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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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