Judges divided over whether man can belatedly appeal infraction

April 9, 2015
The majority on the Indiana Court of Appeals concluded that a man challenging a traffic infraction could challenge it on belated appeal, but the dissenting judge believed broadening the post-conviction rules would put additional strain on limited judicial resources.
Terrence Strong was convicted of Class A misdemeanor operating while intoxicated, Class C misdemeanor operating a vehicle with an alcohol concentration between 0.08 and 0.15 grams of alcohol per 100 milliliters of blood, and Class C infraction failing to stop at a stop sign. Strong pulled out in front of an Indianapolis police officer without stopping at a stop sign and then improperly changed lanes, almost causing a collision with the officer. 
He was convicted in July 2013 and ordered to pay a fine in connection with the traffic infraction, but it wasn’t until March 2014 that Strong attempted to appeal his infraction and fine based on double jeopardy concerns. He filed permission to file a belated notice of appeal, which was granted after the court determined Strong was never informed by his attorney or the trial court that he could appeal. But then his file was lost within the appellate division of the Marion County Public Defender Agency, and he was granted a second motion to file belated notice of appeal. 
Belated notice of appeal is allowed under Ind. Post-Conviction Rule 2. The state in Terrence Strong v. State of Indiana, 49A02-1406-CR-412, claimed that Strong does not qualify as an “eligible defendant” under the rule because he is challenging a civil penalty. But Judge Margret Robb pointed out Strong’s case as a whole was designated as a criminal misdemeanor case because in addition to the infraction, he was charged with misdemeanors. In addition, the relief he requests is allegedly as a result of both the misdemeanor convictions and his traffic infraction, Robb wrote. 
She also noted that Appellate Rule 2(G) defines Criminal Appeals to include criminal misdemeanor and infraction cases. But, even though he may challenge his traffic infraction, his argument failed on appeal. The majority found different evidence was used to support the traffic infraction and the OWI convictions. 
Judge L. Mark Bailey agreed in a separate opinion with the state that post-conviction rules do not allow Strong to challenge his fine on belated appeal and dismissal of his appeal is appropriate. 
“As the majority has observed, the trial court was unaware of the issue upon which the post-conviction petition would proceed. But when presented to this Court, it is clear that the only issue upon which the petitioner can be afforded relief involves a civil infraction. Broadening the post-conviction rules by judicial fiat will foster belated collateral challenges to any infraction, undermine the principle of finality, and increase strain upon limited judicial resources,” he wrote.

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