Monday, December 22, 2008
Ind. Decisions - Supreme Court decides one today
In Abjul K. Johnson v. State of Indiana, a 4-page, 5-0 opinion, Justice Sullivan writes:
In its unpublished opinion affirming the trial court, the Court of Appeals relied primarily on our opinion in Moshenek v. State, 868 N.E.2d 419 (Ind. 2007). Like Johnson, Moshenek sought permission to file a belated direct appeal under P-C.R. 2 after having had a petition for post-conviction relief under P-C.R. 1 pending for an extended period of time. We held that Moshenek had not demonstrated the requisite diligence to warrant a belated appeal. Id. at 424. But Johnson’s situation differs from Moshenek’s in a crucial and dispositive way. Whereas Johnson’s P-C.R. 1 proceeding explicitly challenged his sentence, Moshenek’s P-C.R. 1 petition did not. In fact, Moshenek waited more than 16 years — from sentencing in 1989 until the filing of his P-C.R. 2 petition in 2005 — without challenging his sentence in any way. Johnson, by contrast, filed his P-C.R. 1 petition less than three years after sentencing. * * *
But we think it would be unfair to use Moshenek to deny Johnson permission to file a belated appeal here. Johnson’s P-C.R. 1 petition explicitly challenging his sentence was filed within a reasonable period of time under pre-Collins practice. And once the procedures for challenging a sentence imposed following an open plea were made clear in Kling, Johnson acted almost immediately to follow its dictates. * * *
We grant transfer and remand this case to the trial court with instructions to enter a final judgment granting Johnson’s petition for permission to file a belated appeal. Johnson’s petition did not include a proposed notice of appeal as an exhibit. Accordingly, the time for filing a notice of appeal is governed by Appellate Rule 9(A).
Posted by Marcia Oddi on December 22, 2008 02:24 PM
Posted to Ind. Sup.Ct. Decisions