A Criminal Conviction Does Not Always Mean the Fight Is Over
A guilty verdict or guilty plea can feel final. But sometimes serious problems with a criminal case do not become apparent until after the conviction.
An attorney may have failed to investigate critical evidence. A witness who should have testified may never have been called. Important evidence may have gone undiscovered. A defendant may have received incorrect advice before accepting a guilty plea. Or another constitutional violation may have affected the conviction or sentence.
Indiana's post-conviction relief process provides a way for eligible people to challenge convictions and sentences based on issues that often cannot be properly addressed through a direct appeal.
The Law Office of Mark Nicholson represents people seeking post-conviction relief in Indianapolis and throughout Indiana.
Post-conviction cases can be complicated. The person seeking relief generally bears the burden of proving why the conviction or sentence should be disturbed. Simply believing the trial was unfair is not enough. A successful petition requires identifying a legally recognized basis for relief and developing evidence to prove it.
If you believe something went seriously wrong with your criminal case, contact the Law Office of Mark Nicholson to discuss whether you may have grounds for post-conviction relief.
What Is Post-Conviction Relief in Indiana?
Post-conviction relief, commonly called PCR, is a procedure that allows a person convicted of a crime to challenge a conviction or sentence based on certain issues that were not—and sometimes could not have been—properly resolved through a direct appeal.
Indiana post-conviction proceedings are governed primarily by Indiana Post-Conviction Rule 1.
PCR is not simply a second trial or another opportunity to make the same arguments that were unsuccessful the first time.
Instead, post-conviction proceedings can provide a method of developing evidence outside the original trial record and litigating constitutional or other issues affecting the validity of the conviction or sentence.
Depending on the circumstances, a successful PCR proceeding can result in significant relief, potentially including a new trial, a new sentencing proceeding, or other appropriate relief.
What Is the Difference Between an Appeal and Post-Conviction Relief?
A direct appeal and post-conviction relief are different proceedings.
Direct Appeal
A direct appeal generally asks an appellate court to review alleged errors based on the record created in the trial court.
For example, appellate counsel might argue that the trial judge improperly admitted evidence, incorrectly instructed the jury, or committed another reversible legal error.
The appellate court generally reviews the existing record. It does not conduct a new trial where witnesses are called and new evidence is presented.
Post-Conviction Relief
A post-conviction proceeding occurs in the trial court and can provide an opportunity to develop evidence that was not part of the original trial record.
That distinction is especially important for claims involving ineffective assistance of counsel.
Suppose a defendant argues:
"My lawyer never interviewed the witness who could have proved my defense."
The appellate record may show nothing about that witness because the witness never testified.
A PCR proceeding can provide a mechanism for investigating and presenting evidence concerning what the witness would have said, what the attorney knew, why the attorney did or did not investigate the witness, and whether the failure affected the outcome.
That is one reason some constitutional claims are particularly suited for post-conviction proceedings.
Ineffective Assistance of Counsel in Indiana
One of the most significant grounds for seeking post-conviction relief is ineffective assistance of counsel.
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to assistance of counsel. But having a lawyer's name on the case is not necessarily enough. The Constitution requires effective assistance of counsel.
Claims of ineffective assistance are generally evaluated under the two-part standard established by the United States Supreme Court in Strickland v. Washington.
A petitioner generally must establish both:
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Deficient performance: The attorney's representation fell below the applicable standard of reasonable professional performance; and
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Prejudice: The attorney's deficient performance affected the case sufficiently to satisfy the constitutional standard for prejudice.
This is an intentionally demanding test.
An unfavorable result does not automatically mean the attorney was ineffective. Courts generally give considerable deference to reasonable strategic decisions made by defense attorneys.
The question is whether counsel's performance was constitutionally deficient and, if so, whether the deficiency prejudiced the defendant.
Indiana follows Strickland, and one of the first cases in Indiana to apply the Strickland standard was Elliot v. State, 465 N.E.2d 707 (Ind. 1984).
Examples of Potential Ineffective Assistance of Counsel
Every case is different, but potential ineffective-assistance claims can arise from allegations that defense counsel failed to:
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Adequately investigate the allegations;
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Investigate a viable defense;
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Locate or interview important witnesses;
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Call important witnesses at trial;
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Investigate physical or forensic evidence;
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Obtain an appropriate expert witness;
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Challenge questionable expert testimony;
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File a potentially meritorious motion to suppress;
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Challenge an unlawful search or seizure;
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Properly investigate a confession;
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Object to inadmissible evidence;
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Object to improper prosecutorial argument;
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Request an appropriate jury instruction;
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Object to an improper jury instruction;
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Properly investigate mitigating evidence before sentencing;
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Present important mitigating evidence at sentencing;
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Properly communicate a plea offer;
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Correctly advise the defendant concerning a guilty plea; or
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Properly advise the defendant concerning significant consequences of a plea.
