What happens if you lose a criminal appeal in Indiana?

If you lose a criminal appeal in Indiana, you will probably learn about it from a short document that does not explain much. Maybe it is eight pages, maybe it is twenty, and the last line says the judgment of the trial court is affirmed. Nobody calls to tell you what to do next, and the clock on your remaining options is already running. Some of those clocks are very short and cannot be extended for any reason. This post explains what an affirmance actually means, the two ways to ask a court to look again before the case closes, how post-conviction relief differs from the appeal you just lost, and the deadlines that decide whether any of it stays available to you.

What it means to lose a criminal appeal in Indiana

An affirmance does not mean the appellate court thought your case was frivolous or that nothing went wrong at your trial. Indiana's appellate rules contain a harmless error provision stating that an error is not grounds for reversal where its probable impact, in light of all the evidence, is minor enough that it did not affect substantial rights. That provision is why a decision can acknowledge that the trial court got something wrong and still affirm the judgment. The question the court is answering is not whether an error occurred but whether it made a difference to the outcome.

The other common reason arguments fail has nothing to do with their merit. Indiana's rules require issues to be preserved in the trial court and presented on appeal with cogent argument supported by authority and citations to the record. An issue that was not objected to at the right moment, or that was raised in the brief without developed argument, can be treated as waived. A waived issue never gets weighed on its merits, and nothing about that outcome depends on how serious the underlying problem was.

The form of the decision matters too. Indiana appellate courts publish an opinion when a case establishes, modifies, or clarifies a rule of law, criticizes existing law, or involves an issue of unique interest or substantial public importance. Everything else is decided by memorandum decision, which is not published in the official reporter and does not create binding precedent, though decisions issued since the start of 2023 may be cited for persuasive value. Receiving a memorandum decision is not a comment on how seriously the court took your case. It reflects the publication criteria, which turn on whether a case changes the law rather than on how much the outcome matters to the people in it.

Understanding why you lost is the necessary first step, because it determines which of the remaining options is worth pursuing. A loss on the merits, a loss on waiver, and a loss on harmless error point toward three different next moves. Our explanation of the grounds that support an appeal in Indiana is a useful reference when you are reading the decision and trying to figure out which category yours falls into.

Asking the Court of Appeals to reconsider your criminal appeal

The first option is a petition for rehearing, filed with the same panel that decided your case. Indiana's appellate rules allow rehearing from a published opinion, a not-for-publication memorandum decision, an order dismissing an appeal, and an order declining to authorize a successive post-conviction petition. It is not available from an order denying transfer.

The deadline is 30 days after the decision, and the rules are unusually blunt about it. No extension of time may be granted, and the three-day allowance for service by mail does not push the date back. That is a genuinely tight window when you consider that someone has to read the decision carefully, identify a real basis for reconsideration, and write and file the petition inside it.

A rehearing petition works best when the decision actually got something wrong on the face of the record. Something the panel overlooked, a fact it stated incorrectly, an argument it did not address, or an inconsistency with its own reasoning. Asking three judges who just spent months on your case to change their minds because you disagree with the result is a different exercise, and it rarely accomplishes anything. Knowing which of those two petitions you are actually writing is most of the skill involved.

Two procedural details are worth knowing before you decide. The State is not required to respond to a rehearing petition unless the court asks for a response, so silence from the other side means nothing. And reply briefs on rehearing are prohibited, which means whatever you file first is your whole argument. There is one strategic tradeoff as well. Filing for rehearing shifts your transfer deadline, so the two decisions have to be made together rather than one at a time.

Asking the Indiana Supreme Court to take your case

The second option is a petition to transfer, which asks the Indiana Supreme Court to accept jurisdiction over your appeal. Transfer may be sought from a published opinion, a memorandum decision, an amendment or modification of either, and an order dismissing an appeal. It is expressly unavailable from certain other orders, including an order declining to authorize the filing of a successive post-conviction petition.

