*1 Finding аt 174. there was no rea- home, generally are windows grown in respond suspicion, we noted: plants that the sonable covered so the growers and to hide lights used the did not observe the police Litchfield people from the view of lights plants conditioning home for excessive air or the The Rotzes asked outside the home. ventilation, did not observe whether win- home, and the trial to view their trial court cоverings lighting, hid excessive dow did findings that its view of noted in its court investigate utility not the Litchfields’ us- Trooper with premises the was consistent not Litch- age, investigate and did the have description. The Rotzes Sample’s fields’ criminal histories. showing any of made a substantial case, police at 175. In this found Id. or the misstatement alleged omissions history a criminal Michael had includ- arrest were made with concerning the drug ed arrests for offenses and observed truth or that disregard for the reckless the Rotzes’ house windows were covered. finding of they impacted magistrate’s gave police This information more than suspicion. reasonable growing a “hunch” that the Rotzes were marijuana, a sufficient provided basis Suspicion 3. Reasonable issuing magistrate to conclude the ruling of a on motion Our review suspicion had reasonable to search police sufficiency to other suppress is similar trash. affirm and remand the Rotzes’ We N.E.2d at 357. We Litchfield, 824 issues. for trial. evi there is substantial determine whether remanded. Affirmed and probative support of value to dence the evi ruling. reweigh Id. do not J., VAIDIK, J., MATHIAS, concur. conflicting evidence dence and we consider favorably ruling. to the Id. most search,
In order to conduct a trash police must have “articulable individu susрicion, essentially the same as alized ”
required ‘Terry stop.’ for a Id. 364. mini suspicion
“Reasonable
entails some
objective justification
mum
level
COOPER, Appellant-
Cornelius
than an
making
stop; something
more
Defendant,
unparticularized suspicion or
inchoate and
hunch,
considerably
than
proof
but
less
by preponderance
of the evi
wrongdoing
Indiana, Appellee-Plaintiff.
STATE
Straub,
dence.” State v.
No. 49A02-0709-CR-780.
(Ind.Ct.App.2001).
their case to
comparе
The Rotzes
State
Appeals
of Indiana.
Cook,
(Ind.Ct.App.2006),
cases, solely on the DEA the State relied for a providing suspicion reasonable
list as Litchfield, In held the
trash search. we anonymous tip,
DEA akin to an list was requires
which some corroboration. *2 Court;
Appeal Superior from the Marion Young, Judge; The Honorable William E. Cause No. 49G20-0201-FA-10652. County year suspend- the remainder of his twelve Bryan Ciyou, Lee Marion Public Div., IN, ed sentence. Defender, Indianapolis, Appellate Attorney Appellant. hearing, Cooper At thе asked the court *3 happen what if he was not convicted would Carter, Attorney General of Steve said, charges, judge of the new and the Meilaender, Indiana, Deputy At- Ellen H. you probably go proba- “Then will back on IN, General, Attor- torney Indianapolis, (Tr. 8.) at Cooper’s tion.” own counsel neys Appellee. him if it goes told “Now later on to trial you’re guilty and found not ... then [the OPINION judge you let back out but if probably will] you’re looking at happen doesn’t then MAY, Judge. (Id. 6-7.) years.” twelve Cooper’s probation was re- Cornelius Cooper appeal did not rev- hearing a at which the trial voked after charges leading pro- ocation. The to the pres- evidence. He court did not receive later dropped, bation revocation were and whether the trial appeal: ents one issue on Cooper asked the court to reconsider the recon- denying court erred in his motion to The court probation revocation. treated sider. subsequent hearing as one on a motion to reconsider and denied motion. pro- reverse and remand for a new hearing. revocation bation AND DISCUSSION DECISION argues Cooper The State AND FACTS PROCEDURAL challenging barred from rev HISTORY timely appeal ocation because he did not 10, 