COA tosses belated probation revocation appeal

Indiana Supreme Court rulings do not permit a belated appeal of a probation revocation, the Indiana Court of Appeals held in dismissing a man’s appeal in such a case Thursday.

James D. Cummings’ probation was revoked in November 2018 after he had pleaded guilty a year earlier to Level 6 felony counts of resisting law enforcement and theft in separate cases. He failed to submit to drug screens and missed an appointment with his probation officer, then pleaded guilty to a separate Level 6 felony resisting charge, resulting in the revocation of his probation. He was ordered to serve suspended sentences in three cases in the Department of Correction.

In March, Cummings was granted permission to file a belated appeal of the revocation pursuant to Post-Conviction Rule 2, but the state filed a motion to dismiss, citing Dawson v. State, 943 N.E.2d 1281, 1281-82 (Ind. 2011),  which bars belated probation revocation appeals.

“The Indiana Supreme Court has concluded that the sanction imposed when probation is revoked does not qualify as a ‘sentence’ under Post-Conviction Rule 2,” Judge Rudolph Pyle III wrote for the panel.  … “Therefore, Cummings is not an ‘eligible defendant’ under the rule.

“Because belated appeals from orders revoking probation are not available pursuant to Post-Conviction Rule 2, this matter is not properly before us due to the lack of a timely notice of appeal.”

In a footnote, the court noted that per In re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014), an appellate court may restore a right of appeal from an untimely notice of appeal where there are “’extraordinarily compelling reasons to do so.’ … Here, we find no such extraordinarily compelling reasons.”

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