If you have questions about sentence modification, compassionate release, or post conviction Relief in Indiana, please call me for a free consultation. I have practiced criminal defense my entire career, teach criminal law at the IU School of Law, and have personally handled thousands of cases. Additional information about my office is available on the home page and the in the news page. The following information may also be helpful:

Call for a Free Indiana Attorney Consultation 317-695-7700

Post Conviction Relief Application Form

Post Conviction Relief Case Law

Post Conviction Relief Rule 1

Post Conviction Relief Rule 2

Call for a Free Consultation 317-695-7700

Sentence modification, compassionate release, and post conviction relief cases are difficult. Over turning a previous Court ruling is a great deal of work and only a minority of cases are successful. However, if this is something you are interesed in pursuing, please contact me at 317-695-7700.

Post Conviction Relief Application Form

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INSTRUCTIONS — READ CAREFULLY

In order for this motion to receive consideration by the court, it shall be in writing (legibly handwritten or typewritten), signed by the petitioner and verified before a person authorized to administer oaths, and it shall set forth in concise form the answers to each applicable question. If necessary, petitioner may furnish his answer to a particular question on the reverse side of the page or an additional blank page. Petitioner shall make it clear to which question any such continued answer refers.

This motion must be filed in the court which imposed sentence.

Under the provisions of Post-Conviction Remedy Rule 1, petitioner is required to include in this motion every ground known to him for vacating, setting aside or correcting his conviction and sentence. Be sure to include every ground.

Since every motion must be sworn to under oath, any false statement of a material fact therein may serve as the basis of prosecution and conviction for perjury. Petitioners should therefore exercise care to assure that all answers are true and correct.

If the motion is taken in forma pauperis, it shall include an affidavit (attached at the back of the form) setting forth information which establishes that petitioner will be unable to pay costs of the proceedings. When the motion is completed, the original and two copies shall be mailed to the clerk of the court from which he was sentenced.

1. Place of detention, if detained. If not, present address If not, present address

2. Name and location of court which, and name of judge who, imposed sentence

3. The case number and the offense or offenses for which sentence was imposed

4. The date upon which sentence was imposed and the terms of the sentence

5. Was the finding of guilty made:

( ) After a plea of guilty? OR

( ) After a plea of not guilty?

6. Did you appeal from the judgment of conviction?

( ) Yes ( ) No

7. If you answered “yes” to (6), list:

(a) The name of the court to which you appealed:
(b) The result in such court and the date of such result:

8. State concisely all the grounds known to you for vacating, setting
aside or correcting your conviction and sentence. (See Rule PC 1, Sec. 1a)

(a)
(b)
(c)
(If you have more grounds, use reverse side or separate sheet. However, if
this is a successive petition for post-conviction relief, you may submit no
more than fifteen (15) additional pages, double-spaced, to provide supporting
facts. You may also submit exhibits.)

9. State concisely and in the same order the facts which support each of
the grounds set forth in (8).

(a)
(b)
(c)

10. Prior to this petition, have you filed with respect to this conviction:

(a) Any petition for post conviction relief pursuant to
Post-Conviction Remedy Rule 1 or 2?
( ) Yes ( ) No

(b) Any petitions for habeas corpus in state or federal courts?
( ) Yes ( ) No

(d) Any other petitions, motions or applications in this or any other
court?
( ) Yes ( ) No

11. If you answered “yes” to any part of (10), list with respect to each petition, motion or application:

(a) Its specific nature:
i.
ii.
iii.
(b) The name and location of the court in which each was filed:
i.
ii.
iii.
(c) The disposition of the petition, motion or application and the
date of disposition:
i.
ii.
iii.
(d) If known, citations of any written opinions or orders entered
pursuant to each disposition:
i.
ii.
iii

12. Has any ground set forth in (8) been previously presented to this or any other court, state or federal, in any petition, motion or application which you have filed?

( ) Yes ( ) No

13. If you answered “yes” to (12), identify:

(a) Which grounds have been previously presented:
i.
ii.
iii.
(b) The proceedings in which each ground was raised:
i.
iii.
iii.