2003, Cooper pled December On bring that order. He did not cocaine, dealing in a class B felo- guilty to power inherent appeal, but we have of cocaine and a fire- ny,1 possession hear it. arm, felony.2 plea agree- The a class C Supreme has inherent dis- [The Court] provided Cooper ment would be sentenced cretionary to entertain an power executed, eight years years twelve sus- expired. the time allowed has after pended years probation. and two power. Appeals Court of also has this 24, 2007, under such condi- April On court re- However right tions is not a matter of and will after ceived a notice of violation every in situation. This permitted for domestic violence. was arrested exercise such discretion Court will 10, 2007, May hearing At a State cases, in exceptional in such as rare if nine-year sentence he offered interest, or great public matters of would admit the violation. Coo- extraordinary circumstances ex- where and did not per maintained his innocence ist. trial court then re- accept the offer. The Lee, prob- on a 46- Cooper’s probation
voked based ex. rel. 270 Ind. Lugar State (1978) (internal It did not receive able cause affidavit. omitted).3 quotations ordered to serve evidence. Lugar, Supreme Court cited § 3. In our 1. Ind.Code 35-50-2-4. Costanzi Ryan, Ind.App. (1977), “ap granted a late where we 35-48-4-6(b)(l)(B). § Ind.Code peal by grace.” We the definition of noted full This is a matter of The individual is not entitled to due qualifies.
This ease
interest,
may
a trial court
great public
as
process, but is entitled to:
hearing
probation without
not revoke
(a) written
of the claimed viola-
notice
These facts are
provides
process.
(b)
parole;
tions of
to the
disclosure
judge
the trial
indi-
extraordinary because
(c)
him;
against
parolee
op-
of evidence
back on
go
cated to
he would
portunity
person
to be heard
and to
if
was not convicted of the
he
documentary
present witnesses
evi-
charges on which
(d)
dence;
to confront and
8.)
(Tr. at
The record does nоt
was based.
(unless
cross-examine adverse witnesses
Cooper of his
reflect
the court advised
specifically
officer
finds
*4
to
right
appeal.
accordingly
to
choose
good
allowing
cause for not
confronta-
discretionary power to hear
exercise our
(e)
tion);
a ‘neutral and detached’ hear-
appeal.
this late
ing body
parole
such
a traditional
as
grace
“Probation is a matter of
board, members of which need not be
discretion,
right
left to trial court
not a
to
(f)
judicial
lawyers;
a
officers or
which a criminal defendant
is entitled.
by
written statement
the factfinders as
The
court determines the conditions
to the evidence relied on and reasons for
may
of
revoke
if
revoking parole.
the conditions are violated.” Prewitt v.
Brewer,
489,
471,
Morrissey v.
408
92
U.S.
State,
(Ind.2007).
184, 187
N.E.2d
The
878
(1972).4
2593,
S.Ct.
ples rendering trial unfair to the de *5 State, (quoting
fendant.” Id. Hart v. 578 MATHIAS, J., concurs. (Ind.1991)). 336, N.E.2d 337 VAIDIK, J., result, concurs in with Deprivation process of due is opinion. State, fundamental error. v. Goodwin 783 (Ind.2003) (defendant’s VAIDIK, J., 686, concurring in
N.E.2d result. 687 testimony friends’ did not fall under funda I agree majority with the Lugar that mental exception error because it did not Lee, State ex rel. 270 Ind. 383 N.E.2d deprivation amount to a of fundamental (1978), proposition stands for the that process); due Wilson authority we have the inherent to enter- (Ind.1987) (prosecutor permit was not appeals proeedurally tain thаt are time- post-Miranda ted to use defendant’s si However, barred. I believe that we need prove sanity). lence to his Because Coo power, not invoke this which is exercisable innocence, per maintained his the lack of a exceptional in “rare and circum- hearing provided that stances,” under the facts of this case. Id. process falls under the fundamental omitted). Instead, (quotation at we exception. error Cooper’s ap- should decide the merits of Cooper process was entitled to due be peal pursuant to