In Part 1, I outlined the general process to follow when appellate counsel receives a juvenile delinquency appeal where the child has entered an admission. In Part 2, I addressed the issue of counsel to assist in these proceedings. In this post, I will provide some guidance on investigating potential Trial Rule 60(B) claims and whether counsel can unilaterally choose not to litigate claims that are not meritorious.
Indiana Trial Rule 60(B) allows a party to be relieved from a judgment or order for several enumerated reasons. The particular reason alleged in the motion determines the time a party has to file the motion.
With respect to delinquency proceedings, a child has only one year from the entry of judgment or order to file a Trial Rule 60(B) motion if the motion alleges one or more of the following reasons:
- mistake, surprise, or excusable neglect [Trial R. 60(B)(1)]
- any ground for a motion to correct error, including newly discovered evidence, which by due diligence could not have been discovered within the time to file a motion to correct error [Trial R. 60(B)(2)]
- fraud, misrepresentation, or other misconduct by an adverse party [Trial R. 60(B)(3)]
Otherwise, a child may file a Trial Rule 60(B) motion within a “reasonable time” after the entry of judgment or order if the motion alleges the judgment is void [Trial R. 60(B)(6)] or for any other reason justifying relief that would not fall under one of the previously-discussed reasons [Trial R. 60(B)(8)].
Except where the judgment is void, the motion must allege a “meritorious claim or defense.” In other words, the child must make a prima facie showing that s/he had a defense to the delinquency adjudication.
Here is a list of the most common claims one may make in a Trial Rule 60(B) motion in a delinquency proceeding:
- Ineffective assistance of counsel (“IAC”): this is probably the most common claim made. Depending on the claim, several of the enumerated 60(B) reasons could apply. If the claim is the attorney violated professional norms, the National Juvenile Defense standards, etc., it could fall under Subsection (B)(1) as well as (B)(8).
- The admission was not knowing and voluntary: if the record does not show that the child knowingly and intelligently waived his rights, or if there was no factual basis for the admission, etc., one could argue the judgment is void under Subsection (B)(6). One could also argue this alternatively as an IAC claim under Subsections (B)(1) and (B)(8).
- Newly discovered evidence: if the evidence is discovered within 30 days from the disposition, this claim must be raised in a motion to correct error. Otherwise, it can be raised under Subsection (B)(2).
- Brady violation or other misconduct by the State: this claim should be raised under Subsection (B)(3). Any violation of professional norms committed by the prosecutor would also fit under Subsection (B)(3).
- Lack of counsel: if the child was not provided counsel at every stage of the proceedings, this claim falls under Subsection (B)(6).
The Trial Rule 60(B) process, however, cannot be used as a substitute for direct appeal. So only claims that are not available on direct appeal may be raised.
Appellate counsel may wonder whether s/he is required to litigate Trial Rule 60(B) claims that are not meritorious, but the child wishes to raise. Because these cases will come to counsel most often through appointment from the court, our Supreme Court’s opinion in Mosley v. State, 908 N.E.2d 599 (Ind. 2009), makes clear that appointed counsel has a professional obligation to provide clients with meaningful review by the judiciary. Because the child’s Trial Rule 60(B) claims may be forever foreclosed if not raised before the direct appeal in admission cases, appellate counsel has a duty to pursue those claims if the child wishes to do so.
The State Public Defender’s office has discretion, by statute and by court rule, to choose not to litigate non-meritorious claims; appointed counsel does not. If, after thoroughly advising the child of the merits of the 60(B) and direct appeal claims, the child still wishes to pursue relief through Trial Rule 60(B), appointed counsel is obligated to do so.
Finally, here are a list of some delinquency cases that utilized the Trial Rule 60(B) process, in order to observe how the claims were raised and reviewed on appeal:
- S.T. v. State, 764 N.E.2d 632 (Ind. 2002) (applied the Strickland standard to IAC claims); but see A.M. v. State, 109 N.E.3d 1034 (Ind. Ct. App. 2018), trans. pending (held the lesser Baum standard applied, but the Supreme Court is most likely granting transfer).
- A.S. v. State, 923 N.E.2d 486 (Ind. Ct. App. 2010) (holding waiver of right to counsel was not knowing and voluntary; noting heightened burden on State in delinquency proceedings with respect to waiver of rights).
- J.A. v. State, 904 N.E.2d 250 (Ind. Ct. App. 2009) (affirming Trial Rule 60(B) process as path to raise IAC claim in delinquency proceedings).
- N.M. v. State, 791 N.E.2d 802 (Ind. Ct. App. 2003) (holding en masse advisement of right to counsel did not equal knowing waiver of that right).
- S.E. v. State, 744 N.E.2d 536 (Ind. Ct. App. 2001) (holding sufficiency of the evidence cannot be raised through Trial Rule 60(B) motion).