Public Defender of Indiana
One North Capitol, Suite 800
Indianapolis, IN 46204-2026
Telephone: (317) 232-2475

January 22, 2016

To Whom It May Concern:
In the course of my employment as a Deputy in the Office of the Indiana State
Public Defender since 1992, I represented Keith Cooper in proceedings for postconviction relief against his conviction for class A felony robbery in the Michael
Kershner case in Elkhart County, cause number 20001-9703-CF-00014. That
representation included the 2006 sentence modification in which Mr. Cooper's petition
was withdrawn and his sentence was modified to time served.
I was recently asked by Elliot Slosar, Mr. Cooper's current attorney, if Mr. Cooper
to renew-his-etiarlenge-to this conviction through litigation. My answer to 
 would-be-able 
the question is no, as follows:
Why Keith Cooper cannot challenge his conviction:
Indiana has three procedural avenues for challenging a criminal conviction: (1) a
direct appeal (either timely, or belated under Ind. Post-Conviction Rule 2); (2) an initial
Petition for Post-Conviction Relief under Ind. Post-Conviction Rule 1, § 2; and, (3) a
successive Petition for Post-Conviction Relief under Ind. Post-Conviction Rule 1, § 12.
Mr. Cooper had a timely direct appeal, Cooper v. State, No. 20A03-9801-CR-00010
(Ind. Ct. App. October 15, 1998), so that procedural avenue is closed.
An initial Petition for Post-Conviction Relief under P-C.R. 1, § 2 was filed by Mr.
Cooper in 1997 in Elkhart Circuit Court, cause number 20001-9703-CF-00014. This
petition was litigated in 2004, and was pending a decision when Mr. Cooper's sentence
was modified to time served on April 27, 2006. The online chronological case summary
includes the following entries for the sentence modification:
04/27/2006
04/27/2006

Converted Event
Red. Disp REDBD
Converted Event
State in court by Curtis T. Hill, Jr, Prosecuting Atty, & Vicki Elaine Becker, Chief DPA; Deft appears by William D.
Polanski, State PD, by conf call. Arguments heard on Deft's Motion for Modification of Sentence. Motion is granted;
Deft ordered released forthwith w/time served. (ORDER/COPY) (Sr Jdg Duffin) my 5-1-06 ORDER:
VA/BECKER/POLANSKY/MIAMI CORR FAC pm (RJO? Y) I JTS Minute Entry Date: 2006-04-27

 04/27/2006

Converted Event
Deft's Motion for Modification of Sentence having been granted, Deft, by counsel, now withdraws his Petition for PostConviction Relief. Cause ordered off active docket. (COPY) (Sr Jdg Duffin) my DISPOSED 5-1-06 ENTRY:
VA/BECKER/POLANSKY pm (DISPOSED: REDBD) (RJO? N)1JTS Minute Entry Date: 2006-04-27

The third entry shows the petition withdrawn, but does not specify that the
withdrawal was with prejudice, which would preclude further litigation. However, an
email from Mr. Cooper's post-conviction lawyer to the trial court judge, the Honorable
Gene R. Duffin, Senior Judge, sent on April 3, 2006 and re-sent on April 13, 2006,
clearly states that the withdrawal would be with prejudice (emphasis added):
As to Mr. Cooper, regarding the choice between having you grant the PCR
and Cooper taking his chances on further proceedings, or, withdrawing the
PCR with prejudice for a sentence reduction, he prefers sentence reduction,
as long as it is time served with no parole.
In addition to this express statement that withdrawal of the petition was
contemplated by Mr. Cooper as being with prejudice, thereby precluding further
litigation, it is implicit in the circumstances that the withdrawal was with prejudice.
Under the version of the statute controlling sentence modification in effect in 2006,
a trial court could not modify a sentence after more than one year had passed (which
applied to Mr. Cooper) unless the prosecuting attorney consented. Ind. Code 35-38-117 (see P.L. 2-2005, § 123 for 2006 version) (sentence modification after one year was
"subject to the approval of the prosecuting attorney").
Therefore, the modification of Mr. Cooper's sentence could only have been done
with the consent of the prosecuting attorney. It follows that the prosecuting attorney
would not have consented to the sentence modification absent the quid pro quo that the
withdrawal would be with prejudice, thereby rendering the conviction final and not
subject to further litigation. Thus, the procedural avenue of filing a Petition for PostConviction Relief under P-C.R.1, § 2 is closed.
The third procedural avenue, a successive Petition for Post-Conviction Relief
under P-C.R 1, § 12, is not available, because its prerequisite is litigating an initial
petition under P-C.R. 1, § 2 to completion, which Mr. Cooper did not do. See, e.g.,
Lacey v. State, 829 N.E.2d 518 (Ind. 2005), in which the petitioner filed a petition for
post-conviction relief, and then, while the initial petition was pending, filed a petition for
DNA testing. The State argued that the petition for DNA testing should be dismissed
because it was successive to the initial petition and therefore had to be filed as a
successive petition. The Court denied the motion to dismiss because the first petition
had not been adjudicated:
State contends that the DNA testing request was a "successive" petition for
post-conviction relief for which appellate court authorization was required for
it to be considered by the post-conviction court. It is clear that Lacey sought
the DNA testing in order to prosecute his then-pending petition for postconviction relief, and he did so without implicating our rule on successive

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 petitions. It would be a different matter if he had already litigated one
petition to conclusion. But here his request was simply part of discovery in
a proceeding in flerL He was entitled to file it without appellate court
authorization.
Lacey, 829 N.E.2d at 519 (emphasis added).
Moreover, P-C.R. 1, §12 clearly contemplates that the successive petition
procedure arises only after a first petition has been adjudicated on the merits, stating in
subsection (c) that "If the court authorizes the filing of the petition, it is to be (1) filed in
the court where the petitioner's first post-conviction relief petition was adjudicated . . . ."
Clearly Mr. Cooper cannot file a successive petition.
In sum, Indiana has three avenues for challenging a criminal conviction, and
none of them are available to Mr. Cooper. His conviction is final and not subject to
further litigation.
Sincerely,

William D. Polansky
Deputy Public Defender
WDP/jb

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