14. Were you represented by an attorney at any time during the course of:

(a) Your preliminary hearing?
( ) Yes ( ) No

(b) Your arraignment and plea?
( ) Yes ( ) No

(d) Your sentencing?
( ) Yes ( ) No

(e) Your appeal, if any, from the judgment of conviction or the
imposition of sentence?
( ) Yes ( ) No

(f) Preparation, presentation or consideration of any petitions,
motions or applications with respect to this conviction, which you filed?
( ) Yes ( ) No

15. If you answered “yes” to one or more parts of (14), list:

(a) The name and address of each attorney who represented you:
i.
ii.
iii.
(b) The proceedings at which each such attorney represented you:
i.
ii.
iii.
(c) Was said attorney:
( ) Appointed by the court? OR

( ) Of your own choosing?

16. Have you completed service of the challenged sentence?

( ) Yes ( ) No

17. Have you retained an attorney to represent you in this proceeding?

( ) Yes ( ) No

18. If you are without sufficient funds to employ counsel and are
incarcerated in the Indiana Department of Correction, the Public Defender may
represent you. If you check “NO” you lose the right to representation by the
State Public Defender for the duration of this proceeding, including any
appeal therefrom.

(a) Do you wish to have the Public Defender represent you?
( ) Yes ( ) No

(b) If yes, have you completed the Affidavit of Indigency attached to
this form, stating your salary, if any, amount of savings, and all property
owned by you?
( ) Yes ( ) No

Signature of Petitioner

State of SS:

County of

I, , being duly sworn upon my oath, depose and say that I have subscribed to the foregoing petition; that I know the contents thereof; that it includes every ground known to me for vacating, setting aside or correcting the conviction and sentence attacked in this motion; and that the matters and allegations therein set forth are true.

Signature of Affiant

Subscribed and sworn to before me this day of , 19 .

Notary Public

My Commission Expires: (date)

AFFIDAVIT OF INDIGENCY
(See instructions page 1 of this form)

Signature of Petitioner

State of SS:

County of

I, (name), being first duly sworn upon my oath, depose and say that I have subscribed to the foregoing affidavit; that I know the contents thereof; and that the matters therein set forth are true.

Signature of Affiant

Subscribed and sworn to before me this day of , (date) .

Notary Public

My Commission Expires: (date)

FORM FOR SUCCESSIVE POST-CONVICTION RELIEF RULE 1 PETITIONS

INSTRUCTIONS — READ CAREFULLY

If you have previously filed a Petition for Post-Conviction Relief directed to this conviction or these convictions and the earlier petition was decided on the merits, you must fill out this form and file it along with your Petition. It must be legibly handwritten or typewritten, signed by the petitioner before a person authorized to take oaths and properly notarized. Since this must be signed under oath, any false statement of a material fact herein may serve as the basis of prosecution and conviction for perjury. Exercise care to be sure all answers are true and correct.

You must mail the original and two copies of this form along with your petition to the Clerk of the Supreme Court and Court of Appeals, 200 West Washington Street, Room 216, Indianapolis, IN 46204-2732. The Clerk will refer your petition to the Supreme Court in death penalty cases and the Indiana Court of Appeals in all other cases. The court will then decide whether your petition may be filed in the trial court where your first Post-Conviction Remedy Rule 1 petition was adjudicated.

NOTE: The court will allow a second or successive petition for post-conviction relief to be filed if the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction relief. However, a petitioner does not establish a reasonable possibility that the petitioner is entitled to post-conviction relief where, for example, (1) if the petitioner only alleges grounds for relief that are not different from those which have already been decided on the merits, or (2) if the only grounds alleged, even if different, should have been alleged in an earlier proceeding.

In addition to this form, you may submit no more than fifteen (15) pages, double-spaced, to provide supporting facts. You may also submit exhibits. Any citation of authorities should be avoided and is only appropriate if there has been a change in the law since the judgment you were attacking was entered. Your answer(s) should be confined to relevant facts and must not include legal arguments.

1. Were you represented by an attorney on your prior Petition for
Post-Conviction Relief? Yes No If yes, name(s) and address(es) of
attorney(s).

