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COA disagrees on reason to grant appeal

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The Indiana Court of Appeals unanimously reversed the revocation of a man's probation but disagreed as to the manner in which the appellate court was authorized to do so.

In Cornelius Cooper v. State of Indiana, 49A02-0709-CR-780, Judges Melissa May, Paul Mathias, and Nancy Vaidik reached the same conclusion: that Cornelius Cooper was denied due process at his probation revocation hearing.

Judges May and Mathias believed Cooper's case qualified for appellate review even though he didn't timely appeal his revocation order. These judges believe the case is a matter of great public interest. Judge May wrote the facts of Cooper's case are extraordinary because the trial judge told him he'd go back on probation if he hadn't been convicted of the domestic violence charges on which the probation revocation was based. The domestic violence charges were later dropped. Cooper asked the trial court to reconsider the revocation, which the court denied.

The appellate court wrote the record doesn't reflect Cooper was advised of his right to appeal. The majority believed the fact that Cooper was denied due process was a fundamental error that allowed the Court of Appeals to review Cooper's appeal. The appellate court reversed the denial of his motion to reconsider and remanded for a probation revocation hearing.

Judge Vaidik concurred in result in a separate opinion but made an argument that the appellate court should have reviewed Cooper's appeal under Indiana Post-Conviction Rule 2. She wrote because he wasn't at fault for the belated appeal of his probation revocation and because he had been diligent in pursuing an appeal of the revocation, he's entitled to a belated appeal under Post-Conviction Rule 2.

Judge Vaidik noted the disagreement in the Court of Appeals on whether a probation revocation order is appealable under this rule, but she believes that right exists.

"... we have concluded in the past that the imposition of a modified sentence carries with it the right to belatedly appeal pursuant to Indiana Post-Conviction Rule 2," she wrote. "It makes sense to treat probation revocations similarly for the purpose of allowing belated appeals."

Judge Vaidik also wrote about her concern that by reviewing the merits of an appeal on grounds other than Post-Conviction Rule 2, the appellate court is sending the wrong message to practitioners that the court is prepared to pick up an appeal regardless of its timeliness, without strictly adhering to Post-Conviction Rule 2.

"By ignoring these requirements in some cases, we create arbitrariness in the system, and arbitrariness denies litigants notice of when and how we will apply our own rules," she wrote.

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  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

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  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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