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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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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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