KOENIG, Jeffrey, ) Court of Appeals appellant, ) cause no. 49A04-0103-CR-115 v. ) ) Supreme Court STATE OF INDIANA, ) cause no. 49S04-0201-CR-92 appellee. )
On August 29, 1997, appellant was convicted of three counts of robbery and
three counts of criminal confinement. His concurrent six-year sentences on each count
were suspended, except for time already served, and appellant was instead placed on
probation. Appellant did not immediately appeal those convictions.
On April 6, 1999, appellants probation was revoked and he was ordered to
serve the previously suspended sentences. No timely appeal was taken from this
sentencing order either.
On August 21, 2000, appellant filed a
pro se petition seeking post-conviction relief.
The petition alleged, among other things, that appellant was denied a right
to counsel. In support of that contention, appellant asserted that he wanted
to appeal the revocation of probation, but that the trial court had failed
to appoint pauper counsel for him. The State of Indiana, through the
Marion County Prosecutor, filed an answer to the petition. In its answer,
the State asserted that the petition should be dismissed because appellant had failed
to exhaust his appellate remedies. Specifically, the State asserted that appellants remedy
was to seek leave to file a belated appeal of the underlying convictions,
as procedurally authorized by Post-Conviction Rule 2, section 1. See Appendix, pp.
124-25 (States Answer). The petition seeking post-conviction relief was denied.
Thereafter, on March 7, 2001, the Marion County Public Defender Agency did what
the State had argued should have been done it filed on behalf
of the appellant a motion seeking leave to file a belated notice of
appeal from the underlying convictions. No objection was made by the State
and the trial court granted that motion. This appeal ensued.
Ultimately, a brief of the appellant was filed on August 13, 2001.
The claims of error were directed to the underlying robbery and confinement convictions,
not to the revocation of probation. In response, the State of Indiana,
through its Attorney General, filed a motion to dismiss the appeal. The
State asserted that appellant had not been diligent in requesting an appeal from
the underlying conviction, as required by Post-Conviction Rule 2, section 1(b). The
Court of Appeals granted the motion and dismissed the appeal. The appellant
filed a petition seeking transfer of jurisdiction in accordance with Appellate Rules 56(B)
Evidence exists that would support a determination that appellant was not diligent in
pursuing an appeal of the underlying convictions and sentencing. Appellants principal interest
seemed to be appealing the order revoking his probation. Had the State
made that argument in the trial court, perhaps the trial judge would also
have agreed that the requirements of Post-Conviction Rule 2 had not been met.
But in response to the appellants petition seeking post-conviction relief, the State expressly
argued to the trial court that appellants remedy was to file a motion
seeking leave to file a belated appeal of the underlying judgment. When
appellant took the action invited by the State, no objection was made to
that motion. The trial court then granted the appellant leave to file
a late notice of appeal. A transcript was prepared by the court
reporter. Counsel reviewed the record, formulated issues, and prepared and filed an
appendix and a brief. Only then did the State raise, for the first
time, a claim that appellant was not diligent in seeking an appeal of
the convictions and sentence. The Court of Appeals dismissed the appeal on
This result appears to be a significant departure from accepted law and practice.
See Ind. Appellate Rule 57(H)(6). The States inconsistent actions and failure
to object to the motion seeking leave to file a belated notice of
appeal warrant the appeal being reinstated. Accordingly, we grant transfer and remand
the appeal to the Court of Appeals with instructions to vacate its order
granting the States motion to dismiss, to deny the motion, and to establish
a briefing schedule for review of the appeal on the merits.
The Clerk is directed to send a copy of this order to Hon. Sanford M. Brook, Chief Judge of the Court of Appeals; to Steve Lancaster, Court of Appeals Administrator; to Janet Roberts Blue, Commissioner of the Court of Appeals; to Hon. Alex Murphy; to the Attorney General of Indiana; to the Indiana Public Defender; and to all counsel of record.
Done at Indianapolis, Indiana this 30th day of January, 2002.
______________________________ Randall T. Shepard
Chief Justice of Indiana
All Justices concur.