Proceedings at which each attorney represented you:

Drafting Petition for Post-Conviction Relief

Hearing of Petition for Post-Conviction Relief

Appeal of denial of Petition for Post-Conviction Relief

2. Was there a hearing on your prior Petition? Yes No

3. If the Petition was denied, did you appeal? Yes No
If yes, please state result on appeal, date of decision and citation of
case if known:

4. If you were alleging ground(s) for relief which were raised in your previous Petition, explain why you feel consideration is merited:

5. If your Petition raises new grounds which were not included in your prior Petition, explain why you are raising these grounds now. Your explanation should rely on FACTS, not your opinions or conclusions:

Signature of Petitioner

STATE OF ) SS:

COUNTY OF )

I, (name) , being duly sworn upon my oath, depose and say that I have subscribed to the foregoing; that I know the contents thereof; and that the matters and allegations set forth are true.

Signature of Affiant-Petitioner

Subscribed and sworn to before me, a Notary Public, this (date).

Notary Public

Printed Name

My Commission Expires: County of Residence:

Post Conviction Relief Case Law

Rowe v. State, 704 N.E.2d 1104 (Ind. App. 1999). The Defendant argued he was entitled to retrial when the State failed to provide the witnesses criminal record. The Court found a new trial was required where the witness had an incentive to lie, the defendant showed a reasonable probability that the result of the trial would have been different, the state failed to disclose the criminal record of the witness, and the witnesses testimony was the main focus of the original trial.

Wright v. State, 881 N.E.2d 1018 (Ind. App. 2008). The defendant showed, as required by Rule 1(5), by a preponderance of evidence, that he was entitled to relief because he established that his appellate counsel was ineffective for failing to argue:

(1) trial counsel was ineffective for eliciting an admission from defendant that defendant was a repeat sex offender based when in fact the previous conviction was not a qualifying offense; and

(2) the enhanced sentence was fundamental error as a result of the repeat sex offender designation.

White v. State, 497 N.E.2d 893 (Ind. 1986). The defendant carries the burden of showing that any omitted advisements created prejudice. The defendant must show that his plea would have been different had he known and understood such advisements.

Wilkerson v. State, 728 N.E.2d 239 (Ind. App. 2000). Where the State failed to present any actual evidence in support of its claim of prejudice, the claim of laches was not supported.

Haynes v. State, 436 N.E.2d 874 (Ind. App. 1982). Where an individual unreasonably delays the seeking of relief may be subject to the defense of laches and equitable estoppel, both of which are affirmative defenses.

Post Conviction Relief Rule 1

Rule PC 1. Post-Conviction Relief

Section 1. Remedy–To whom available–Conditions.

(a) Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims:

(1) that the conviction or the sentence was in violation of the Constitution of the United States or the constitution or laws of this state;

(2) that the court was without jurisdiction to impose sentence;

(3) that the sentence exceeds the maximum authorized by law, or is otherwise erroneous;

(4) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

(5) that his sentence has expired, his probation, parole or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint;

(6) that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy;

may institute at any time a proceeding under this Rule to secure relief.

(b) This remedy is not a substitute for a direct appeal from the conviction and/or the sentence and all available steps including those under Rule PC 2 should be taken to perfect such an appeal. Except as otherwise provided in this Rule, it comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence and it shall be used exclusively in place of them.

(c) This Rule does not suspend the writ of habeas corpus, but if a person applies for a writ of habeas corpus in the county where the person is incarcerated and challenges the validity of his conviction or sentence, that court shall transfer the cause to the court in which the conviction took place, and the latter court shall treat it as a petition for relief under this Rule.

(d) A petition filed by a person who has been convicted or sentenced for a crime by a court of this state that seeks to require forensic DNA testing or analysis of any evidence, whether denominated as a petition filed pursuant to Ind. Code § 35-38-7-5 or not, is considered a Petition for Post-Conviction Relief.

(e) A petition seeking to present new evidence challenging the person’s guilt or the appropriateness of the person’s sentence, when brought by a person who has been sentenced to death and who has completed state post-conviction review proceedings, whether denominated as a petition filed pursuant to Ind. Code § 35-50-2-9(k) or not, is considered a Successive Petition for Post-Conviction Relief under Section 12 of this Rule.

Section 2. Filing.

A person who claims relief under this Rule or who otherwise challenges the validity of a conviction or sentence must file a verified petition with the clerk of the court in which the conviction took place, except that a person who claims that the person’s parole has been unlawfully revoked must file a verified petition with the clerk of the court in the county in which the person is incarcerated. Three (3) copies of the verified petition must be filed and no deposit or filing fee shall be required.

