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Man convicted in 1963 of murder not diligent in pursuing appeal

June 25, 2013

The Indiana Court of Appeals has denied George Cole’s petition for permission to file a belated notice of appeal following his 1963 murder conviction of a cab driver in Indianapolis and life sentence.

Cole agreed to plead guilty to the killing as second degree murder but later sought to withdraw his plea, which was denied. In 1969, he filed a petition for post-conviction relief, which was denied. In 1971, Cole escaped from prison and wasn’t caught until 2001. Then, he filed several petitions and motions but none sought permission to file a belated notice of appeal.

Cole claims he didn’t learn that he could seek permission to file a belated appeal until April 2012, when he filed his petition. The trial court determined Cole wasn’t credible in claiming he had just learned of the possibility of filing a belated notice of appeal and denied his petition.

In George Cole v. State of Indiana, 29A02-1301-CR-4, Cole maintained he was diligent because he pursued the petition as soon as he learned from a fellow inmate that he could do so. He also points to his numerous other filings to demonstrate that he would have pursued the belated appeal had he known of the option.

“However, the trial court explicitly found that Cole was not credible in claiming he had just learned of the possibility of filing a belated notice of appeal. We may not disturb that credibility determination on appeal,” Senior Judge Betty Barteau wrote.

“Given that the trial court did not believe Cole’s claim as well as the fact that nearly five decades had passed from the time of his conviction until he finally sought an appeal under Post-Conviction Rule 2, we cannot say the court abused its discretion by concluding Cole was not diligent in pursuing permission to file a belated notice of appeal and by thus denying his petition for permission to file a belated notice of appeal.”

 

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