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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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