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PCR 2 not available for probation revocation orders

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Post-Conviction Rule 2 is not available for belated appeals of probation revocation orders, the Indiana Court of Appeals concluded.

The trial court allowed Edward Dawson leave to file a belated notice of appeal of the order revoking his probation. Dawson didn’t file a motion to correct error or a notice of appeal within 30 days of his revocation.

The Indiana Supreme Court addressed Post-Conviction Rule 2 and probation revocation hearings in Cooper v. State, 917 N.E.2d 667, 673 (Ind. 2009), in which Cooper didn’t petition for permission to file a belated notice of appeal, but later asked the court to reconsider its revocation decision. The justices ruled 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.

In Edward Dawson v. State of Indiana, No. 49A02-1001-CR-155, the appellate judges delved into the history of PCR 2 and agreed with the state that Dawson isn’t an eligible defendant under the rule.

The issue in the instant case is whether the imposition of the sanction for revoking his probation qualifies as a sentence under PCR 2. The rule defines eligible defendants as those who possessed the right but failed to file a timely direct appeal of a conviction or sentence after a trial or guilty plea.

“We are not unsympathetic to the policy considerations attendant to permitting belated appeals of probation revocation orders where the diligence and fault criteria are met. Nevertheless, the Indiana Supreme Court has strictly construed Post-Conviction Rule 2 in Howard and Greer, and continues to limit its reach,” wrote Judge L. Mark Bailey.

Although the Indiana Supreme Court has never explicitly determined whether and to what extent Post-Conviction Rule 2 applies to probation revocation orders, the Court of Appeals decided that matter in Glover v. State, 684 N.E.2d 542, 543 (Ind. Ct. App. 1997), and the Indiana Supreme Court has never superseded that opinion by Rule amendment, he continued.  

Judge Bailey noted the appellate court is aware of the need for clarification and welcomes it, but the current rendering of PCR 2 doesn’t include probation revocation orders. They dismissed the appeal.

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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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