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Justices uphold probation revocation

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The Indiana Supreme Court disagreed with the Indiana Court of Appeals that the appellate court could review a defendant's appeal - either because it qualified as a rare and exceptional case of great public interest or under Post-Conviction Rule 2. The Supreme Court deemed the man's failure to timely file an appeal to the revocation of his probation as fatal to his claim.

In Cornelius Cooper v. State of Indiana, No. 49S02-0904-CR-135, Cornelius Cooper appealed the original order revoking his probation after his motion to reconsider was denied. Cooper was arrested and charged following a domestic dispute with his wife. No witnesses or evidence were introduced at his probation revocation hearing. Cooper believed that if the charges were dropped, he would be put back on probation, so he didn't appeal the revocation of his probation.

After the charges were dismissed, the court held a hearing on Cooper's motion to reconsider. The trial court denied it based on the evidence presented surrounding the incident with his wife.

Cooper appealed, claiming the trial court violated his due process by revoking his probation without allowing him to present witnesses, cross examine, or be heard; and the reconsideration hearing didn't cure the violation because the trial court impermissibly shifted the state's burden of proof to him.

It's abundantly clear that Cooper wasn't afforded even a minimal amount of due process, wrote Justice Robert Rucker for the majority. But Cooper chose not to appeal the decision to revoke his probation and instead waited until the charges were dropped to bring his claim.

By not filing a notice of appeal within 30 days, Cooper forfeited his right to challenge on appeal the order revoking his probation except as provided by PCR 2, wrote the justice.

The Court of Appeals was split on why it should address the merits of Cooper's claims - the majority believed it was of great public interest and Judge Nancy Vaidik thought Cooper's appeal should be considered under PCR 2.

The majority of justices disagreed with Judge Vaidik because PCR 2 is for petitioners when the failure to timely file the notice was not the petitioner's fault and the petitioner was diligent in trying to file notice.

The justices also didn't believe the case qualifies as rare or exceptional to require the court to invoke any discretion it has to entertain the merits of Cooper's probation revocation. The only proper issue before the high court is whether the trial court erred in denying his motion to reconsider.

There was ample evidence before the trial court that Cooper violated the terms of his probation, despite the charges being dropped, so Cooper wasn't prejudiced by the denial, Justice Rucker wrote.

Justice Theodore Boehm dissented without an opinion, in which he agreed with Judge Vaidik's opinion concurring in the result reached by the Court of Appeals.

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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