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. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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