Taylor v. State
2011 Ind. App. LEXIS 15
| Ind. Ct. App. | 2011Background
- Taylor was convicted in 2007 of unlawful possession of a firearm by a serious violent felon (Class B) and unlawful use of body armor (Class D), with a 15-year aggregate sentence.
- Taylor filed a pro se petition for post-conviction relief in 2008, amended in 2009, alleging ineffective assistance of trial and appellate counsel.
- The PCR court denied relief on February 4, 2010, and mailed the order to Taylor at his PCF address; Taylor later moved to address changes and sought copies of the ruling and CCS.
- Taylor alleged he moved from PCF to MCF in 2010 and did not receive subsequent pleadings or orders; at issue was whether he timely received notice of the denial.
- The post-conviction court granted and then denied various motions regarding re-issuance and extensions, with conflicting CCS entries and missing pleadings in the record.
- Taylor filed a belated notice of appeal under Post-Conviction Rule 2, which is not the proper vehicle for belated appeals from PCR decisions; the court ultimately remanded to allow a timely notice of appeal under Trial Rule 72(E).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 2 permits a belated appeal of a PCR denial | Taylor | Taylor cannot use Rule 2 for belated PCR appeals | Rule 2 cannot be used for belated PCR appeals |
| Whether Trial Rule 72(E) relief was available to address lack of notice | Taylor | Record shows notices went to old address; limited relief | TR 72(E) relief was applicable due to lack of notice and address changes |
| Whether the post-conviction court abused its discretion in denying TR 72(E) relief | Taylor | Court properly denied relief given record ambiguities | Court abused its discretion; equitable relief warranted |
| Whether the court should permit a belated notice of appeal under the inherent power | Taylor | Not warranted; extraordinary circumstances lacking | Inherent power authorized remand to allow timely notice of appeal |
| What remedy should follow given extraordinary circumstances | Taylor | Not clear; normal procedures should apply | Remand to accept a timely notice of appeal within 30 days of the opinion |
Key Cases Cited
- Cooper v. State, 917 N.E.2d 667 (Ind. 2009) (Rule 2 belated appeal context for lack of fault and diligence)
- Greer v. State, 685 N.E.2d 700 (Ind. 1997) (amendment to Rule 2 restricted jurisdiction to direct appeals)
- Howard v. State, 653 N.E.2d 1389 (Ind. 1995) (historical use of Rule 2 for non-direct-appeal petitions prior to 1994)
- Collins v. Covenant Mut. Ins. Co., 644 N.E.2d 116 (Ind. 1994) (TR 72(E) relief when clerk-mailed notice not evidenced by CCS)
- Lugar v. State ex rel. Lee, 383 N.E.2d 287 (Ind. 1978) (equitable relief standards for extraordinary circumstances)
- Slay v. Marion County Sheriff's Dep't, 603 N.E.2d 877 (Ind. Ct. App. 1992) (desire to dispose on merits when record allows)
- In re Hawkins, 902 N.E.2d 231 (Ind. 2009) (discipline for failure to organize post-conviction files and timely notice)
- Markle v. Indiana State Teachers Ass'n, 514 N.E.2d 612 (Ind. 1987) (purpose of TR 72(E) relief for nonreceipt of clerk's notice)
- Gable v. Curtis, 673 N.E.2d 805 (Ind. Ct. App. 1996) (when TR 72(E) relief is appropriate due to notice issues)