Indiana Post-Conviction fore his was revoked.6 Rule 2. given should have opportunity been the 2 provides Indiana Post-Conviction Rule confront and cross-examine witnesses be that fore the order Pope was made. See eligible defendant convictеd after a [a]n (Ind.Ct.App. 2006) plea guilty may petition trial or (Pope wrongfully was denied a hear test; trial permission court for to file a belat- ing drug agreement and second her appeal that the decision to revoke her ed notice of of the conviction or home de if; Community tention would be made sentence by proper made known to the court offer of 6. The on the motion to recоnsider remedy deprivation proof[.]” was not a of due Lashbrook v. process proof because there the burden of (Ind.2002) (emphasis supplied). Cooper. was shifted from the State to (1) you probably timely THE COURT: Then will failed to file the defendant get probation. back out on appeal; notice of Further, transcript nowhere in the Id. at 8. (2) timely file a notice of failure to evidence that the court оr Coo- is there fault of the not due to the appeal was attorney him of his per’s advised defendant; and after appeal the revocation. Even (3) diligent has been in defendant igno- question asked indicative to file a belated requesting permission right, I can’t contest it or rance of this “So under notice of this rule. anything magnitude anything?,” of that or 2(l)(a). Cooper Ind. PosMJonviction Rule instruct him that he could the court did not appeal, notice of as failed to file determination. Id. at 7. These appeal its revoked his the trial court lead me to conclude that circumstances 10, 2007, until May and he did not should Cooper was led to believe he questions, 2007. The next September await the outcome of his trial before con- then, delay was his fault are whether testing his revocation. He was in diligent pursu- he has been and whether delay appealing thus not at fault for his ing appeal. Cooper passes these tests. the revocation.
First,
surrounding
that,
the circumstances
Next, the record reflects
since the
immediately appeal
failure to
Cooper’s
charges
Cooper’s probation
led to
dismissed,
revoking
order
ac-
court’s
revocation were
has
tively
sought
proba-
not at fault for the
reinstatement of his
reflect that
attorney
tion.
was revoked on
delay. Both his
and the trial
May
July
end
*6
and
the
him that if he was
court informed
ultimate-
2007,
pending
the State
the
dismissed
ly
battery
convicted of the domestic
charges against him.
a week of
Within
“probably”
charges
placed
he would
charges against
the dismissal of the
Coo-
probation.
back on
Defense counsel held a
per, Cooper
participated
аnd his counsel
Cooper
conversation with
on the record
in a
they
which
asked the court
explained
post-revocation proce-
and
to
Tr.
Cooper’s probation.
p.
reinstate
“Now if
dure to
as follows:
later
30, 2007,
(during
July
13-14
a hearing on
battery charges] go[
on
domestic
[the
]
clarifying
they
asking
that
the court
were
by
you’re
guilty
jury
trial and
found not
request
to treat the
as a motion to correct
you
might
or
bеnch trial then
be able to
error).
6,
up
August
followed
on
Judge
probably
write the
and he will then
2007, with a written motion to reconsider
you
Tr.
6.
in
p.
let
back
Later
out[.]”
the revocation
probation, Appellant’s
hearing,
following exchange
49-50,
App. p.
court heard addi-
place
took
between
and the trial
day,
p.
tional evidence on that
see Tr.
111.
Cooper inquired what
court when
would
The trial court denied the motion to re-
happen if he
not convicted of the
August
consider on
and Cooper
charges leading
to the
revoca-
appeal
September
filed his notice of
on
tion:
idly
2007.
ap-
has not sat
on his
MR.
In the event that this
COOPER:
Instead,
pellate rights.
the record re-
case is like I said it was what would it do
actively
sought
flects
he has
rein-
my probation
for
sir?
of probation
statement
within the timeline
THE
If
your
COURT:
that is
violа- he
appropriate.
was led to believe was
tion?
Thus,
diligence requirement
he meets the
2.
