Important Change to Appellate Rule Regarding Petitions to Transfer

The end of the year usually brings new amendments to the court rules, and this year is no exception. One change to the Indiana Rules of Appellate Procedure is to Indiana Appellate Rule 57(D), dealing with responses to a petition to transfer.

Indiana Appellate Rule 57(D) currently reads, “A party may file a brief in response to the Petition no later than twenty (20) days after the Petition is served. Rule 25(C), which provides a three-day extension for service by mail or third-party commercial carrier, may extend the due date; however, no other extension of time shall be granted.”

Under the current rule, after a criminal defendant filed a petition to transfer, it was fairly common for the State to file a “notice regarding transfer” that included the following language: “Appellee, the State of Indiana, intends to file no separate opposition to Appellant’s Petition to Transfer. Rather, in opposition to transfer, the State will rely on its Brief of Appellee filed in the Court of Appeals, and the Court of Appeals’ decision. The State believes that Appellant raises no new arguments in his petition, and that the Court of Appeals’ decision and the Brief of Appellee are adequate to show that the petition to transfer should be denied. The State, of course, will prepare and file a response should this Court so request.” (Emphasis added).

Because the State claimed it was “waiving” its opportunity to file a response, the defendant was not given the opportunity to file a reply brief. But in Littleton v. State, Case No. 20A-CR-1159, Attorney Victoria Bailey Casanova asked for leave to file a reply brief after the State filed its standard “notice regarding transfer.” Attorney Casanova argued that the bolded language above is actually a response to the defendant’s petition because it characterizes the claims the defendant made in his petition to transfer as lacking novelty, it argues the State’s brief and the decision from the Court of Appeals provide support for denying the defendant’s petition, and it requests the Supreme Court to deny transfer.

In essence, the State’s “notice” included everything a response brief would have included but manipulated the process in such a way that it denied the defendant to have the last word, even though he is the one with the burden. Consequently, the Supreme Court granted the defendant’s request in Littleton and allowed the defendant the opportunity to file a reply brief.

The Supreme Court also approved a relevant amendment to Indiana Appellate Rule 57(D), which takes effect on January 1, 2022. The change to the rule adds the following language: “If a party does not intend to respond to the [petition to transfer,] the party may file a Notice that no response will be filed. The Notice may not include any argument or other commentary on the merits of the petition or case. The Notice will be treated as a brief in response if it includes anything other than a statement that no response will be filed.”

In other words, if the State’s notice regarding transfer includes any statement other than “no response will be filed,” the appellant is free to file a reply brief in support of transfer.