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HARRELL v. STATE
Harrell v. State of Indiana — Summary of Opinion (April 22, 1959)
Factual and Procedural Background
Jesse H. Harrell (petitioner) filed a petition for a belated appeal under Acts 1947, ch. 189, § 5, p. 625, being § 9-3305, Burns' 1956 Replacement, seeking permission to appeal his conviction in the Jefferson Circuit Court. The petition alleges that after the overruling of his motion for a new trial, counsel failed to prepare and file the transcript and assignment of errors (or a petition for extension of time) within the time allowed by the rules of this court. The petition attributes the failure to a misunderstanding between petitioner's local counsel and his Indianapolis counsel as to which counsel was to prepare the necessary papers. The petition did not include certified copies of all pleadings, orders and entries pertaining to the subject matter as required by Rule 2-35 of this court. Justice Jackson did not participate in the decision.
Legal Issues Presented
- Whether a petitioner seeking a belated appeal under § 9-3305, Burns' 1956 Replacement, must show cause to excuse the delay and make a prima facie showing of merit to the appeal.
- Whether a misunderstanding between co-counsel (local counsel and counsel in Indianapolis) about which counsel would prepare appeal papers constitutes sufficient cause to excuse the delay in filing a regular appeal.
Arguments of the Parties
Petitioner's Arguments
- Petitioner contends that the failure to perfect a timely appeal was due to a misunderstanding between his local counsel and his Indianapolis counsel regarding which of them would prepare the necessary papers for perfecting the appeal.
The opinion does not contain a detailed account of the respondent's legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State ex rel. Casey v. Murray (1952), 231 Ind. 74, 106 N.E.2d 911 | Establishes that a petitioner seeking a belated appeal must show cause to excuse the delay and must make a prima facie showing of merit to the appeal. | The court relied on this precedent to state the governing standard for belated appeals and to deny the petition where both excusing cause and prima facie merit were not sufficiently shown. |
Court's Reasoning and Analysis
The court began by identifying the governing statute for belated appeals (Acts 1947, ch. 189, § 5; § 9-3305, Burns' 1956 Replacement) and noted the controlling interpretation from State ex rel. Casey v. Murray: a petitioner must show cause to excuse the delay and make a prima facie showing of merit to the appeal. The petition alleged that counsel's misunderstanding caused the failure to file the transcript, assignment of errors, or a petition for extension of time within the rule period after the overruling of the motion for a new trial. The court stated it did not believe such a misunderstanding between petitioner's local counsel and Indianapolis counsel was sufficient to excuse the delay. The court also observed that the petition did not include certified copies of all relevant pleadings, orders, and entries as required by Rule 2-35 of this court. Taking the allegations together, the court concluded there was an insufficient showing of merit to the appeal to justify granting a belated appeal, and therefore denied the petition.
Holding and Implications
PETITION DENIED
Direct effect: The petition for a belated appeal filed by Jesse H. Harrell was denied, and no belated appeal was permitted. The court's decision was reached on the basis that the alleged misunderstanding between co-counsel did not sufficiently excuse the delay and that the petition failed to demonstrate a prima facie merit to the appeal and lacked required certified documents under Rule 2-35.
The opinion does not announce a new legal principle beyond its application of the established standard from State ex rel. Casey v. Murray; it applies that precedent to the facts of this petition.
1. APPEAL — Belated Appeal — Prima Facie Showing of Merit — Statutes — Cause to Excuse Delay. — To successfully petition for belated appeal under sec. 9-3305, Burns' 1956 Replacement, there must be cause shown to excuse the delay and there must be a prima facie showing made of merit to the appeal. p. 336.
2. APPEAL — Belated Appeal — Confusion of Counsel as to Preparation of Appeal — Insufficient Excuse for Delay. — A misunderstanding between petitioner's local counsel and Indianapolis counsel as to which one was to prepare the necessary papers for perfecting the appeal is not sufficient to excuse the delay in failing to file the regular appeal within time. p. 336.
PER CURIAM.
This is a petition for belated appeal under the provisions of Acts 1947, ch. 189, § 5, p. 625, being § 9-3305, Burns' 1956 Replacement.
The above statute was before this court in State ex rel. Casey v. Murray (1952), 231 Ind. 74, 106 N.E.2d 911, and at page 77 of 231 Ind., we said, "There must be cause shown to 1. excuse the delay, and there must be a prima facie showing made of merit to the appeal."
Petitioner requests permission to file a belated appeal from his conviction in the Jefferson Circuit Court because of the failure of his counsel to prepare an appeal within the time 2. allowed by the rules of this court after the overruling of his motion for a new trial. It is alleged in the verified petition filed herein that due to a misunderstanding between petitioner's local counsel and his Indianapolis counsel concerning which one was to prepare the necessary papers for perfecting the appeal, the time for filing expired without either the transcript or assignment of errors being filed, or a petition for extension of time within which to file the same being filed and granted. We do not believe this is sufficient to excuse the delay in failing to file the regular appeal within the time.
While the petition does not contain certified copies of all pleadings, orders and entries pertaining to the subject matter therein as required by Rule 2-35 of this court, it nevertheless appears from the allegations of the petition that there is an insufficient showing of merit to the appeal to justify the granting of a belated appeal.
For the foregoing reasons the petition is, therefore, denied.
Petition denied.
Jackson, J., not participating.
NOTE. — Reported in 157 N.E.2d 581.
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