MR. COOPER: Yes.
of Indiana PosWJonviction Rule
(Sullivan, J.,
(Ind.Ct.App.2000)
concur
fault for the
not at
Cooper was
Because
ring); Neville
been
he has
appeal and because
belated
(Sullivan, J.,
(Ind.Ct.App.1998)
con
revo-
appeal
of the
pursuing
in
diligent
petitioner
that a
curring). Howard held
cation,
appeal
a belаted
is entitled to
he
appeal
not entitled to a belated
of the
is
Rule
Indiana Post-Conviction
pursuant
post-conviction petition,
of a
denial
for
petition
he has not filed
Although
2.
cannot
Greer held that a defendant
belat
ap-
file a belated notice of
permission to
edly challenge a trial court’s denial
po-
because he takes
peal presumably
—
following
pro
time
а revocation of
credit
timely,
Appel-
see
that his
sition
distinguish
did
be
bation. While Greer
n. 2—had he done so we
p.
lant’s Br.
revocations and direct
tween
address the merits
compelled to
would be
appeals
purpose
of federal due
2(l)(c) (“If the trial
P-C.R.
appeal.
(“Due
Greer,
at 704
process,
of Sec-
requirements
finds that the
court
mandate that
process does not
1(a) met,
defen-
permit
it shall
tiоn
are
the same as direct
revocation be treated
appeal”)
notice of
to file the belated
dant
require
appeals
it
appeals; nor does
added).
agree
I
with the
thus
(emphasis
basis.”),
on a belated
its hold
be available
to examine the sub-
majority’s decision
relating
availability
ap
to the
of an
ing
appeal, but our basis for
stance of
peal under Indiana Post-Conviction Rule
be Indiana Post-
doing
primarily
so should
request
pertained to the defendant’s
Rule 2.
Conviction
time,
ancillary
a matter
to the de
credit
disagreement
recognize
I
that there is
ap
and sentence. An
fendant’s conviction
probation rev-
this
about whether
Court
is,
revoking probation
from an order
peal
under the
appealable
orders are
ocation
view,
not an
of “oth
my
simply
provided by Indiana Post-Convic-
vehicle
as envisioned
post-judgment petitions”
er
law is clear that Indiana
tion Rule
in Howard and
Supreme
our
only permits
belat-
Rule
Post-Conviction
judgment
revoking probation
A
Greer.
appeals.
direct
Greer
ed
fact-finding hearing
follows a
carries
(Ind.1997);
Howard
sentence. Al
imposition
with it an
(Ind.1995).
*7
653 N.E.2d
proba
though
imposed upon
the sentence
appeals
“provide
It does not
an avenue
from the sentence
tion revocation stems
How-
post-judgment petitions.”
of other
sentencing
during
underlying
imposed
ard,
In
v.
N.E.2d at 1390.
Glover
part
of all or
proceeding,
imposition
State,
(Ind.Ct.App.1997),
concurring). This is furthered
allowing appeals belated revo-
cations when defendants meet the no-fault diligence criteria of Indiana PosL-Con-
viction Rule 2. note, As a final I would like express YOWLER, Appellant- Charles
my opinion that what court did Defendant, here simply practice. By bad con- ducting revocation without an evidentiary hearing and indicating then Indiana, Appellee-Plaintiff. STATE of
the defendant that he should chal- No. lenge the 49A04-0803-CR-171. through a motion to reconsider, the trial court improperly Appeals Court of of Indiana. away shifted the burden from the State defendant, and onto the violating the de- 8,Oct. process rights. fendant’s Nonethe- less, I am concerned about our Court’s
decision to entertain the merits of an ap- is,
peal which but for Indiana Post-Convic-
tion procedurally Rule barred. in- Our
herent power appeals to hear that are
barred should be exercised in the rarest of that, My
cases. fear is reviewing the grounds
merits than other
Indiana PosWConviction Rule we are
sending wrong message practition- inadvertently
ers. are indicating prepared
we are to pick up
regardless timeliness, of its without adher-
ence to the strict requirements of Indiana Rule 2. By ignoring
PosWConvietion these
requirements cases, in some we create ar- system,
bitrariness and arbitrari- litigants
ness denies notice of when and apply
how we will our own rules. For this
reason, I contend that we should entertain