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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. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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