Green v. State, 02A03-9202-CR-39
| Decision Date | 17 June 1992 |
| Docket Number | No. 02A03-9202-CR-39,02A03-9202-CR-39 |
| Citation | 593 N.E.2d 1237 |
| Parties | Kenneth L. GREEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, John A. England, Deputy Public Defender, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
A jury convicted Green of burglary and he declined to take a direct appeal. Two years later he petitioned pursuant to PC 2 for permission to file a belated praecipe and the court denied relief. This appeal followed.
Green contends the court erred in failing to conduct a hearing upon his petition and abused its discretion in denying relief. We disagree.
PC 2, Sec. 1 permits the filing of a belated praecipe upon a showing that the failure to file a timely praecipe was not due to the fault of the defendant, and the defendant has been diligent in requesting permission to file a belated praecipe.
The rule does not require the court to conduct a hearing, but we have determined that one should be held where the petition raises a genuine factual dispute concerning the existence of grounds for relief. Robinson v. State (1986) Ind., 493 N.E.2d 765, 767. Moreover, we hold that in determining the existence of a genuine dispute the court is entitled to consider the court's records in the case. A petitioner may not create a genuine factual dispute simply by the expedient of averring that what he previously said was untrue or that he was unadvised of something where the record clearly establishes the contrary. Gaboury v. Ireland Rd. Grace Br. Ch. (1983) Ind., 446 N.E.2d 1310. (This, of course, is not to say that a petitioner may not set up a matter cognizable in avoidance of what the record establishes as having occurred.)
Green argues that the failure to file a timely praecipe was not due to his fault because he was unaware that the time lines discussed at his sentencing were absolute, that he would not be able to pursue an ordinary appellate remedy once the time for appeal expired, and that failure to appeal would amount to a waiver of the issues that might have been raised.
In denying the petition without hearing, the court noted the advice to Green at sentencing and his response:
To continue reading
Request your trial
-
Boyle v. State
...should be held where the petition raises a genuine factual dispute concerning the existence of grounds for relief." Green v. State, 593 N.E.2d 1237, 1238 (Ind.Ct.App.1992), trans. denied. Where the trial court does not hold a hearing before ruling on a petition to file a belated notice of a......
-
Hull v. State
...should be held where the motion raises a genuine factual dispute concerning the existence of grounds for relief. Green v. State, 593 N.E.2d 1237, 1238 (Ind.Ct.App.1992). In determining the existence of a genuine factual dispute concerning the grounds for relief, the court is entitled to con......
-
Rasaki v. State
...should be held where the petition raises a genuine factual dispute concerning the existence of grounds for relief. Green v. State, 593 N.E.2d 1237, 1238 (Ind.Ct.App.1992), trans. denied. In determining the existence of a genuine dispute the court is entitled to consider the court's records ......
-
Amphonephong v. State, 02A03–1402–CR–88.
...the trial court to hold a hearing on a defendant's petition for permission to file a belated notice of appeal. See Green v. State, 593 N.E.2d 1237, 1238 (Ind.Ct.App.1992) (explaining that Post–Conviction Rule 2(1) “does not require the court to conduct a hearing, but [that] we have determin......