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Untimely Notices of Appeal: In re Adoption of O.R. one year later

Indiana Appellate Rule 9(A) states:

  • A party initiates an appeal by filing a Notice of Appeal with the Clerk . . . within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary . . . Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by P.C.R. 2.


The Rule’s mandatory language (“shall be forfeited”) suggested, and a significant body of case law held, that the failure to timely file a notice of appeal was fatal and deprived the Court of Appeals of jurisdiction over an attempted belated appeal. That changed with the Indiana Supreme Court’s decision in In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), in which the Court held that jurisdictional defects are not the same as legal errors. The Court stated: “[A]lthough a party forfeits its right to appeal based on an untimely filing of the Notice of Appeal, this untimely filing is not a jurisdictional defect depriving the appellate courts of authority to entertain the appeal.” The O.R. Court explained that the Court of Appeals could elect to forgive the failure to timely file a notice upon a finding of “extraordinary compelling reasons.”

The Supreme Court decided O.R. approximately one year ago, and several Indiana Court of Appeals opinions have applied this new test. The Court of Appeals published three of these opinions, one of which dismissed the appeal and two of which addressed the merits. Both cases that addressed the merits were criminal appeals.

In Satterfield v. State, 30 N.E.3d 1271 (Ind. Ct. App. 2015), the Court addressed an appeal regarding the denial of bail, noting that “It is the unique confluence of this fundamental liberty interest along with one of the most valued rights in our culture—the right to bail—that we conclude that Satterfield's otherwise forfeited appeal deserves a determination on its merits.”

In Morales v. State, 19 N.E.3d 292 (Ind. Ct. App. 2014), trans. denied, the Court elected to address the merits, noting that the defendant was pro se and filed his notice of appeal only one day late.

The Court of Appeals also applied O.R. in five unpublished decisions, two of which dismissed the appeal, two of which addressed the merits, and one of which first dismissed, then addressed the merits on rehearing. It is interesting to note that every case, published and unpublished, in which Court of Appeals addressed the merits was a criminal case. Of course, O.R. was not a criminal case, but the trend suggests that an appellant will need to show some sort of fundamental interest, such as liberty or the right to raise one’s child, to take advantage of the O.R. rule. Other factors that should help a tardy appellant’s case include minimal delay and otherwise diligent pursuance of the appeal.

In sum, despite the landmark nature of the O.R. decision, the relief allowed by the Court of Appeals when applying O.R. appears to be narrow, as the Court of Appeals seems to have taken to heart the Supreme Court’s “extraordinary compelling circumstances” requirement.

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