Keffer Hirschauer Indiana Law Firm Logo
Close this search box.
Keffer Hirschauer Indiana Law Firm Logo
put short code to menu here

Share this Article

Share this Article >

Indiana Post-Conviction Rules and Relief

In Indiana, a criminal defendant has limited opportunities to challenge a conviction or sentence. They may pursue a direct criminal appeal, sentence modification, clemency, or a pardon. They may also pursue post-conviction relief, a potentially viable but often overlooked legal process that allows a defendant to challenge the legality of some portion of the criminal trial, the judgment of conviction, or the sentence on legal grounds that were unknown or unavailable in the original trial or on direct appeal. The laws governing post-conviction relief are known as the Indiana post-conviction rules. These can be found in the Indiana Rules of Post-Conviction Remedies and detail certain relevant topics related to post-conviction remedies in Indiana, including eligibility, filing, pleadings, the hearing and judgement, appeal and more.  

The legal process of post-conviction relief includes elements of both criminal and civil law, and therefore it is a complicated legal proceeding. As a result, anyone who seeks this type of relief will require the skills of an experienced post-conviction attorney who is deeply familiar with the Indiana post-conviction rules and has successfully navigated the nuances of this complex legal proceeding in the past. The criminal defense team at Keffer Hirschauer LLP is made up of former deputy prosecutors who have an intimate knowledge of how the criminal justice system in Indiana works. By leveraging their past experience, our attorneys are well-suited to ably guide individuals through post-conviction relief proceedings. If you’d like to speak with an Indiana post-conviction relief attorney today, call Keffer Hirschauer LLP at 317-857-0160 or complete our online contact form to schedule a free consultation.  

The Grounds for Post-Conviction Relief 

In general, post-conviction relief allows for a criminal defendant to directly challenge the legality of a portion of their criminal trial, the judgment of their conviction, or the sentence they have been given. However, one can only present a challenge based on legal grounds that were either unknown or unavailable in the original trial or on direct appeal.  

The first section of the Indiana post-conviction rules sets forth the legal grounds for post-conviction relief. Each of these grounds involve a claim that some element of the underlying proceeding or a decision in that proceeding was illegal or unconstitutional.  

Grounds Set Forth in Section One of the Indiana Post-Conviction Rules 

  • The conviction or the sentence was in violation of the Constitution of the United States or the constitution or laws of this state; 
  • The court was without jurisdiction to impose sentence; 
  • The sentence exceeds the maximum authorized by law, or is otherwise erroneous; 
  • There exists evidence of material facts, not previously presented and heard, that require vacation of the conviction or sentence in the interest of justice; 
  • The offender’s sentence has expired, their probation, parole or conditional release unlawfully revoked, or they are otherwise unlawfully held in custody or other restraint; 
  • The conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy; may institute at any time a proceeding under this Rule to secure relief. 


Indiana Post-Conviction Rules: Filing a Petition 

The document that initiates post-conviction proceedings is a petition for post-conviction relief. The Indiana Judicial Branch provides sample forms for requesting for post-conviction relief. However, defendants must strictly comply with Indiana post-conviction relief rules or risk waiving (or losing) the opportunity to seek post-conviction relief. Therefore, it’s highly recommended that a criminal defendant seek assistance from an experienced Indiana post-conviction relief attorney rather than going the DIY-route, as even just a small error in completing or filing the forms can result in losing the right to seek relief. In addition, the court may refuse to review the petition if the petitioner failed to satisfy some of the filing requirements. 

Filing Requirements in Section Two and Three of the Indiana Post-Conviction Rules:  

  • The petitioner must file a verified petition with the clerk of the court in which the conviction took place. In cases where the petitioner’s parole has been unlawfully revoked, they must file a verified petition with the clerk of the court in the county in which they are incarcerated. 
  • Three (3) copies of the verified petition must be filed and no deposit or filing fee shall be required 
  • The petitioner must include every ground for relief under Sec. 1 known to the petitioner 
  • The petition shall be submitted in a form in substantial compliance with the standard form 
  • The petition shall be made under oath and the petitioner shall verify the correctness of the petition, and the authenticity of all documents and exhibits attached to the petition 
  • All documents and information excluded from public access pursuant to the Rules on Access to Court Records shall be filed in accordance with Trial Rule 5(G). 

Case Documentation Needed for Post-Conviction Relief Petition 

Post-conviction relief in Indiana allows for the petitioner to bring about new evidence regarding their case Therefore, the petitioner will need to provide the court with documentation of anything that happened in the criminal case after the trial has concluded. To be successful, the petitioner must present the court with enough facts to show that evidence exists, which if fully heard, would likely provide a basis for vacating their conviction. The evidence would also need to persuade a reasonable juror that there was a reasonable doubt about the petitioner’s guilt.  

Gathering this kind of evidence and building a strong argument often requires an experienced post-conviction attorney. If you’d like to speak with an one today, call Keffer Hirschauer LLP at 317-857-0160 or complete our online contact form to schedule a free consultation. 

Indiana Post-Conviction Rules: Pleadings 

Upon filing a petition for post-conviction relief, the petitioner has several deadlines to keep in mind. These deadlines are contained in section four of the Indiana post-conviction rules, and pertain to state response, requests to make a change of judge and the period to amend petition, among other elements of the post-conviction process.  

Section 4(a) of the Indiana post-conviction rules requires that the state (either the Attorney General or the prosecuting attorney) respond to the petition for relief within 30 days of filing. The response must state the reasons, if any, as to why the relief requested should not be granted. The rules also state that the court shall make appropriate orders for amendment of the petition or answer, for filing further pleadings or motions, or for extending the time of the filing by any pleading.  

