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Justices rule on Post-Conviction Rule 2

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The Indiana Supreme Court was divided in two ways in a case involving Indiana Post-Conviction Rule 2: on what standard to use to judge the performance of PCR 2 counsel and whether a defendant should be allowed to appeal the denial of his petition to file a belated direct appeal.

In Antoine Hill v. State of Indiana, No. 45S03-1105-PC-283, Antoine Hill’s attorney, Tasha Reed, filed a PCR 2 petition, asking permission to file a belated notice of appeal of Hill’s 52-year sentence following a guilty plea. The trial court denied permission and Reed did not timely appeal the denial. Through a different counsel, Hill filed a PCR 1 petition, alleging that Reed was ineffective for not timely appealing the denial of permission to file a belated notice of appeal. The trial court denied the petition, concluding that Hill couldn’t satisfy the ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

The Indiana Court of Appeals reversed and ordered the trial court to grant the PCR 1 petition so Hill could appeal the denial of his PCR petition. The COA also used the standard set forth in Baum v. State, 533 N.E.2d 1200 (Ind. 1989), to hold that Reed’s performance prevented Hill from appealing the PCR 2 petition denial.

Chief Justice Randall T. Shepard and Justices Brent Dickson, Robert Rucker and Steven David – who authored the majority opinion – agreed that the attorney performance standard from Baum should be used to judge the performance of a PCR 2 counsel. Shepard, David and Dickson held that Reed in this case didn’t violate Baum because she represented Hill in a procedurally fair setting which resulted in a judgment of the court.

Rucker dissented on this point, agreeing with the COA decision that would allow Hill to appeal the denial of his petition to file a belated appeal.

Justice Frank Sullivan concurred in result with the majority in affirming the denial of Hill’s PCR 1 petition, but wrote separately to dissent from the standard used by the other justices. He is in favor of using the standard outlined in Strickland.

 

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  1. 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

  2. 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!

  3. 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.

  4. 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.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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