The existence of one of these circumstances does not automatically establish ineffective assistance.
The attorney handling the PCR case must examine what happened, determine whether counsel's conduct was unreasonable under the circumstances, and analyze whether the alleged error caused the legally required prejudice.
My Lawyer Didn't Call My Witness. Can I Get a New Trial?
Possibly, but simply identifying a witness who did not testify generally is not enough.
A PCR attorney needs to investigate questions such as:
Who was the witness?
What did the witness actually know?
Did the original attorney know about the witness?
Was the witness available?
What would the witness have testified to?
Was there a strategic reason for not calling the witness?
Would the testimony have helped the defense?
Could the testimony have hurt the defense in another way?
Could the missing testimony have affected the outcome?
Post-conviction litigation requires turning the allegation—"my attorney should have called this person"—into admissible evidence capable of satisfying the petitioner's burden of proof.
Ineffective Assistance During Plea Negotiations
Post-conviction relief is not limited to people who were convicted after jury trials.
People who pleaded guilty may also have potential PCR claims.
A guilty plea has serious consequences, and defense counsel has important responsibilities when advising a client about whether to accept or reject a plea agreement.
Potential issues can arise when an attorney allegedly failed to communicate a plea offer, provided materially incorrect advice, failed to investigate sufficiently before advising the client to plead guilty, or otherwise rendered constitutionally ineffective assistance in connection with the plea.
A defendant's later regret about accepting a plea agreement is not enough.
The circumstances surrounding the plea and the attorney's representation must be carefully evaluated.
Can New Evidence Support Post-Conviction Relief?
Potentially.
Newly discovered evidence can sometimes provide a basis for post-conviction relief, but the legal standard is considerably more demanding than simply finding evidence that was not introduced at trial.
The court will consider the nature of the evidence, why it was not previously available, its credibility and materiality, and whether it meets the legal requirements necessary to justify relief.
Examples might involve a previously unavailable witness, new scientific or forensic information, evidence undermining important testimony, or other evidence discovered after the conviction.
The specific facts matter enormously.
What Happens During an Indiana PCR Case?
A post-conviction case begins with a verified petition for post-conviction relief.
Under Indiana's rules, the petition is generally filed with the clerk of the court where the conviction occurred.
But filing the petition is only the beginning.
A properly developed PCR case may require reviewing:
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Charging documents;
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Police reports;
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Probable-cause affidavits;
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Discovery from the original criminal case;
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Trial transcripts;
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Suppression-hearing transcripts;
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Sentencing transcripts;
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Exhibits;
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Depositions;
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Plea agreements;
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Guilty-plea hearing transcripts;
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Appellate briefs and opinions;
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Communications with prior counsel when available;
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Expert reports;
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Medical or forensic evidence; and
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Other records relevant to the asserted grounds for relief.
Additional investigation may also be necessary.
Witnesses may need to be located and interviewed. Experts may need to evaluate evidence. Prior defense counsel may become an important witness concerning an ineffective-assistance claim.
Eventually, disputed PCR claims may proceed to an evidentiary hearing where witnesses testify and evidence is presented.
Who Has the Burden of Proof in an Indiana PCR Case?
The petitioner does.
Under Indiana Post-Conviction Rule 1, the person seeking relief generally bears the burden of establishing the grounds for relief by a preponderance of the evidence.
That is an important distinction.
The State does not have to prove the defendant guilty all over again beyond a reasonable doubt.
Instead, the petitioner must prove the legal and factual grounds supporting post-conviction relief.
That makes careful investigation and preparation especially important.
Is There a Deadline for Filing Post-Conviction Relief in Indiana?
Indiana does not have a general state-court statute of limitations for filing a petition for post-conviction relief.
But that does not mean you should wait.
An unreasonable delay can create serious problems, including a potential laches defense when the delay prejudices the State's ability to retry the case.
Delay can also make a case practically more difficult.
Witnesses disappear. Memories fade. Records can become harder to obtain. Evidence may be lost or destroyed.
There are also separate and potentially strict deadlines governing federal habeas corpus proceedings. A person considering both state post-conviction relief and potential federal relief should obtain legal advice promptly concerning how those deadlines may apply.
Do not assume that because Indiana PCR does not have a general filing deadline, there is no urgency.
Can I File a Second Post-Conviction Petition?
Filing another PCR petition after a previous post-conviction case is substantially more complicated.
Under Indiana Post-Conviction Rule 1, a person seeking to pursue a successive petition for post-conviction relief must first obtain authorization through the procedure established by the rule.
The petitioner must establish a reasonable possibility that they are entitled to post-conviction relief before the successive petition will be authorized for filing.
If you have already pursued post-conviction relief, tell your attorney immediately. Your previous PCR proceedings, appellate history, claims previously raised, and claims you now want to raise will be important to determining the available options.
Can Post-Conviction Relief Get My Conviction Overturned?
It can, but relief is never guaranteed.
