Thursday, October 19, 2006

More about Post-Conviction Rule 2: When Plain Language Means Its Opposite

In the previous post, I pointed out that Post-Conviction Rule 2, § 1, which governs belated appeals, cannot be the proper vehicle for filing a belated appeal of a sentence. By its language, the rule only applies to belated appeals of convictions:
Where an eligible defendant convicted after a trial or plea of guilty fails to file a timely notice of appeal, a petition for permission to file a belated notice of appeal for appeal of the conviction may be filed with the trial court, where . . .
.The Indiana Supreme Court said otherwise in Gutermuth, of course.

A clever reader and cleverer lawyer pointed out to me that there is another problem with the rule. The rule does permit belated appeals of convictions after a guilty plea. That would seem to imply that an appeal of a conviction resulting from a guilty plea is possible.

Except that it isn't:
In Tumulty [v. State, 666 N.E.2d 394 (Ind. 1996)], we held that once judgment is entered, a defendant may not subsequently challenge his guilty plea on direct appeal. Id. at 395-96. The correct avenue for such claims is post-conviction relief. Id. at 396.
Brightman v. State (Ind. 11/15/01).

So with
Gutermuth, the Supreme Court permitted what the rule forbids; and with Tumulty, the court forbade what the rule permits.

I take no position about what the rule in either instance should be. But I am not sure why the plain language of the Supreme Court's own rules need to contradict what the Supreme Court says the law is. Gutermuth is 2 years old; Tumulty 10. It cannot be that hard for the court ot amend its own rules.

Maybe I am missing something, and I invite comments.

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