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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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