Section 4(b) states that the petitioner has, in most cases, 10 days after filing the petition to request a change of judge. This may be done by filing an affidavit stating that the judge has a personal bias or prejudice against the petitioner. The affidavit must contain relevant facts and reasons for the belief, and a certification from the attorney of record stating that the attorney believes the facts listed to be true.  

Section 4(c) allows the court to, at any time prior to entry of judgment, grant leave to withdraw the petition. The petitioner shall be given leave to amend the petition as a matter of right no later than sixty [60] days prior to the date the petition has been set for trial. Any later amendment of the petition shall be by leave of the court. 

Section 4(e) outlines what shall happen when the counsel for petitioner files with the court a withdrawal of appearance accompanied by counsel’s certificate. This rule states that the case shall proceed under these rules, petitioner retaining the right to proceed pro se in forma pauperis if indigent. Thereafter, the court may order the State Public Defender to represent an indigent incarcerated petitioner if the court makes a preliminary finding that the proceeding is meritorious and in the interests of justice. Furthermore, Section 4(f) provides that if the State Public Defender has filed an appearance, the State Public Defender shall have sixty (60) days to respond to the State’s answer to the petition filed pursuant to Rule PC 1(4)(a). If the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the petition without further proceedings. 

Post-Conviction Relief Hearing and Judgement 

When a hearing is called to review a defendant’s petition for post-conviction relief, the burden of establishing grounds for relief by preponderance of evidence is placed on the petitioner. This means that the petitioner must prove that one of the statutes’ grounds applies, and that they must overcome the objections and evidence of the state that their conviction was lawful and proper. The Indiana post-conviction rules do not, under any circumstances, require the state to disprove the petitioner’s argument. In fact, the state will actively oppose the petition and present evidence aimed at persuading the court that the petitioner has not met the burden of proof required.  

As provided in the Indiana post-conviction rules, the petition shall be heard without a jury and a record of the proceedings shall be made and preserved. All the rules and statutes applicable in civil proceedings, including pre-trial and discovery procedures, are available to the parties; except as provided in section 4(b) when there has been a change of judge.  

Regardless of whether a hearing is held, Section 6 of the Indiana post-conviction rules requires the court to make a specific finding of fact, and conclusions of law on all issues presented. If the court rules in favor of the petitioner, it must enter an appropriate order with respect to the conviction or sentence in the formal proceedings, as well as any supplementary orders. This order shall be a final judgement. 

Indiana Post-Conviction Rules: Appealing the Final Judgement 

Section 7 of the Indiana post-conviction rules allows for an appeal to be taken by the petitioner or the State from the final judgment in this proceeding. The jurisdiction for the appeal will be determined by reference to the sentence originally imposed. However, the Indiana Supreme Court shall have exclusive jurisdiction in cases involving an original death sentence, while the Court of Appeals shall have jurisdiction in all other cases. 

Indiana Post-Conviction Rules: Subsequent Prosecution 

Section 10 of the Indiana post-conviction rules states that if prosecution is initiated against a petitioner who has successfully sought relief under this rule and a conviction is subsequently obtained, or the sentence has been set aside and the petitioner is to be resentenced, then the sentencing court cannot, in most cases, impose a more severe penalty than what was originally imposed. If a more severe penalty is imposed, the court must place a statement in the record of the sentencing hearing giving the reasons for selecting the sentence it is imposing. This must include reliance upon identifiable conduct by the petitioner that occurred after the imposition of the original sentence, and the court shall give the petitioner credit for time served.  

However, it should be noted, that the provisions above do not apply when a conviction, based on a plea agreement, is set aside; when the state files an offer to abide by the terms of the original plea agreement within 20 days following the date that the conviction was set aside; and the defendant fails to accept the terms of the original plea agreement within 20 days following the state’s offer to abide by the terms of the original plea agreement is filed. 

Successive Petitions for Post-Conviction Relief 


While obtaining post-conviction relief is rare, obtaining relief under a subsequent or successive post-conviction petition is even less common. However, section 12 of the Indiana post-conviction rules does allow for a petitioner to request a second, or successive, petition for post-conviction relief. However, they must properly and legibly complete the Successive Post-Conviction Relief Rule 1 Petition Form in substantial compliance and send it to the Clerk of the Indiana Supreme Court, Indiana Court of Appeals, and Tax Court. From there, the court will authorize the filing of the petition if the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction relief. If the court authorizes the filing of the petition, it is to be filed in the court where the petitioner’s first post-conviction relief petition was passed on judicially for consideration pursuant to this rule by the same judge if that judge is available. 

The reason that additional petitions are so rare is because the initial petition must set for ALL possible claims. This means that a successive petition must assert an extraordinary circumstance to avoid being waivered. An example of an extraordinary circumstance would be a scenario in which a petitioner alleges that the post-conviction attorney who filed their prior petition for relief rendered ineffective assistance of counsel by omitting a potential ground for post-conviction relief. If the Court of Appeals determines that the circumstances warrant a successive petition, they may give the petitioner permission to file another post-conviction petition. 

Want to Speak with an Attorney about Post-Conviction Relief? 

Understanding the Indiana post-conviction rules is a challenge, but successfully petitioning the State for relief is an even bigger challenge. The rules for filing a petition are strict, and the court is adamant that they will not review petitions that don’t completely comply. To maximize your chances of receiving post-conviction relief in Indiana, you’ll need to enlist the services of a diligent and experienced post-conviction relief attorney. The former deputy prosecutors at Keffer Hirschauer LLP understand all the nuances of the Indiana criminal justice system and can ably guide you through the post-conviction relief process. If you’d like to speak with an Indiana post-conviction relief attorney today, call Keffer Hirschauer LLP at 317-857-0160 or complete our online contact form to schedule a free consultation. 

Topic Categories

More Topics