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Justices: Belated appeals rule doesn’t apply to probation revocations

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The Indiana Supreme Court has put its stamp of approval on an intermediate appellate panel’s ruling last year, finding that the state’s existing Post-Conviction Rule 2 that allows for belated appeals on certain criminal cases doesn’t apply to probation revocations.

In a two-page per curiam opinion in Edward Dawson v. State of Indiana, No. 49S02-1103-CR-176, the justices unanimously granted transfer on a Marion County case the Indiana Court of Appeals had decided Dec. 17, 2010.

Marion Superior Judge Robert Altice had imposed an eight-year suspended sentence with three years probation for the defendant, who’d pleaded guilty to conspiracy to commit robbery and carrying a handgun without a license. The judge later revoked his probation and sentenced him to six years after a probation violation, but he didn’t file a motion to correct error or any appeal notice within 30 days as required. Dawson said he later learned generally about his right to appeal after meeting a law clerk with the Indiana Youth Center, and eight months following the revocation order he asked for a belated appeal. Judge Altice allowed it “outright” and permitted a hearing, but confirmed the six-year sanction he’d ordered.

The Court of Appeals found that Post-Conviction Rule 2 is not available for belated appeals of probation revocation orders and dismissed the appeal, and now the justices have affirmed that decision.

“We agree with the Court of Appeals’ analysis that the sanction imposed when probation is revoked does not qualify as a ‘sentence’ under the Rule, and therefore Dawson is not an ‘eligible defendant,’” the per curiam opinion reads. ”Accordingly, we grant transfer and adopt and incorporate by reference the opinion of the Court of Appeals under Appellate Rule 58(A)(1).”

This is the first time the state’s highest court has explicitly determined whether and to what extent Post-Conviction Rule 2 applies to probation revocation orders, either by opinion or rule amendment even after the intermediate appellate court had decided that matter in Glover v. State, 684 N.E.2d 542, 543 (Ind. Ct. App. 1997).

Justices addressed PCR 2 and probation revocation hearings in Cooper v. State, 917 N.E.2d 667, 673 (Ind. 2009), but the court ruled that because Cooper didn’t petition for permission to file a belated notice of appeal, the case wasn’t an appropriate vehicle to resolve the question of whether probation revocation orders are appealable under PCR 2.

That question is now resolved.

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  1. Is it possible to amend an order for child support due to false paternity?

  2. He did not have an "unlicensed handgun" in his pocket. Firearms are not licensed in Indiana. He apparently possessed a handgun without a license to carry, but it's not the handgun that is licensed (or registered).

  3. Once again, Indiana's legislature proves how friendly it is to monopolies. This latest bill by Hershman demonstrates the lengths Indiana's representatives are willing to go to put big business's (especially utilities') interests above those of everyday working people. Maassal argues that if the technology (solar) is so good, it will be able to compete on its own. Too bad he doesn't feel the same way about the industries he represents. Instead, he wants to cut the small credit consumers get for using solar in order to "add a 'level of certainty'" to his industry. I haven't heard of or seen such a blatant money-grab by an industry since the days when our federal, state, and local governments were run by the railroad. Senator Hershman's constituents should remember this bill the next time he runs for office, and they should penalize him accordingly.

  4. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  5. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

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