The Clerk shall file the petition upon its receipt and deliver a copy to the prosecuting attorney of that judicial circuit. In capital cases, the clerk shall, in addition to delivering a copy of the petition to the prosecuting attorney, immediately deliver a copy of the petition to the Attorney General. If an affidavit of indigency is attached to the petition, the clerk shall call this to the attention of the court. If the court finds that the petitioner is indigent, it shall allow petitioner to proceed in forma pauperis. If the court finds the indigent petitioner is incarcerated in the Indiana Department of Correction, and has requested representation, it shall order a copy of the petition sent to the Public Defender’s office.

Section 3. Contents.

(a) The petition shall be submitted in a form in substantial compliance with the standard form appended to this Rule. The standard form shall be available without charge from the Public Defender’s Office, who shall also see that the forms are available at every penal institution in this State.

(b) The petition shall be made under oath and the petitioner shall verify the correctness of the petition, the authenticity of all documents and exhibits attached to the petition, and the fact that he has included every ground for relief under Sec. 1 known to the petitioner.

(c) Documents and information excluded from public access pursuant to the Rules on Access to Court Records shall be filed in accordance with Trial Rule 5(G).

Section 4. Pleadings.

(a) Within thirty (30) days after the filing of the petition, or within any further reasonable time the court may fix, the state, by the Attorney General in capital cases, or by the prosecuting attorney in non-capital cases, shall respond by answer stating the reasons, if any, why the relief prayed for should not be granted. The court may make appropriate orders for amendment of the petition or answer, for filing further pleadings or motions, or for extending the time of the filing of any pleading.

(b) Within ten [10] days of filing a petition for post-conviction relief under this rule, the petitioner may request a change of judge by filing an affidavit that the judge has a personal bias or prejudice against the petitioner. The petitioner’s affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate from the attorney of record that the attorney in good faith believes that the historical facts recited in the affidavit are true. A change of judge shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice. For good cause shown, the petitioner may be permitted to file the affidavit after the ten [10] day period. No change of venue from the county shall be granted. In the event a change of judge is granted under this section, the procedure set forth in Ind.Criminal Rule 13 shall govern the selection of a special judge.

(c) At any time prior to entry of judgment the court may grant leave to withdraw the petition. The petitioner shall be given leave to amend the petition as a matter of right no later than sixty [60] days prior to the date the petition has been set for trial. Any later amendment of the petition shall be by leave of the court.

(d) If the petition is challenging a sentence imposed following a plea of guilty, the court shall make a part of the record the certified transcript made pursuant to Rule CR-10.

(e) In the event that counsel for petitioner files with the court a withdrawal of appearance accompanied by counsel’s certificate, see Section 9(c), the case shall proceed under these rules, petitioner retaining the right to proceed pro se in forma pauperis if indigent. Thereafter, the court may order the State Public Defender to represent an indigent incarcerated petitioner if the court makes a preliminary finding that the proceeding is meritorious and in the interests of justice.

(f) If the State Public Defender has filed an appearance, the State Public Defender shall have sixty (60) days to respond to the State’s answer to the petition filed pursuant to Rule PC 1(4)(a). If the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the petition without further proceedings.

(g) The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.

Section 5. Hearing.

The petition shall be heard without a jury. A record of the proceedings shall be made and preserved. All rules and statutes applicable in civil proceedings including pre-trial and discovery procedures are available to the parties, except as provided above in Section 4(b). The court may receive affidavits, depositions, oral testimony, or other evidence and may at its discretion order the applicant brought before it for the hearing. The petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.

Section 6. Judgment.

The court shall make specific findings of fact, and conclusions of law on all issues presented, whether or not a hearing is held. If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the conviction or sentence in the former proceedings, and any supplementary orders as to arraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper. This order is a final judgment.

Section 7. Appeal.

An appeal may be taken by the petitioner or the State from the final judgment in this proceeding, under rules applicable to civil actions. Jurisdiction for such appeal shall be determined by reference to the sentence originally imposed. The Supreme Court shall have exclusive jurisdiction in cases involving an original sentence of death and the Court of Appeals shall have jurisdiction in all other cases.

Section 8.

Waiver of or failure to assert claims. All grounds for relief available to a petitioner under this rule must be raised in his original petition. Any ground finally adjudicated on the merits or not so raised and knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the petitioner has taken to secure relief, may not be the basis for a subsequent petition, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original petition.