Depending on the claim and circumstances, successful post-conviction litigation may potentially result in:
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A conviction being vacated;
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A new trial;
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A guilty plea being set aside;
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A new sentencing proceeding;
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A sentence being corrected; or
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Other relief authorized by law.
Winning PCR does not necessarily mean that criminal charges disappear permanently.
For example, when a conviction following trial is vacated, the State may potentially retry the defendant depending on the circumstances.
That is one of many reasons the potential consequences of PCR should be evaluated with an attorney before proceeding.
What Evidence Should I Give a Post-Conviction Lawyer?
When meeting with a PCR attorney, provide as much information about the original case as possible.
Helpful materials may include:
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The case number;
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County of conviction;
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Charging information;
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Plea agreement;
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Sentencing order;
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Trial transcripts;
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Appeal briefs;
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Appellate opinions;
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Previous PCR petitions;
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Letters or communications with prior attorneys;
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Discovery;
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Witness information;
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Expert reports; and
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Documents relating to the issue you believe went wrong.
Do not worry if you do not possess every document.
One purpose of the initial case evaluation is determining what records exist and what additional materials may need to be obtained.
Why Hire an Attorney for an Indiana Post-Conviction Case?
PCR litigation is different from handling the original criminal prosecution.
The attorney must often reconstruct a case that happened years earlier and then determine whether something that occurred—or should have occurred—provides a legally viable basis for overturning a conviction or sentence.
That can require examining both what appears in the record and what is missing from it.
A PCR lawyer may need to investigate the original attorney's decisions, locate witnesses, examine old evidence, review thousands of pages of records, research constitutional issues, work with experts, question prior counsel, and present evidence at a hearing.
A good PCR case starts with a question:
What went wrong?
But it cannot end there.
The lawyer must determine whether what went wrong creates a legally recognized ground for post-conviction relief and whether sufficient evidence exists to prove it.
Frequently Asked Questions About Indiana Post-Conviction Relief
Is post-conviction relief the same as an appeal?
No. A direct appeal generally challenges errors using the existing trial-court record. PCR is a separate proceeding that can permit development of evidence outside the original record and is frequently used for claims such as ineffective assistance of counsel.
Can I seek PCR if I pleaded guilty?
Potentially. Indiana post-conviction relief is not limited to jury-trial convictions. Certain constitutional or other claims relating to a guilty plea may be raised through PCR.
Does losing my trial prove my attorney was ineffective?
No. An unfavorable result does not establish ineffective assistance. The petitioner must satisfy the applicable constitutional standard.
What if my attorney failed to investigate my case?
Failure to conduct an adequate investigation can potentially support an ineffective-assistance claim, but the circumstances must be investigated. A petitioner generally must establish deficient performance and the required prejudice.
Can I present new evidence during PCR?
Potentially. One important difference between direct appeals and PCR proceedings is the ability to develop evidence outside the original trial record when legally appropriate.
Is there a statute of limitations for Indiana PCR?
Indiana does not impose a general state-court filing deadline for PCR, but unreasonable delay may create a laches issue. Separate federal habeas deadlines can also apply, so obtaining legal advice promptly is important.
Can I file PCR without an attorney?
A person can proceed without privately retained counsel, but post-conviction law can be complicated. The Indiana State Public Defender may provide representation to certain indigent incarcerated petitioners when the requirements of the applicable rules are satisfied.
What if I already filed a PCR petition?
A successive PCR petition requires a different procedure and authorization under Indiana's Post-Conviction Rules. Tell your attorney about all previous PCR proceedings immediately.
Can I get a new trial through PCR?
Potentially. A new trial is one possible form of relief when a petitioner successfully establishes grounds requiring the conviction to be set aside.
Does winning PCR mean the charges are dismissed?
Not necessarily. Depending on the relief granted and circumstances, the State may potentially retry the case.
Your Conviction May Not Be the End of the Case
Criminal cases involve judges, prosecutors, defense attorneys, witnesses, police officers, experts, and forensic evidence.
Mistakes can happen.
Sometimes those mistakes are harmless. Sometimes they are significant enough to violate a defendant's constitutional rights and undermine the validity of a conviction or sentence.
The important question is not simply whether something went wrong.
The question is whether what went wrong provides a legally recognized basis for post-conviction relief—and whether it can be proven.
The Law Office of Mark Nicholson represents individuals seeking post-conviction relief in Indianapolis and throughout Indiana.
Speak With an Indiana Post-Conviction Relief Lawyer
If you believe ineffective assistance of counsel, newly discovered evidence, constitutional violations, or another serious problem affected your Indiana conviction or sentence, contact the Law Office of Mark Nicholson.
We can review the history of the case, determine what happened during the original proceedings, identify potential grounds for relief, and evaluate the evidence necessary to pursue a post-conviction claim.
Call 317-669-8972 to schedule a consultation with an Indiana post-conviction relief attorney.
