Monday, September 10, 2012

White Direct Appeal Dismissed In Favor Of Post-Conviction Relief

The Indiana Court of Appeals has granted a so-called Davis Petition filed by Charlie White's attorney, which means his direct appeal has been dismissed while his attorney seeks post-conviction relief starting at the trial court level. As the Indiana Law Blog explains:

[T]he COA granted a Davis Petition on Friday, so the appeal has been dismissed for further proceedings in the trial court. Here is the Sept. 7th COA Order. In short, the direct appeal has been dismissed without prejudice so White can file a petition for post-conviction relief. Once the trial court rules on the PCR petition, then White can appeal the issues arising from, relating to the PCR and the issues he would have raised in his direct appeal.
An AP story inaccurately reports that White is only appealing three of his six felony convictions. As I understand it, the reason White's appellate attorney is seeking post-conviction relief instead of a direct appeal is to broaden the scope of issues that may be heard on appeal if the trial court does not grant White the relief he seeks, such as exculpatory evidence that was heard by the state Recount Commission that heard White's eligibility challenge decided in his favor by the state's Supreme Court. None of that evidence was heard by the trial court jury because White's trial attorney chose not to put on a defense. Judge Steven Nation refused to allow the Recount Commission's findings in White's favor entered as evidence at trial. An expert hired by White's attorney also publicly complained that he was not allowed by White's attorney to offer cell phone GPS evidence that he was prepared to testify definitively proved that White was sleeping at his ex-wife's home at nights, not at the condominium he had purchased as argued by the prosecution to prove that he committed vote fraud. The brief filed by White's attorney was filed prior to the granting of the Davis Petition in order to satisfy the deadline for submitting a brief for direct appeal in the event his Davis Petition had been denied and does not necessarily represent the issues that will ultimately be heard on appeal.

UPDATE: Here is a more blunt explanation for the post-conviction relief approach rather than a direct appeal:
Former Indiana Secretary of State Charlie White will have a chance to argue that his lawyer’s incompetence led to his conviction on six felony charges.
The Indiana Court of Appeals has allowed White to delay his appeal until he returns to the trial court to try to convince a judge that his attorney, former Marion County Prosecutor Carl Brizzi, provided such poor service that it hurt White’s case. The main issue, according to court documents, is that Brizzi refused to present a defense on White’s behalf.
If White is successful, the judge could overturn his convictions and order a new trial.
But even if White doesn’t get a new trial, he will be able to take the stand to discuss the case during a post-conviction relief hearing. He also could question Brizzi and witnesses in the case, said Joel Schumm, a law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.
Also, the AP has corrected its earlier story.

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