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Judges affirm denial of post-conviction relief

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The Indiana Court of Appeals upheld the denial of a man’s petition for post-conviction relief claiming ineffective assistance of trial and appellate counsel. The man failed to introduce the original trial transcript at his post-conviction hearing and the post-conviction court didn’t take judicial notice of the record, as it’s now able to do under an amended Indiana Evidence Rule.

Larry Mitchell pro se challenged the denial of his petition for post-conviction relief following his convictions of felony murder, robbery, and related offenses. While he sought relief on claims of ineffective assistance of trial and appellate counsel, he never offered the original transcript into evidence at the post-conviction hearing. Mitchell also didn’t ask the judge to take notice of the original transcript, which is allowed under Indiana Evidence Rule 201(b)(5), effective Jan. 1, 2010.

This amendment allows courts to judicially notice records beyond those in the cases before them, the Court of Appeals has ruled in recent cases involving the rule amendment. Before the amendment, a post-conviction court couldn’t take judicial notice of the original proceedings absent an exceptional situation.

“Accordingly, we understand amended Evidence Rule 201(b)(5) to allow a post-conviction court to judicially notice the transcript of the evidence from the petitioner’s underlying criminal proceedings to appraise counsel’s performance and evaluate claims of ineffective assistance,” wrote Judge Nancy Vaidik in Larry D. Mitchell v. State of Indiana, No. 49A02-1003-CR-340.  

But Mitchell never asked the court to take judicial notice of the record any time before the court’s Feb. 8, 2010, order that denied relief. In addition, the court didn’t judicially notice the record sua sponte, so the trial record was never before the post-conviction court for consideration. His claims of ineffective assistance of counsel were fact-sensitive allegations that required examination of the trial record, Judge Vaidik continued.

The judges also held the post-conviction court didn’t error by issuing its judgment denying relief before Mitchell’s deadline for submitting proposed findings of fact and conclusions of law, and the court didn’t err in denying his motion to withdraw his petition of post-conviction relief without prejudice.

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  1. Oh, the name calling was not name calling, it was merely social commentary making this point, which is on the minds of many, as an aside to the article's focus: https://answers.yahoo.com/question/index?qid=20100111082327AAmlmMa Or, if you prefer a local angle, I give you exhibit A in that analysis of viva la difference: http://fox59.com/2015/03/16/moed-appears-on-house-floor-says-hes-not-resigning/

  2. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  3. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  4. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  5. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

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