« Courts - More on: The use of legislative history in interpreting statutes | Main | Ind. Gov't. - "Going private keeps taking its toll" »

Friday, October 03, 2014

Ind. Courts - Effective Jan. 1, 2014, App. Rule 9 requires that all notices of appeal be filed with the Appellate Clerk; otherwise, the appeal is untimely

Cara Wieneke, a central Indiana attorney who does many criminal appeals, wrote the ILB this morning to say:

I just received either my 4th or 5th belated appeal of the year. Notices filed, but in the wrong court on all of them.
In response to my request for more details, she responded:
Any party wishing to appeal from a trial court’s adverse judgment has 30 days to file a notice of appeal. Until this year, the notice of appeal was filed in the trial court. But effective January 1st, 2014, Indiana Appellate Rule 9 requires that all notices of appeal be filed with the Appellate Clerk; otherwise, the appeal is untimely.

This rule change did not come about suddenly. Rather, attorneys were given a two-year grace period to comply with the change.

Most of my practice involves criminal appeals involving indigent defendants. Despite a two-year notice of the rule change, many attorneys (even regularly-appointed pauper counsel and public defenders) are still filing the notice of appeal in the trial court. In fact, I currently have 4-5 active appellate cases where court-appointed counsel filed the notice of appeal in the wrong court, thereby forfeiting the defendant’s right to appeal.

True, Indiana Post-Conviction Rule 2 can provide a remedy for these defendants. But the process requires additional steps to be taken (costing taxpayers more money for the additional attorney time), and there is no guarantee the defendant will be given an opportunity to file a belated notice of appeal. In those cases where the defendant is serving a relatively short sentence, requiring the defendant to first seek permission to file a belated notice of appeal almost ensures that he will have completed his sentence before the appeal is decided.

It is apparent that the training on the changes to Indiana Appellate Rule 9 was either inadequate or was lacking altogether. Additional training is definitely needed to ensure that criminal defense attorneys understand how and where to properly file the notice of appeal.

Posted by Marcia Oddi on October 3, 2014 10:15 AM
Posted to Indiana Courts