Court of Appeals of Indiana | Memorandum Decision 18A

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- 1602 | February 28, 2019 Page 1 of 4



### 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 PPELLANT , P RO S E Timothy E. Huffman Branchville, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Timothy E. Huffman, Jr., $15,711.48 in Lawful United States Currency , Appellant

- Petitioner ,

v. 

### State of Indiana, ex rel. Evansville

- Vanderburgh County Drug Task Force (15

- 66385) , Appellee

- Respondent. February 28, 2019 Court of Appeals Ca se No. 18A

- MI

- 1602 Appeal from the Vanderburgh Circuit Court The Honorable David D. Kiely, Judge Trial Court Cause No. 82C01

- 1512

- MI

- 6275

Pyle , Judge
.Court of Appeals of Indiana | Memorandum Decision 18A

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- 1602 | February 28, 2019 Page 2 of 4 

### Statement of the Case

[1] Timothy E. Huffman (“Huffman”) , pro se , appeals the denial of his petition for permission to file a belated notice of appeal. He argues that the trial court abused its discretion when it denied his petition. Finding no abuse of the trial court’s discreti on, we affirm the denial of Huffman’s petition. 1

[2] We affirm.



### Issue

Whether the trial court abused its discretion in denying Huffman’s petition for permission to file a belated notice of appeal.



### Facts

[3] In December 2015, the State filed a complaint for forfeit ure that alleged Huffman had been arrested for dealing methamphetamine, possession of a firearm by a serious violent felon, resisting law enforcement with a weapon, and possession of marijuana. At the time of the arrest, $15,711.48 had been found

on or ne ar Huffman. The complaint alleged that the money was subject to forfeiture pursuant to statute. In September 2017, the trial court issued an agreed judgment entry, which provided that the State and Huffman, by counsel, had agreed that Huffman would forfe it $14,711.48 to the State and that the

1 Because we affirm the trial court’s denial of Huffman’s petition for permission to file a belated appeal, we do not address the substantive issue that Huffman attempts to raise

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State would return $1,000.00 to Huffman’s counsel. In June 2018, Huffman filed a petition for permission to file a belated appeal pursuant to Post

Conviction Rule 2 ( 1) . The trial court denied the petition, and Huff man now appeals.


### Decision

[4] At the outset, we note that Huffman proceeds pro se
. A litigant who proceeds

pro se is held to the same rules of procedure that trained counsel is bound to follow. Smith v. Donahue , 907 N.E.2d 553, 555 (Ind. Ct. App. 2009) , t rans. denied

. One risk a litigant takes when he proceeds pro se is that he will not know how to accomplish all the things an attorney would know how to accompli sh. Id. When a party elects to represent himself, there is no reason for us to indulge in any benevolent presumption on his behalf or to waive any rule for the orderly and proper conduct of his appeal

. Foley v. Mannor , 844 N.E.2d 494, 502 (Ind. Ct. App. 2006)

.

[5] We now to turn to Huffman’s argument that the trial court abused its discretion in denying his petition for permission to file a belated appeal. Huffman filed his petition pursuant to Post

- Conviction Rule 2(1), which provides, in relevant part, that an “eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sen tence.” Post

- Conviction Rule 2 defines an “eligible defendant” as “a defendant who, but for the defendant’s failure to do so timely,Court of Appeals of Indiana | Memorandum Decision 18A

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- 1602 | February 28, 2019 Page 4 of 4

would have the right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty [.] ”

[6] Here, howe ver, Huffman was not convicted after a trial or a plea of guilty and he was not attempting to challenge on direct appeal a conviction or sentence. Rather, Huffman was attempting to challenge a n agreed judgment order in a forfeiture action , which is civil in nature. See Mesa v. State , 5 N.E.3d 488, 494 (Ind. Ct. App. 2014), trans. denied

. Huffman is simply not an eligible defendant as contemplated by Post

- Conviction Rule 2(1), and a belated notice of appeal is not available to him. Accordingly, the trial court did not abuse its dis c retion in denying his petition to file a belated notice of appeal

. 2

[7] Affirmed.

[8] Najam, J., and Altice, J., concur.

2 We further note that H uffman’s reliance on Curtis v. State , 981 N.E.2d 625 (Ind. Ct. App. 2013), is misplaced because Curtis concerned the trial court’s denial of a Trial Rule 60(B) motio n , which Huffman has not filed

. In addition, Huffman has failed to set forth any “extraord inarily compelling reasons” to restore his right of appeal from the agreed judgment order

. See In re Adoption of O.R. , 16 N.E.3d 965, 971 (Ind. 2014).