The deadline depends on whether you sought rehearing. If you did not, the petition is due no later than 45 days after the adverse decision. If you did, it is due no later than 30 days after the Court of Appeals rules on your rehearing petition. As with rehearing, the rules state that no extension of time may be granted and that the mail rule does not extend the date. A filing fee applies, though the rules waive it for a party who proceeded in forma pauperis in the Court of Appeals. Once a petition is filed, the State has a limited window to respond and you have a shorter one to reply.

Transfer is discretionary, and this is the part that changes how the petition should be written. The Supreme Court is not obligated to take your case, and it is not primarily deciding whether the Court of Appeals reached the right result for you. The rules list the considerations that support a grant, and they are almost entirely institutional. A conflict between Court of Appeals decisions on the same important issue. A conflict with a Supreme Court decision. A conflict with a federal appellate decision on an important federal question. An important undecided question of law or a case of great public importance. Ruling precedent that is erroneous or needs clarification. A significant departure from accepted law or practice. A petition that reads like a third appellate brief tends to miss the point. A petition that shows the Court why your case matters beyond your case is doing the right work.

If transfer is granted, the Court of Appeals decision is automatically vacated except for any portion the Supreme Court expressly adopts or summarily affirms, and the appeal proceeds in the Supreme Court as though it had been filed there originally. If transfer is denied, the denial has no legal effect other than ending the litigation in the Supreme Court, and no rehearing may be filed from a denial. That is the end of your direct appeal. For a fuller picture of how often each stage produces relief, our look at what Indiana appeal success rate numbers really say is worth reading before you decide how much to invest in this stage.

Fugate Gangstad Lowe represents clients in Indiana appeals, including criminal appeals, civil appeals, family law appeals, commercial appeals, probate appeals, petitions to transfer to the Indiana Supreme Court, and other post-judgment matters. Anne Medlin Lowe handles the firm's appellate work and gives each case direct attorney attention from the first record review through final briefing and filing. A former judicial law clerk to Judge Paul D. Mathias of the Indiana Court of Appeals, Anne has worked on more than 150 appeals and brings a practical understanding of how appellate judges evaluate records, waiver, harmless error, standards of review, procedural issues, and written advocacy. A strong appeal starts long before the brief is written. Anne helps clients and trial counsel evaluate the record, identify appealable issues, avoid weak arguments that distract from stronger ones, and present the case in a way that is clear, accurate, and useful to the Court. You can read more about Anne Medlin Lowe and the firm's appellate practice on our attorney page. If you are considering an appeal, contact us for a free initial consultation to help you understand your options.

Post-conviction relief after you lose an Indiana criminal appeal

Post-conviction relief is a separate case, not a continuation of your appeal. You file it in the trial court where you were convicted, whether that was in Marion County, Hamilton County, or one of the surrounding circuit or superior courts, and it starts a new proceeding with its own record, its own hearing, and its own eventual appeal. Understanding that it is a different animal from a direct appeal explains most of what confuses people about it.

The biggest difference is what you are allowed to raise. A direct appeal is limited to what is already in the trial record. Post-conviction relief is where you can develop facts that were never in that record, which is why ineffective assistance of trial or appellate counsel is a common post-conviction claim. Proving that kind of claim usually requires evidence that does not exist yet, including testimony from your trial lawyer, witnesses who were never called, records that were never obtained, and a showing of how the outcome would plausibly have been different.

The limits are just as important. Issues that were actually raised and decided in your direct appeal generally cannot be relitigated in a post-conviction petition. Issues that were available on direct appeal but were not raised are generally treated as waived as freestanding claims, though the failure to raise them can sometimes be recast as a claim that appellate counsel performed deficiently. You carry the burden of proof, and it is a real burden with a real hearing, not a paperwork exercise. If a first petition is denied and you want to file another one, Indiana requires authorization from the Court of Appeals or the Supreme Court before a successive petition can be filed, and the appellate rules make clear that an order declining to authorize a successive petition cannot be taken up to the Supreme Court on transfer.

