Wednesday, October 11, 2006

Salazaar v. State: A Feat of Memory Leads to a Wrinkle on Belated Appeals.

There has been a spate of belated appeals cases in the published and unpublished decisions over the last few weeks. Eight published decisions by my count since July 25th.

One came down yesterday with an interesting practice pointer in it for those who labor in the land of Indiana's Post-Conviction Rules, which govern belated appeals. At least it contains a tidbit that I did not know about. The case was Salazaar v. State, Court of Appeals No. 79A02-0502-PC-130 (Ind. Ct. App. October 10, 2006).

For some reason, requests for permission to file a belated appeal are run by Post-Conviction Rule 2. (I guess the reason is that the Indiana Supreme Court has set it up that way.) Normally, in post-conviction proceedings under Post-Conviction Rule 1, one has to enter the trial record as evidence. According to Salazaar, "Due to the very nature of a Post-Conviction Rule 2 hearing, and unlike a petition for post-conviction relief under Post-Conviction Rule 1, the entire record of the original trial is automatically before the trial court in a Post-Conviction Rule 2 proceeding. Henry v. State, 170 Ind.App. 463, 466, 353 N.E.2d 482, 484 n.2 (1976)." Slip op. at 9.

There's no reasoning about this to speak of--just the citation to a footnote in Henry. I've looked at Henry. Just the footnote with the proposition. No reasoning. And, with a half-hearted search, I have not been able to find the proposition anywhere else. (Please comment, if you know of other cases.)

But guess what. Judge Sullivan wrote Salazaar; and Judge Sullivan was on the panel that decided Henry. It looks a bit as though Judge Sullivan has had that Henry footnote tucked away for 30 years--and from an opinion he did not even write.


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