
                        IN THE INDIANA SUPREME COURT



KOENIG, Jeffrey,                  )  Court of Appeals
                       appellant,  )  cause no. 49A04-0103-CR-115
           v.                     )
                                  )  Supreme Court
STATE OF INDIANA,                 )  cause no. 49S04-0201-CR-92
                       appellee.  )







                         ORDER GRANTING TRANSFER AND


                      REMANDING TO THE COURT OF APPEALS



      On August 29,  1997,  appellant  was  convicted  of  three  counts  of
robbery and three counts of criminal confinement.  His  concurrent  six-year
sentences on each count were suspended, except for time already served,  and
appellant was instead placed on probation.  Appellant  did  not  immediately
appeal those convictions.

      On April 6,  1999,  appellant’s  probation  was  revoked  and  he  was
ordered to serve the previously suspended sentences.  No timely  appeal  was
taken from this sentencing order either.

      On August 21, 2000, appellant filed a pro se  petition  seeking  post-
conviction  relief.   The  petition  alleged,  among  other   things,   that
appellant was denied a right to counsel.  In  support  of  that  contention,
appellant asserted that he wanted to appeal  the  revocation  of  probation,
but that the trial court had failed to appoint pauper counsel for him.   The
State of Indiana, through the Marion County Prosecutor, filed an  answer  to
the petition.  In its answer, the State asserted that  the  petition  should
be  dismissed  because  appellant  had  failed  to  exhaust  his   appellate
remedies.  Specifically, the State asserted that appellant’s remedy  was  to
seek leave to file a  belated  appeal  of  the  underlying  convictions,  as
procedurally  authorized  by  Post-Conviction  Rule  2,  section   1.    See
Appendix,  pp.  124-25  (“State’s  Answer”).   The  petition  seeking  post-
conviction relief was denied.

      Thereafter, on March  7,  2001,  the  Marion  County  Public  Defender
Agency did what the State had argued should have been done  –  it  filed  on
behalf of the appellant a motion seeking leave to file a belated  notice  of
appeal from the underlying convictions.  No objection was made by the  State
and the trial court granted that motion.  This appeal ensued.


      Ultimately, a brief of the appellant was filed  on  August  13,  2001.
The claims of error were directed to the underlying robbery and  confinement
convictions, not to the revocation of probation.  In response, the State  of
Indiana, through its  Attorney  General,  filed  a  motion  to  dismiss  the
appeal.  The  State  asserted  that  appellant  had  not  been  diligent  in
requesting an appeal from the underlying conviction, as  required  by  Post-
Conviction Rule 2, section 1(b).  The Court of Appeals  granted  the  motion
and dismissed the appeal.  The appellant filed a petition  seeking  transfer
of jurisdiction in accordance with Appellate Rules 56(B) and 57(B)(4).

      Evidence exists that would support a determination that appellant  was
not diligent in  pursuing  an  appeal  of  the  underlying  convictions  and
sentencing.  Appellant’s principal  interest  seemed  to  be  appealing  the
order revoking his probation.  Had the  State  made  that  argument  in  the
trial court, perhaps the  trial  judge  would  also  have  agreed  that  the
requirements of Post-Conviction Rule 2 had not been met.

      But in response to the appellant’s  petition  seeking  post-conviction
relief, the State expressly argued  to  the  trial  court  that  appellant’s
remedy was to file a motion seeking leave to file a belated  appeal  of  the
underlying judgment.  When appellant took the action invited by  the  State,
no objection was made to that motion.  The  trial  court  then  granted  the
appellant leave to file a late notice of appeal.  A transcript was  prepared
by the court reporter.  Counsel reviewed the record, formulated issues,  and
prepared and filed an appendix and a brief. Only then did the  State  raise,
for the first time, a claim that appellant was not diligent  in  seeking  an
appeal of the convictions and sentence.  The Court of Appeals dismissed  the
appeal on that basis.

      This result appears to be a significant departure  from  accepted  law
and practice.  See Ind. Appellate Rule 57(H)(6).  The  State’s  inconsistent
actions and failure to object to the motion seeking leave to file a  belated
notice of appeal warrant  the  appeal  being  reinstated.   Accordingly,  we
grant  transfer  and  remand  the  appeal  to  the  Court  of  Appeals  with
instructions to vacate its order granting the State’s motion to dismiss,  to
deny the motion, and to establish a briefing  schedule  for  review  of  the
appeal on the merits.

      The Clerk is directed to send a copy of this order to Hon. Sanford  M.
Brook, Chief Judge of the Court of Appeals; to  Steve  Lancaster,  Court  of
Appeals Administrator; to Janet Roberts Blue, Commissioner of the  Court  of
Appeals; to Hon. Alex Murphy; to the Attorney General  of  Indiana;  to  the
Indiana Public Defender; and to all counsel of record.


      Done at Indianapolis, Indiana this 30th day of January, 2002.



                                              ______________________________
                       Randall T. Shepard
                                  Chief Justice of Indiana

All Justices concur.
