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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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