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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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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