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Thursday, September 13, 2012

Ind. Decisions - More on use of the Davis-Hatton procedure

Updating last evening's ILB post, Plainfield criminal defense attorney Cara Wieneke explains that there are at least two reasons why an appellant may decide to pursue the Davis-Hatton procedure:

The most obvious reason, at least in my experience, for filing a Davis-Hatton petition is when the appellate attorney finds there is a strong post-conviction claim that is much more likely to provide relief than the appellate claims will. By employing the Davis-Hatton procedure, an appellant can seek relief quicker than if he waited for his case to move through the appellate process. The Charlie White case may be a good example of this. If White's appellate attorney felt that serious errors were made at trial but that trial counsel failed to properly preserve those errors for appeal, the Davis-Hatton procedure would allow White to return to the trial court and challenge the errors through an ineffective assistance of counsel claim.

Another reason why appellants may sometimes choose to file a Davis-Hatton petition is to supplement the record with additional information. The Kindred case may be a good example of this. By returning to the trial court and litigating his post-conviction claims, Kindred also supplemented the record for his direct appeal claims. Even though the Court's consideration of the direct appeal claims should be the same whether decided during a normal direct appeal or during a combined direct appeal/post-conviction appeal, one has to wonder if the additional information provided through the post-conviction hearing does not in some way bear favorably upon the original direct appeal issues.

The ILB asked Ms. Wieneke whether the emergency petition to stay the direct appeal would cite instances where the trial attorney was claimed to be ineffective. The response:
Yes, the emergency petition would likely include at least some instances of ineffectiveness because the petitioner has to show that judicial economy will be promoted by remand. Usually I do that through laying out exactly what my claims on post-conviction will be.

Posted by Marcia Oddi on September 13, 2012 09:08 AM
Posted to Ind. App.Ct. Decisions