Section 9. Counsel.

(a) Upon receiving a copy of the petition, including an affidavit of indigency, from the clerk of the court, the Public Defender may represent any petitioner committed to the Indiana Department of Correction in all proceedings under this Rule, including appeal, if the Public Defender determines the proceedings are meritorious and in the interests of justice. The Public Defender may refuse representation in any case where the conviction or sentence being challenged has no present penal consequences. Petitioner retains the right to employ his own counsel or to proceed pro se, but the court is not required to appoint counsel for a petitioner other than the Public Defender.

(b) In the event petitioner elects to proceed pro se, the court at its discretion may order the cause submitted upon affidavit. It need not order the personal presence of the petitioner unless his presence is required for a full and fair determination of the issues raised at an evidentiary hearing. If the pro se petitioner requests issuance of subpoenas for witnesses at an evidentiary hearing, the petitioner shall specifically state by affidavit the reason the witness’ testimony is required and the substance of the witness’ expected testimony. If the court finds the witness’ testimony would be relevant and probative, the court shall order that the subpoena be issued. If the court finds the proposed witness’ testimony is not relevant and probative, it shall enter a finding on the record and refuse to issue the subpoena. Petitioners who are indigent and proceeding in forma pauperis shall be entitled to production of guilty plea and sentencing transcripts at public expense, prior to a hearing, if the petition is not dismissed. In addition, such petitioners shall also be entitled to a record of the post-conviction proceeding at public expense for appeal of the denial or dismissal of the petition.

(c) Counsel shall confer with petitioner and ascertain all grounds for relief under this rule, amending the petition if necessary to include any grounds not included by petitioner in the original petition. In the event that counsel determines the proceeding is not meritorious or in the interests of justice, before or after an evidentiary hearing is held, counsel shall file with the court counsel’s withdrawal of appearance, accompanied by counsel’s certification that 1) the petitioner has been consulted regarding grounds for relief in his pro se petition and any other possible grounds and 2) appropriate investigation, including but not limited to review of the guilty plea or trial and sentencing records, has been conducted. Petitioner shall be provided personally with an explanation of the reasons for withdrawal. Petitioner retains the right to proceed pro se, in forma pauperis if indigent, after counsel withdraws.

(d) State. In non-capital cases, the prosecuting attorney of the circuit in which the court of conviction is situated shall represent the State of Indiana in the court of conviction. In capital cases, the Attorney General shall represent the State of Indiana for purposes of answering the petition, and the prosecuting attorney shall, at the request of the Attorney General, assist the Attorney General. The Attorney General shall represent the State of Indiana on any appeal pursuant to this Rule.

Section 10. Subsequent Prosecution.

(a) If prosecution is initiated against a petitioner who has successfully sought relief under this rule and a conviction is subsequently obtained, or

(b) If a sentence has been set aside pursuant to this rule and the successful petitioner is to be resentenced, then the sentencing court shall not impose a more severe penalty than that originally imposed unless the court includes in the record of the sentencing hearing a statement of the court’s reasons for selecting the sentence that it imposes which includes reliance upon identifiable conduct on the part of the petitioner that occurred after the imposition of the original sentence, and the court shall give credit for time served.

(1) a conviction, based upon a plea agreement, is set aside;

(2) the state files an offer to abide by the terms of the original plea agreement within twenty (20) days after the conviction is set aside; and

(3) the defendant fails to accept the terms of the original plea agreement within twenty (20) days after the state’s offer to abide by the terms of the original plea agreement is filed.

Section 11. Definition. Whenever “Public Defender” is mentioned herein, it shall mean the Public Defender of the State of Indiana as defined by statute.

Section 12. Successive Petitions.

(a) A petitioner may request a second, or successive, Petition for Post-Conviction Relief by completing a properly and legibly completed Successive Post-Conviction Relief Rule 1 Petition Form in substantial compliance with the form appended to this Rule. Both the Successive Post-Conviction Relief Rule 1 Petition Form and the proposed successive petition for post-conviction reliefshall be sent to the Clerk of the Indiana Supreme Court, Indiana Court of Appeals, and Tax Court.

