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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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