ILNews

Supreme Court rules on belated appeals

Jennifer Nelson
January 1, 2008
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The Indiana Supreme Court granted transfer Thursday to two cases dealing with belated appeals.

The high court granted transfer with opinion in Demond Hughes v. State of Indiana, No. 49S04-0802-CR-86. At issue was whether Hughes was allowed to file a belated appeal to challenge the appropriateness of his 40-year concurrent sentence. Hughes pleaded guilty to felony murder and Class A misdemeanor reckless possession of a handgun. Initially, the trial court sentenced Hughes to a 50-year concurrent sentence, with five years suspended. Hughes later obtained post-conviction relief reducing his sentence to 40 years - and retaining the five-year suspension - because the correct presumptive sentence for the date of the offense was 40 years. Hughes had filed for relief because he held the trial court didn't correctly weigh the aggravating and mitigating factors.

Six years after his sentence was reduced, Hughes filed a request to commence a belated appeal because he wanted his sentence reviewed for appropriateness "upon learning of his appellate rights." The trial court granted his motion, ruling Hughes had been diligent in seeking relief.

However, Hughes' belated appeal is moot because at his guilty-plea hearing, he was advised he gave up the right to direct appeal and the sentence was modified because the presumptive sentence should have been 40 years, wrote Justice Brent Dickson.

In his current appeal, Hughes is trying to relitigate the issue of the trial court not identifying all of the mitigating and aggravating factors in order to sentence him. The Supreme Court affirms the sentence imposed by the trial court after Hughes' post-conviction relief because his claim is barred by procedural default - a defendant may not by belated appeal religitate a sentence challenged previously in post-conviction relief, wrote Justice Dickson.

The Supreme Court also granted transfer and a remand by order in David Ohm v. State of Indiana, No. 79A02-0712-CR-336. The Supreme Court granted transfer to decide whether the Court of Appeals properly dismissed a belated appeal initiated by Ohm. Ohm pleaded guilty to two counts of murder in an open plea agreement and was sentenced to a term of 60 years executed. Sixteen years later, Ohm argued his enhanced sentence was improper and was granted permission by the trial court to file a belated notice of appeal pursuant to Indiana Post-Conviction Rule 2(1).

The Court of Appeals determined that Ohm had not been diligent in pursing the belated appeal and dismissed it without addressing the merits of his arguments relating to his sentence.

In the order authored by Chief Justice Randall T. Shepard, the high court vacated the Court of Appeals opinion and remanded to the appellate court for consideration on the merits of Ohm's appellate arguments.

"Considering particular circumstances of this case, which include that the State did not object to the belated appeal, the appeal was fully briefed on the merits, and Ohm did not have any reason to brief the issue of whether the trial court abused its discretion, we believe consideration of the merits of this direct appeal by the Court of Appeals is appropriate," Chief Justice Shepard wrote.
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  1. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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