Extra Bites at the Post-Conviction Apple

If you are not familiar with the criminal justice system, Indiana’s system can seem confusing. Years ago I created a chart to help me explain the process to clients. The chart I created is shown below.

The chart accurately depicts the general flow of cases through the post-conviction process. But it does not reflect certain nuances of the process.

First, a brief description of the process itself. Most people know what a trial is and, at least generally, what happens during a trial. The vast majority of criminal cases never go to a trial; instead, they are resolved through a guilty plea. For those that do go to a trial, not all of them will be decided by a jury. Sometimes the defendant elects to have his guilt or innocence decided by a judge at a bench trial.

But for the small number (less than 5%) of cases that are tried to a jury, most result in a conviction. After the defendant is sentenced, he has a constitutional right in Indiana to take a direct appeal. The purpose of a direct appeal is to correct errors that occurred during the trial. A defendant is not entitled to a perfect trial, only a fair one. So sometimes errors may occur during trial but are considered harmless and do not affect the jury’s verdict or the judge’s sentence.

Because the focus of the direct appeal is to correct substantial errors that occurred during the trial process, the appellate courts consider only the evidence and information contained within the “four corners'“ of the record. If evidence was not presented at trial or information was not included somewhere in the record on appeal (the transcript, exhibits, and trial court file of all pleadings, orders, etc.), it cannot be considered on appeal.

The overwhelming majority of direct appeals in Indiana result in no relief for the defendant. So the next step usually taken by the defendant is to file a petition for post-conviction relief. During this process, the case returns to the trial court, usually in front of the same judge who presided over the trial. The focus of the post-conviction process is different than the direct appeal process. In the post-conviction process, the defendant is challenging the fairness of the trial proceedings. Common claims raised during this process include the following: my trial or appellate attorney did a bad job representing me; there is new evidence showing I am innocent; the State failed to turn over evidence that would have been helpful to me at trial, etc.

Unlike on direct appeal, during the post-conviction process the defendant can present evidence (testimony, exhibits, etc.) that is not in the record on appeal to bolster his claims. But he cannot raise claims that have been, or should have been, raised earlier. If he is unsuccessful in getting relief, he can appeal.

If the post-conviction process was not successful, the defendant may have the opportunity to seek relief in federal court through filing a writ of habeas corpus. During that process, the defendant is challenging his detention as a violation of federal law or the U.S. Constitution. There are several procedural roadblocks that can derail defendants during the habeas corpus process, and it rarely affords the defendant relief. But in many situations it provides relief where state proceedings failed to do so.

I counsel clients that defendants usually only get one proverbial bite at the post-conviction apple. But there is an opportunity for a second bite at the apple. Recognizing that the law changes from time to time, that science is ever-evolving, and that new information can come to light years and even decades later, Indiana provides defendants with an opportunity to file a successive post-conviction relief petition. Indiana Post-Conviction Rule 1(12) lays out the successive post-conviction process. But essentially a criminal defendant who has already litigated a petition for post-conviction relief must ask and receive permission from the Indiana Court of Appeals before filing a successive (second, third, fourth, etc.) petition for post-conviction relief.

Last week, the Court of Appeals in a published opinion provided some helpful procedural guidelines for post-conviction practitioners. McKinley Kelly was a child when he was involved in a double murder. Since then, Kelly has weaved his way through the post-conviction and habeas processes I outlined above. Readers should refer to the opinion to get a better understanding of how this process works in practice.

But I want to highlight the successive post-conviction process Kelly undertook. Beginning in 2005, the U.S. Supreme Court issued several decisions related to harsh sentences for juvenile offenders. Based on this change in the case law, Kelly, without counsel, asked the Court of Appeals for permission to file a successive petition for post-conviction relief. In his request, Kelly raised two issues: that his lengthy sentence violated the Eighth Amendment to the U.S. Constitution and Article 1, Section 16 of the Indiana Constitution; and the sentence was inappropriate under Indiana Appellate Rule 7(B). Kelly’s request was granted, and the State Public Defender entered her appearance to represent Kelly.

Attached to the petition requesting permission to file a successive petition for post-conviction relief, the petitioner must attach a proposed petition for post-conviction relief. If the request is granted, the proposed petition is forwarded to the court of conviction and filed. In the post-conviction court, Kelly’s counsel amended the petition Kelly had prepared by adding additional claims, all related to Kelly’s lengthy sentence. An evidentiary hearing was eventually held on the amended petition, and Kelly was denied relief.

On appeal from the denial, the Court of Appeals held that any claim Kelly failed to raise in his petition to the Court of Appeals seeking permission to file a successive petition for post-conviction relief was waived because only those claims the Court of Appeals had initially authorized could be heard by the successive post-conviction court.

Kelly complained that prohibiting petitions from amending their successive post-conviction claims later would disadvantage indigent petitioners, who often prepare their requests for permission without the assistance of counsel, as Kelly did. Under Indiana Post-Conviction Rule 1(12), the State Public Defender does not begin representation of the successive post-conviction petitioner until after permission has been granted to file the successive petition.

In response to Kelly’s complaint, the Court of Appeals provided some helpful procedural guidance for petitioners who find themselves in this situation. The Court of Appeals noted that the petitioner who wishes to add more claims to his successive post-conviction relief petition should return to the Court of Appeals and seek permission to amend his initial request for permission to add the new claims.

PRACTITIONER TIP: Kelly is the first case I am aware of that discusses the opportunity to file such an amendment. If you are representing a criminal defendant on a successive petition for post-conviction relief and discover new claims, you cannot simply amend the petition for post-conviction relief. Instead, you must return to the Court of Appeals and file a request to amend the petition for permission to file a successive petition for post-conviction relief to add the new claims. If the claims are not authorized by the Court of Appeals, they will be deemed to be waived.