ILNews

Supreme Court rules on belated appeals

Jennifer Nelson
January 1, 2008
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The Indiana Supreme Court granted transfer Thursday to two cases dealing with belated appeals.

The high court granted transfer with opinion in Demond Hughes v. State of Indiana, No. 49S04-0802-CR-86. At issue was whether Hughes was allowed to file a belated appeal to challenge the appropriateness of his 40-year concurrent sentence. Hughes pleaded guilty to felony murder and Class A misdemeanor reckless possession of a handgun. Initially, the trial court sentenced Hughes to a 50-year concurrent sentence, with five years suspended. Hughes later obtained post-conviction relief reducing his sentence to 40 years - and retaining the five-year suspension - because the correct presumptive sentence for the date of the offense was 40 years. Hughes had filed for relief because he held the trial court didn't correctly weigh the aggravating and mitigating factors.

Six years after his sentence was reduced, Hughes filed a request to commence a belated appeal because he wanted his sentence reviewed for appropriateness "upon learning of his appellate rights." The trial court granted his motion, ruling Hughes had been diligent in seeking relief.

However, Hughes' belated appeal is moot because at his guilty-plea hearing, he was advised he gave up the right to direct appeal and the sentence was modified because the presumptive sentence should have been 40 years, wrote Justice Brent Dickson.

In his current appeal, Hughes is trying to relitigate the issue of the trial court not identifying all of the mitigating and aggravating factors in order to sentence him. The Supreme Court affirms the sentence imposed by the trial court after Hughes' post-conviction relief because his claim is barred by procedural default - a defendant may not by belated appeal religitate a sentence challenged previously in post-conviction relief, wrote Justice Dickson.

The Supreme Court also granted transfer and a remand by order in David Ohm v. State of Indiana, No. 79A02-0712-CR-336. The Supreme Court granted transfer to decide whether the Court of Appeals properly dismissed a belated appeal initiated by Ohm. Ohm pleaded guilty to two counts of murder in an open plea agreement and was sentenced to a term of 60 years executed. Sixteen years later, Ohm argued his enhanced sentence was improper and was granted permission by the trial court to file a belated notice of appeal pursuant to Indiana Post-Conviction Rule 2(1).

The Court of Appeals determined that Ohm had not been diligent in pursing the belated appeal and dismissed it without addressing the merits of his arguments relating to his sentence.

In the order authored by Chief Justice Randall T. Shepard, the high court vacated the Court of Appeals opinion and remanded to the appellate court for consideration on the merits of Ohm's appellate arguments.

"Considering particular circumstances of this case, which include that the State did not object to the belated appeal, the appeal was fully briefed on the merits, and Ohm did not have any reason to brief the issue of whether the trial court abused its discretion, we believe consideration of the merits of this direct appeal by the Court of Appeals is appropriate," Chief Justice Shepard wrote.
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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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