It has long been held that adults wishing to challenge their guilty pleas had to do so through a petition for post-conviction relief; such challenges were not available to them on direct appeal. See Tumulty v. State, 666 N.E.2d 394 (Ind. 1994). Thus, when a criminal defendant pleads guilty and wishes to raise challenges to both his guilty plea and sentence, he must first challenge his sentence through the direct appeal process. Once the appellate process is concluded, he can raise any challenges to his guilty plea through the post-conviction process. See Collins v. State, 817 N.E.2d 230 (Ind. 2004).
Through dicta in a handful of cases, the Indiana Court of Appeals created a similar procedure for juveniles in Indiana wishing to challenge their delinquency admissions and resulting placements through Indiana Trial Rule 60(B). But the Indiana Supreme Court had never definitively approved of this procedure. Also, unlike criminal defendants in Indiana who are provided counsel at public expense to assist them in the post-conviction process, juveniles only had the assistance of counsel during the Trial Rule 60(B) process if they were housed in a D.O.C. facility.
In January 2019, the Indiana Supreme Court handed down its decision in J.W. v. State, ___ N.E.3d ___, 2019 Ind. LEXIS 2 (Ind. 2019). For the first time, the Court outlined the process available to juveniles after they have entered agreed delinquency adjudications.
If you are an appellate attorney who handles juvenile delinquency appeals, here is a helpful checklist of the steps you must take when you receive one of these cases.
- When you first receive the appeal, you must determine whether the child was adjudicated a delinquent after a factfinding hearing or if the child entered an admission. If the child was adjudicated a delinquent by the juvenile court after a factfinding hearing, then proceed like normal on the direct appeal; J.W. does not change the process in those cases. However, if the child entered an admission, proceed to the next step.
- The Court in J.W. held that before children who have entered admissions can pursue their constitutional right to appeal, they must first assert any and all Trial Rule 60(B) claims concerning the illegality of their admissions. This would include issues such as the “voluntariness” of the admission and the ineffectiveness of counsel. But usually that determination cannot be made in the short amount of time appellate counsel has between receiving the appointment and the deadline for filing the notice of appeal. Thus, counsel should timely file the notice of appeal, and then begin immediately investigating potential Rule 60(B) claims with your client while you wait for the record on appeal to be prepared.
- Once counsel has completed the investigation and advised the child on the merits of both the Trial Rule 60(B) and disposition issues, the child must then decide how s/he wishes to proceed. If the child would like to challenge the illegality of his admission, appellate counsel should file a “J.W. petition,” which is very similar to a Davis/Hatton petition. Basically, the petition asks the Court of Appeals to stay the appeal and allow the child to return to the juvenile court to litigate the Trial Rule 60(B) claims.
- What is most encouraging about the Court’s opinion in J.W. is that it affirms that juveniles have the right to counsel during the Trial Rule 60(B) process. What is tricky is that due to the nature of most Trial Rule 60(B) claims, appellate counsel may be responsible for litigating the Trial Rule 60(B) claims. In most cases, trial counsel cannot litigate the claims because s/he may be alleged ineffective and/or may need to testify as a witness at the hearing.
- If the child is unsuccessful in receiving relief after the Trial Rule 60(B) proceeding, appellate counsel now can proceed on appeal, raising disposition issues as well as the claims raised in the Trial Rule 60(B) proceeding.
The Court warned that if appellate counsel attempts to raise any claim regarding the illegality of the child’s admission on direct appeal, the entire appeal will be dismissed without prejudice. This is true even if the appeal contains claims that may otherwise be properly heard. Moreover, if appellate counsel proceeds on appeal without first litigating any available Trial Rule 60(B) claims, the child may be forever foreclosed from raising those claims.
In Part 2, I will address why it may ultimately be appellate counsel’s responsibility to litigate Trial Rule 60(B) motions on behalf of their juvenile clients.