(b) The court will authorize the filing of the petition if the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction relief. In making this determination, the court may consider applicable law, the petition, and materials from the petitioner’s prior appellate and post-conviction proceedings including the record, briefs and court decisions, and any other material the court deems relevant.

(c) If the court authorizes the filing of the petition, it is to be (1) filed in the court where the petitioner’s first post-conviction relief petition was adjudicated for consideration pursuant to this rule by the same judge if that judge is available, and (2) referred to the State Public Defender, who may represent the petitioner as provided in Section 9(a) of this Rule. Authorization to file a successive petition is not a determination on the merits for any other purpose and does not preclude summary disposition pursuant to Section (4)(g) of this Rule.

Post Conviction Relief Rule 2

Rule PC 2. Belated Notice of Appeal–Belated Motion to Correct Error–Belated Appeal

Eligible defendant defined. An “eligible defendant” for purposes of this Rule is a defendant who, but for the defendant’s failure to do so timely, would have the right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal.

Appellate court jurisdiction. Jurisdiction of an appeal under this Rule is determined pursuant to Rules 4 and 5 of the Indiana Rules of Appellate Procedure by reference to the sentence imposed as a result of the challenged conviction or sentence.

Section 1. Belated Notice of Appeal

(a) Required Showings. An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if;

(1) the defendant failed to file a timely notice of appeal;

(2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and

(3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.

(b) Form of petition. There is no prescribed form of petition for permission to file a belated notice of appeal. The petitioner’s proposed notice of appeal may be filed as an Exhibit to the petition.

(c) Factors in granting or denying permission. If the trial court finds that the requirements of Section 1(a) are met, it shall permit the defendant to file the belated notice of appeal. Otherwise, it shall deny permission.

(d) Hearing. If a hearing is held on a petition for permission to file a belated notice of appeal, it shall be conducted according to Ind. Post-Conviction Rule 1(5).

(e) Appealability. An order granting or denying permission to file a belated notice of appeal is a Final Judgment for purposes of Ind. Appellate Rule 5.

(f) Time and procedure for initiating appeal.

If the court grants permission to file a belated notice of appeal, the time and procedure for filing such notice of appeal is governed by App. R. 9(A).

Section 2. Belated Motion to Correct Error.

(a) Required Showings. An eligible defendant convicted after a trial or plea of guilty may petition the court of conviction for permission to file a belated motion to correct error addressing the conviction or sentence, if:

(1) no timely and adequate motion to correct error was filed for the defendant;

(2) the failure to file a timely motion to correct error was not due to the fault of the defendant; and

(3) the defendant has been diligent in requesting permission to file a belated motion to correct error under this rule.

(b) Merits of motion. The trial court shall not consider the merits of the motion until it has determined whether the requirements of Section 2(a) are met.

(d) Factors in granting or denying permission. If the trial court finds that the requirements of section 2(a) are met, it shall permit the defendant to file the motion, and the motion shall then be treated for all purposes as a motion to correct error filed within the prescribed period.

(e) Appealability of Denial of Permission. If the trial court finds that the requirements of Section 2(a) are not met, it shall deny defendant permission to file the motion. Denial of permission shall be a Final Judgment for purposes of App. R. 5.

(f) Time for initiating appeal. The time for filing a notice of appeal from denial of permission is governed by App. R. 9(A).

Section 3. Belated Perfection of Appeal.

An eligible defendant convicted after a trial or plea of guilty may petition the appellate tribunal for permission to pursue a belated appeal of the conviction or sentence if:

(a) the defendant filed a timely notice of appeal;

(b) no appeal was perfected for the defendant or the appeal was dismissed for failing to take a necessary step to pursue the appeal;

(d) the defendant has been diligent in requesting permission to pursue a belated appeal.

IC 35-38-1-17 Sentence modification; conditions; not permitted for certain offenders

(a) Notwithstanding IC 1-1-5.5-21, this section applies to a person who:

(1) commits an offense; or

(2) is sentenced;

before July 1, 2014.

(b) This section does not apply to a credit restricted felon.

(d) As used in this section, “violent criminal” means a person convicted of any of the following offenses:

(1) Murder (IC 35-42-1-1).

(2) Attempted murder (IC 35-41-5-1).

(3) Voluntary manslaughter (IC 35-42-1-3).

(4) Involuntary manslaughter (IC 35-42-1-4).

(5) Reckless homicide (IC 35-42-1-5).