Two other avenues exist outside this track, and both have their own rules that this post does not attempt to cover. Indiana has a statute allowing a court to modify a sentence in defined circumstances, which is a different question from whether your conviction was lawful. Separately, a person in state custody may in some situations seek review in federal court, an option governed entirely by federal law with strict time limits and a demanding standard of review. Neither is a substitute for post-conviction relief, and both should be evaluated by counsel who can see how they interact with your state case.

What to do in the weeks after losing your criminal appeal

Get the decision, the sentencing order, and the appellate briefs in front of a lawyer quickly. The 30-day rehearing window and the 45-day transfer window run whether or not anyone is reviewing your file, and the rules state that no extension of time may be granted for either one. If your trial counsel or appointed appellate counsel is not planning to pursue further review, ask directly and in writing, and ask now rather than in week six.

Expect the case to return to the trial court once the decision is certified. Certification happens after the time for all rehearing, transfer, and review petitions has expired, and until then neither the trial court nor the parties may act on the decision. If you were released while the appeal was pending, the practical consequences of the affirmance get addressed once the case is back before the trial court, and you want counsel involved before that hearing rather than after it.

Then take a clear-eyed look at post-conviction relief, and start it as an investigation rather than a filing. The strength of a post-conviction case depends on evidence outside the trial record, and that evidence gets harder to gather with every passing year. Witnesses move, memories fade, files get purged, and lawyers retire. The people who get real traction in post-conviction proceedings are usually the ones who began building the record early. If you are helping a family member work through this and want to understand how the whole system fits together from the beginning, our complete guide on how to file an appeal in Indiana covers the front end, and the appellate rules themselves are published on the Indiana Supreme Court's rules page.

Frequently asked questions about losing a criminal appeal in Indiana

What happens if you lose an appeal in Indiana?

The Court of Appeals affirms the trial court, and you have a short window to seek rehearing from that panel or to petition the Indiana Supreme Court to transfer the case. If neither is pursued or both are denied, the decision is certified and the case returns to the trial court.

Can you appeal twice in Indiana?

Not in the sense of filing a second direct appeal. You can ask for rehearing and petition to transfer, and after the direct appeal is over you can file a separate post-conviction petition in the trial court, which carries its own right of appeal.

How long do I have to file a petition to transfer in Indiana?

No later than 45 days after the adverse Court of Appeals decision if you did not seek rehearing, or 30 days after the ruling on a rehearing petition if you did. The rules state that no extension of time may be granted for either deadline.

What is the difference between an appeal and post-conviction relief?

A direct appeal argues that the trial record shows a legal error. Post-conviction relief is a new case in the trial court where you can develop evidence outside that record, most often to show that your lawyer performed deficiently.

Does the Indiana Supreme Court have to take my case?

No. Transfer is discretionary, and the rules identify the kinds of institutional reasons that support a grant, such as conflicting decisions or an important undecided question of law.

What happens if the Indiana Supreme Court denies transfer?

The denial has no legal effect beyond ending the litigation in the Supreme Court, and no rehearing may be sought from it. The Court of Appeals decision stands and is then certified back to the trial court.

Can I file for post-conviction relief if I lost my direct appeal?

Yes, and losing the direct appeal is the normal prerequisite. Issues already decided on appeal generally cannot be raised again, so the petition usually focuses on claims that depend on evidence outside the trial record.

Is there a deadline for post-conviction relief in Indiana?

Indiana's post-conviction rule does not impose the same kind of fixed filing deadline that the appellate rules impose on rehearing and transfer, but waiting has real costs. Delay can support a laches defense by the State, and the evidence a post-conviction claim depends on becomes much harder to gather over time.

Talk to an appellate lawyer before your deadlines run

To lose a criminal appeal in Indiana is not automatically the end of the case, but the options that remain close quickly and cannot be reopened. Thirty days for rehearing, forty-five for transfer, and the rules allow no extension of either. If the Indiana Court of Appeals has affirmed your conviction or sentence, the useful next step is a conversation about whether transfer is realistic in your case, whether rehearing has a basis, and whether the record points toward a post-conviction claim worth developing. Contact us for a free initial consultation.

The information provided in this article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. For legal advice tailored to your situation, please contact our firm directly.