Friend of the Indiana appellate and post-conviction advocate

PCR Petition Filed on New Proceeding After Relief Granted is NOT a Successive PCR

In Indiana, criminal defendants have a right to collaterally attack their convictions and sentences through the post-conviction process. Normally a petition for post-conviction relief (“PCR petition”) is filed after the direct appeal proceedings have concluded.

In the PCR petition, defendants can raise claims that were not otherwise known or available on appeal. PCR petitions are also the preferred avenue for challenging prior counsel’s ineffectiveness.

Criminal defendants usually get only one bite at the post-conviction apple, and they are entitled to a review of their case by the State Public Defender’s office if they are facing present penal consequences as a result of the conviction being attacked. If the defendant is unsuccessful in post-conviction proceedings, federal habeas proceedings and the clemency process may be his only remaining avenues for relief.

With one exception. Under very limited circumstances, a criminal defendant who has already litigated a PCR petition may seek permission from the Indiana Court of Appeals to file a second, or successive, PCR petition. Usually such requests are granted only when the defendant can show new evidence that has been discovered since the first post-conviction proceeding, a change in the law, or the incompetency of post-conviction counsel. Defendants do not receive the assistance of the State Public Defender in preparing such requests for permission, but they are entitled to assistance in the successive post-conviction proceeding in the event the request is granted.

But what if a criminal defendant was successful in obtaining relief either during the first post-conviction process or in subsequent habeas proceedings? For example, what if a federal court held that a defendant had received ineffective assistance of appellate counsel and was entitled to a new appeal? On that new appeal, what if new appellate counsel provided ineffective assistance? Would the defendant have to request permission to file a second PCR petition to raise a claim regarding new counsel’s ineffectiveness, or would he be able to file a PCR petition as if it is the first petition after the new appeal? And would the State Public Defender’s office be authorized to represent the defendant during the post-conviction process?

Those questions have not been answered, until today. In Troy Shaw v. State, our Supreme Court held that when a criminal defendant receives a new trial, new sentencing, or new appeal during or after the first post-conviction proceeding he need not obtain permission from the Court of Appeals to file a PCR petition raising claims related only to the new proceeding. Moreover, he is entitled to assistance from the State Public Defender’s office during the “new” post-conviction proceeding.

Admittedly, this will not affect a large number of cases, given how rare it is for defendants to receive any kind of relief during the post-conviction process. But for the lucky few, this decision will provide them an avenue and the assistance of counsel for collateral review of the new proceeding.

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