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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 App. 1997), and the Indiana Supreme Court has never superseded that opinion by Rule amendment, he continued.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. My daughters' kids was removed from the home in March 2015, she has been in total compliance with the requirements of cps, she is going to court on the 4th of August. Cps had called the first team meeting last Monday to inform her that she was not in compliance, by not attending home based therapy, which is done normally with the children in the home, and now they are recommending her to have a psych evaluation, and they are also recommending that the children not be returned to the home. This is all bull hockey. In this so called team meeting which I did attend for the best interest of my child and grandbabies, I learned that no matter how much she does that cps is not trying to return the children and the concerns my daughter has is not important to cps, they only told her that she is to do as they say and not to resist or her rights will be terminated. I cant not believe the way Cps treats people knowing if they threaten you with loosing your kids you will do anything to get them back. My daughter is drug free she has never put her hands on any of her children she does not scream at her babies at all, but she is only allowed to see her kids 6 hours a week and someone has to supervise. Lets all tske a stand against the child protection services. THEY CAN NO LONGER TAKE CHILDREN FROM THERE PARENTS.

  2. Planned Parenthood has the government so trained . . .

  3. In a related story, an undercover video team released this footage of the government's search of the Planned Parenthood facilities. https://www.youtube.com/watch?v=ZXVN7QJ8m88

  4. Here is an excellent movie for those wanting some historical context, as well as encouragement to stand against dominant political forces and knaves who carry the staves of governance to enforce said dominance: http://www.copperheadthemovie.com/

  5. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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