(6) Aggravated battery (IC 35-42-2-1.5).

(7) Kidnapping (IC 35-42-3-2).

(8) Rape (IC 35-42-4-1).

(9) Criminal deviate conduct (IC 35-42-4-2) (before its repeal).

(10) Child molesting (IC 35-42-4-3).

(11) Sexual misconduct with a minor as a Class A felony under IC 35-42-4-9(a)(2) or a Class B felony under IC 35-42-4-9(b)(2) (for a crime committed before July 1, 2014) or sexual misconduct with a minor as a Level 1 felony under IC 35-42-4-9(a)(2) or a Level 2 felony under IC 35-42-4-9(b)(2) (for a crime committed after June 30, 2014).

(12) Robbery as a Class A felony or a Class B felony (IC 35-42-5-1) (for a crime committed before July 1, 2014) or robbery as a Level 2 felony or a Level 3 felony (IC 35-42-5-1) (for a crime committed after June 30, 2014).

(13) Burglary as Class A felony or a Class B felony (IC 35-43-2-1) (for a crime committed before July 1, 2014) or burglary as a Level 1 felony, Level 2 felony, Level 3 felony, or Level 4 felony (IC 35-43-2-1) (for a crime committed after June 30, 2014).

(14) Unlawful possession of a firearm by a serious violent felon (IC 35-47-4-5).

(e) At any time after:

(1) a convicted person begins serving the person’s sentence; and

(2) the court obtains a report from the department of correction concerning the convicted person’s conduct while imprisoned;

the court may reduce or suspend the sentence and impose a sentence that the court was authorized to impose at the time of sentencing. The court must incorporate its reasons in the record.

(f) If the court sets a hearing on a petition under this section, the court must give notice to the prosecuting attorney and the prosecuting attorney must give notice to the victim (as defined in IC 35-31.5-2-348) of the crime for which the convicted person is serving the sentence.

(g) The court may suspend a sentence for a felony under this section only if suspension is permitted under IC 35-50-2-2.2.

(h) The court may deny a request to suspend or reduce a sentence under this section without making written findings and conclusions.

(i) The court is not required to conduct a hearing before reducing or suspending a sentence under this section if:

(1) the prosecuting attorney has filed with the court an agreement of the reduction or suspension of the sentence; and

(2) the convicted person has filed with the court a waiver of the right to be present when the order to reduce or suspend the sentence is considered.

(j) This subsection applies only to a convicted person who is not a violent criminal. A convicted person who is not a violent criminal may file a petition for sentence modification under this section:

(1) not more than one (1) time in any three hundred sixty-five (365) day period; and

(2) a maximum of two (2) times during any consecutive period of incarceration;

without the consent of the prosecuting attorney.

(k) This subsection applies to a convicted person who is a violent criminal. A convicted person who is a violent criminal may, not later than three hundred sixty-five (365) days from the date of sentencing, file one (1) petition for sentence modification under this section without the consent of the prosecuting attorney. After the elapse of the three hundred sixty-five (365) day period, a violent criminal may not file a petition for sentence modification without the consent of the prosecuting attorney.

(l) A person may not waive the right to sentence modification under this section as part of a plea agreement. Any purported waiver of the right to sentence modification under this section in a plea agreement is invalid and unenforceable as against public policy. This subsection does not prohibit the finding of a waiver of the right to sentence modification for any other reason, including failure to comply with the provisions of this section.

(m) Notwithstanding subsection (k), a person who commits an offense after June 30, 2014, and before May 15, 2015, may file one (1) petition for sentence modification without the consent of the prosecuting attorney, even if the person has previously filed a petition for sentence modification.

If you are in need of an Indiana expungement attorney, Indiana criminal defense attorney, or Indiana forfeiture attorney, or have questions about the Indiana Expungement Law please call me for a free consultation at 317-695-7700. I have personally defended thousands of cases, teach criminal law at the IU School of Law, am a top rated attorney, and have practiced criminal defense my entire career. Additional information about my office is available on the home page and the in the news page.

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Sentence Modification, Compassionate Release, and Post Conviction Relief Attorney

Call for a Free Consultation 317-695-7700

Post Conviction Relief Application Form

Post Conviction Relief Case Law

Post Conviction Relief Rule 1

Post Conviction Relief Rule 2