Defendant not at fault for failing to timely appeal

The Indiana Court of Appeals declined to hold a man at fault for the failure to file a timely notice of appeal, pointing to his attorney’s death from cancer shortly after the sentencing hearing.

Mark Jordan appealed the denial of his petition for relief under Indiana Post-Conviction Rule 2. He was convicted of burglary, theft and auto theft in January 2010 and sentenced June 4, 2010, to 23 years. At the time of the sentencing, Jordan indicated he wanted to appeal, but his attorney Frederick Work said the decision to appeal would be made after talking to Jordan’s family.

Jordan’s mother paid Work to handle the appeal, but on July 29, 2010, he was admitted to a hospital for surgery to treat a recurrence of cancer. He died Sept. 13, 2010. The only activity on Jordan’s case during this time was an August letter Jordan sent inquiring whether an appeal had been filed. No appeal was filed within the 30-day time period.

In 2012, when represented by counsel, Jordan filed his petition for post-conviction relief in order to file a belated appeal. The trial court denied his request without a hearing or specific findings.

“We decline to say that a post-conviction petitioner is at fault for failing to file a timely notice of appeal when his attorney becomes terminally ill shortly after the sentencing hearing, and the petitioner is incarcerated,” Judge John Baker wrote in Mark L. Jordan v. State of Indiana, 45A04-1212-CR-646.

The appellate judges found Jordan was not at fault for Work’s failure to timely file notice of appeal. Jordan was in prison and unaware of the circumstances, and his family believed that Work was preparing for the case during the time he was actually fighting cancer.