IN THE INDIANA SUPREME COURT
KOENIG, Jeffrey, ) Court of Appeals
appellant, ) cause no. 49A04-0103-CR-115
v. )
) Supreme Court
STATE OF INDIANA, ) cause no. 49S04-0201-CR-92
appellee. )
ORDER GRANTING TRANSFER AND
REMANDING TO THE COURT OF APPEALS
On August 29, 1997, appellant was convicted of three counts of
robbery and three counts of criminal confinement. His concurrent six-year
sentences on each count were suspended, except for time already served, and
appellant was instead placed on probation. Appellant did not immediately
appeal those convictions.
On April 6, 1999, appellant’s probation was revoked and he was
ordered to serve the previously suspended sentences. No timely appeal was
taken from this sentencing order either.
On August 21, 2000, appellant filed a pro se petition seeking post-
conviction relief. The petition alleged, among other things, that
appellant was denied a right to counsel. In support of that contention,
appellant asserted that he wanted to appeal the revocation of probation,
but that the trial court had failed to appoint pauper counsel for him. The
State of Indiana, through the Marion County Prosecutor, filed an answer to
the petition. In its answer, the State asserted that the petition should
be dismissed because appellant had failed to exhaust his appellate
remedies. Specifically, the State asserted that appellant’s remedy was to
seek leave to file a belated appeal of the underlying convictions, as
procedurally authorized by Post-Conviction Rule 2, section 1. See
Appendix, pp. 124-25 (“State’s Answer”). The petition seeking post-
conviction relief was denied.
Thereafter, on March 7, 2001, the Marion County Public Defender
Agency did what the State had argued should have been done – it filed on
behalf of the appellant a motion seeking leave to file a belated notice of
appeal from the underlying convictions. No objection was made by the State
and the trial court granted that motion. This appeal ensued.
Ultimately, a brief of the appellant was filed on August 13, 2001.
The claims of error were directed to the underlying robbery and confinement
convictions, not to the revocation of probation. In response, the State of
Indiana, through its Attorney General, filed a motion to dismiss the
appeal. The State asserted that appellant had not been diligent in
requesting an appeal from the underlying conviction, as required by Post-
Conviction Rule 2, section 1(b). The Court of Appeals granted the motion
and dismissed the appeal. The appellant filed a petition seeking transfer
of jurisdiction in accordance with Appellate Rules 56(B) and 57(B)(4).
Evidence exists that would support a determination that appellant was
not diligent in pursuing an appeal of the underlying convictions and
sentencing. Appellant’s principal interest seemed to be appealing the
order revoking his probation. Had the State made that argument in the
trial court, perhaps the trial judge would also have agreed that the
requirements of Post-Conviction Rule 2 had not been met.
But in response to the appellant’s petition seeking post-conviction
relief, the State expressly argued to the trial court that appellant’s
remedy was to file a motion seeking leave to file a belated appeal of the
underlying judgment. When appellant took the action invited by the State,
no objection was made to that motion. The trial court then granted the
appellant leave to file a late notice of appeal. A transcript was prepared
by the court reporter. Counsel reviewed the record, formulated issues, and
prepared and filed an appendix and a brief. Only then did the State raise,
for the first time, a claim that appellant was not diligent in seeking an
appeal of the convictions and sentence. The Court of Appeals dismissed the
appeal on that basis.
This result appears to be a significant departure from accepted law
and practice. See Ind. Appellate Rule 57(H)(6). The State’s inconsistent
actions and failure to object to the motion seeking leave to file a belated
notice of appeal warrant the appeal being reinstated. Accordingly, we
grant transfer and remand the appeal to the Court of Appeals with
instructions to vacate its order granting the State’s motion to dismiss, to
deny the motion, and to establish a briefing schedule for review of the
appeal on the merits.
The Clerk is directed to send a copy of this order to Hon. Sanford M.
Brook, Chief Judge of the Court of Appeals; to Steve Lancaster, Court of
Appeals Administrator; to Janet Roberts Blue, Commissioner of the Court of
Appeals; to Hon. Alex Murphy; to the Attorney General of Indiana; to the
Indiana Public Defender; and to all counsel of record.
Done at Indianapolis, Indiana this 30th day of January, 2002.
______________________________
Randall T. Shepard
Chief Justice of Indiana
All Justices concur.