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COA upholds denial of fugitive's request to file an appeal

April 19, 2012

A woman convicted of murdering her husband in the 1970s who escaped from prison and remained a fugitive for 35 years isn’t entitled to file a petition for belated appeal because her willful act of fleeing prevented her attorney from pursuing the appeal.

Linda G. Darby was convicted of killing her husband in 1970 and sentenced to life imprisonment. She filed a motion to correct error Nov. 28, 1970, which was denied. She was appointed counsel but no appeal was ever filed. She escaped from prison in 1972 and was apprehended in Tennessee in 2007. In 2011, she filed a petition to file a belated notice of appeal, which the trial court denied without a hearing.

Darby claimed that even though she fled the state, that didn’t relinquish her right to appeal. The Court of Appeals disagreed, citing Evolga v. State, 519 N.E.2d 532, 533 (Ind. 1988), and Prater v. State, 459 N.E.2d 39, 41 (Ind. 1984). It’s well settled in Indiana that when someone escapes from lawful custody, he isn’t entitled during the period he remains a fugitive to prosecute his appeal, noted Judge Carr Darden.

“In short, Darby’s counsel was prevented from pursuing Darby’s appeal by her willful act of fleeing the jurisdiction,” he wrote in Linda G. Darby v. State of Indiana, No. 45A04-1106-CR-318.

 

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