Understanding Indiana's Post-Conviction Relief ("PCR") Remedy

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A Blog on Indiana’s Post-Conviction Relief Statute

Many times throughout the week our firm is inundated with calls requesting help for themselves or a loved one who has just received a conviction and sentence for a criminal offense. Often times, people call in desperation, hoping that we might be able to find something that was done improperly by the State of Indiana or the judge presiding over the case. Often times, the paramount question quickly becomes, is Post-Conviction Relief the right avenue for them to take? Or, is a direct appeal appropriate? Timing is usually the issue.
Typically, a criminal case is settled by way of a guilty plea and/or a trial, whether by jury or by bench. A guilty plea can be directly appealed if the sentence was not set in stone by the plea and there were open terms to argue over. However, a guilty plea can also be directly challenged through the post-conviction relief remedies as well. Typically, following a trial, a direct appeal must be satisfied first to preserve issues and raise fundamental errors that occurred during the trial. Then, and only then, can post-conviction relief be sought.
The main, fundamental differences between post-conviction relief filings and direct appeals are, but are not limited to: (1) there are strict timelines that must be followed for direct appeals, while that isn’t the case with post-conviction relief filings, and (2) appeals are limited to the evidence raised at trial only, while post-conviction relief filings can raise and introduce new evidence. However, there are other procedural differences as well.
The confusion over which relief is best often lies in whether or not an appeal should be filed or if post-conviction relief is the right avenue. In fact, post-conviction relief (PCR) is not intended as a substitute for an appeal of a defendant’s conviction and/or sentence. For the most part, PCR is meant to “take[ ] the place of all other common law, statutory, or other remedies . . . available for challenging the validity of the conviction or sentence and shall be used exclusively in place of them (with few exceptions).”
This blog will focus on post-conviction relief only.
Indiana actually has an entire section of the legislative code devoted to Post-Conviction Remedies only. To read them in their entirety, click here.
Post-Conviction Relief is only available in a select set of circumstances, and typically takes place after all appellate avenues have been exhausted after a trial or directly following a guilty plea with open terms. However, post-conviction relief can be filed before or during an appeal, but the appeal typically has to be stayed, or postponed for the post-conviction relief to run its course.
Nevertheless, Rule PC1(a) states that “[a]ny person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims:
(1)    That the conviction or the sentence was in violation of the Constitution of the United States or the constitution or laws of this state;
(2)    That the court was without jurisdiction to impose sentence;
(3)    That the sentence exceeds the maximum authorized by law, or is otherwise erroneous;
(4)    That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(5)    That his sentence has expired, his probation, parole or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint; or
(6)    That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy;
may institute at any time a proceeding under this Rule to secure relief.”
If you are in custody for a conviction and you are challenging the conviction and/or sentence, Rule PC1(c) states that applying for PCR does not suspend your right to be brought before a judge to confront the allegations, otherwise known as habeas corpus. Therefore, no matter where you file for PCR, the judge will transfer the case immediately to the court where the conviction was entered, and no matter how the petition is labeled, it will be treated as a PCR.
The entire process starts by filing a verified petition with the clerk of the court where the conviction took place — unless, you are challenging an inappropriate revoking of your parole (that is done in the county where you are incarcerated).
In terms of formalities, you must file three copies of the petition with the clerk and no deposit or filing fee will be required. Additionally, as part of the petition, the petitioner must swear under oath that the petition is correct, authentic, and that the petition includes all grounds for relief. According to statute, if you fail to raise all of the issues you are seeking a remedy for, you waive the ability to raise them again with rare exceptions.
Your petition will then be sent to the prosecutor’s office and the Attorney General’s office for review. There, if you have not hired an attorney privately, it will be determined if you qualify for public assistance.
Within the first ten (10) days, the petitioner can request a change of judge, stating the reasons why the judge is biased or prejudiced. Assuming that doesn’t take place, typically, within thirty (30) days from the filing date (or within a “reasonable time”), the State (in non-capital cases) or the Attorney General (in capital cases), will respond, by written motion, stating the reasons why the petition and relief should not be granted. Furthermore, the petitioner has sixty (60) days in which to amend their petition if necessary (or with court approval an extension of time can be granted).
If the court determines, by way of reviewing the petition, pleadings, interrogatories, depositions, admissions, stipulations of facts, and/or affidavits submitted, that the petition should be granted on its merits as there is “no genuine issue of material fact,” the judge can rule as a matter of law in favor of the petitioner. Or, the judge may require an oral argument and/or hearing on the matter to make a final decision.
A PCR hearing is heard directly by a judge and never by a jury. The same rules of evidence apply to PCR hearings as in regular criminal cases, but the standard of proof is much, much lower — preponderance of the evidence. Which, in layman’s terms, means more probable than not, and the burden is on the petitioner, not the State of Indiana.
The judge, after reviewing all the evidence, will make findings of facts and conclusions of law and issue a final order. If the petitioner is ruled against, an appeal can be filed through the civil court process, unless the original sentence was for the death penalty (then it goes directly to the Indiana Supreme Court).
In certain circumstances, even if you failed to file a timely direct appeal and/or a Motion to Correct Errors, the courts may allow you to file what is called a “Belated Notice of Appeal” and/or a “Belated Motion to Correct Error.” Rule PC 2 directly addresses whether or not this may be an option for you before filing a PCR itself.
As anyone can see, filing for PCR or an appeal is an incredibly daunting process. And, given the strict guidelines to follow and timelines to meet, it almost always makes sense to have a lawyer help you through the process. A competent criminal defense attorney can talk you through your options and can assist you with any post-conviction relief you may be seeking — by way of an appeal or a PCR. However, it’s essential that you act fast, as timing can change your options.
If you feel that you or a loved one has been slighted by the criminal process, give the attorneys at Banks & Brower, LLC a call today. As former prosecutors they have the experience to help you through your request for legal relief. Call us today at 317.870.0019, we answer the phone 24/7/365. Or, send us an email at info@banksbrower.com.