ILNews

Supreme Court rules on belated appeals

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

ADVERTISEMENT