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09/21/87 RODNEY S. JORDAN v. STATE INDIANA

Filed: September 21, 1987.

RODNEY S. JORDAN, APPELLANT (PETITIONER BELOW),
v.
STATE OF INDIANA, APPELLEE (RESPONDENT BELOW)



Appeal from the Marion County Juvenile Division Cause No. J64-1263, The Honorable James W. Payne, Judge.

DeBruler and Dickson, JJ., Dissent. Shepard, C.j., concurs, with opinion. Givan, J., concurs without opinion.

PETITION FOR REHEARING

Comes now Rodney S. Jordan, Petitioner-Appellant, by counsel, Vickie Yaser of the Office of the State Public Defender, and, pursuant to the Indiana Rules of Court, A.R. 11 (A), respectfully petitions the Court to grant rehearing in this cause.

In support of this Petition, Jordan would show the Court as follows:

1. The Supreme Court of Indiana decided the case with a divided opinion filed September 1, 1987, granting the State's Petition for Transfer;

2. The opinion is adverse to Jordon in that it affirms the post-conviction court's summary denial of his Petition for Post-Conviction Relief;

3. The opinion is erroneous in that it wrongly decides a new question of law: whether due process requires that the post-conviction remedy procedure provided in Indiana Rules of Procedure, Post-Conviction Rule 1, be made available to a juvenile adJudged to be a delinquent child.

Wherefore, Jordan, by counsel, respectfully petitions the Court to grant rehearing in this cause, vacate the opinion filed September 1, 1987, and issue a new opinion affirming the availability of post-conviction remedies to delinquent juveniles.

[EDIT ]

SHEPARD, C.J., Concurring.

This action commenced when Rodney S. Jordan filed a petition for post-conviction relief by which he sought to set aside his 1965 adjudication of delinquency. The trial court denied his petition on the grounds that a determination of delinquency was not a conviction and that the post-conviction rules do not apply to delinquency matters. The Court of Appeals reversed, holding that they do. Jordan v. State (1986), Ind.App., 499 N.E.2d 759. We granted transfer and affirmed the trial court. Jordan v. State (1987)), Ind., 512 N.E.2d 407.

While I join in the decision to deny rehearing, I wish to record reasons somewhat different than those I held when we originally decided the case. I am inclined to agree with Justices DeBruler and Dickson, who Dissented from the Court's initial decision, that there must be some method by which a criminal defendant may challenge a prior adjudication of delinquency. In situations such as Jordan's, that adjudication constitutes a judicial determination that the child declared delinquent did commit the act which is the subject of the allegation. Ind.Code § 31-6-4-1. Thus, it was not enough for those of us in the majority to say that when a juvenile adjudication appears later in a presentence report that it is the history of criminal activity which is considered by the court and not the adjudication itself. The adjudication indicates that the history is correct. It elevates the history from allegation to fact.

Still, one may accept the idea that a remedy should be available without agreeing that the post-conviction rules are the appropriate means. Although the increasing formality of the juvenile system makes it look more and more like the criminal law system, both Judges and legislators continue to assert that there are important differences. The General Assembly has flatly declared that a delinquency adjudication may not be "considered a conviction of a crime," Ind. Code § 31-6-3-5(b). If this policy is to retain some vitality, we should be cautious about actions which cut the other way.

For these reasons, and because I think that other avenues such as Trial Rule 60 are still open to Jordan, I am not presently prepared to embrace use of our ...


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