The Indiana Supreme Court was divided in two ways in a case involving Indiana Post-Conviction Rule 2: on what standard to use to judge the performance of PCR 2 counsel and whether a defendant should be allowed to appeal the denial of his petition to file a belated direct appeal.
In Antoine Hill v. State of Indiana, No. 45S03-1105-PC-283, Antoine Hill’s attorney, Tasha Reed, filed a PCR 2 petition, asking permission to file a belated notice of appeal of Hill’s 52-year sentence following a guilty plea. The trial court denied permission and Reed did not timely appeal the denial. Through a different counsel, Hill filed a PCR 1 petition, alleging that Reed was ineffective for not timely appealing the denial of permission to file a belated notice of appeal. The trial court denied the petition, concluding that Hill couldn’t satisfy the ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
The Indiana Court of Appeals reversed and ordered the trial court to grant the PCR 1 petition so Hill could appeal the denial of his PCR petition. The COA also used the standard set forth in Baum v. State, 533 N.E.2d 1200 (Ind. 1989), to hold that Reed’s performance prevented Hill from appealing the PCR 2 petition denial.
Chief Justice Randall T. Shepard and Justices Brent Dickson, Robert Rucker and Steven David – who authored the majority opinion – agreed that the attorney performance standard from Baum should be used to judge the performance of a PCR 2 counsel. Shepard, David and Dickson held that Reed in this case didn’t violate Baum because she represented Hill in a procedurally fair setting which resulted in a judgment of the court.
Rucker dissented on this point, agreeing with the COA decision that would allow Hill to appeal the denial of his petition to file a belated appeal.
Justice Frank Sullivan concurred in result with the majority in affirming the denial of Hill’s PCR 1 petition, but wrote separately to dissent from the standard used by the other justices. He is in favor of using the standard outlined in Strickland.