Ferrier v. State

• Decision Date: 02 February 1979
• Docket Number: No. 778,778
• Citation: 270 Ind. 279,385 N.E.2d 422
• Parties: Hubert FERRIER, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below). S 128.
• Court: Indiana Supreme Court

Page 422

385 N.E.2d 422

270 Ind. 279

Hubert FERRIER, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 778 S 128.

Supreme Court of Indiana.

Feb. 2, 1979.

Harriette Bailey Conn, Public Defender of Indiana, Susan K. Carpenter, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Victoria R. Van Duren, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Hubert Ferrier, petitioner, appeals from the summary denial of his petition for post-conviction relief. His conviction on a first-degree murder charge was affirmed by this Court in Ferrier v. State, (1977) Ind., 361 N.E.2d 150. In this appeal, the petitioner raises two issues for our review:

1. Did the trial court err in summarily denying, without an evidentiary hearing, the petitioner's Pro se petition for post-conviction relief?

2. Did the trial court err in failing to appoint counsel to represent petitioner in his post-conviction relief proceedings?

In his petition for post-conviction relief, filed Pro se on January 23, 1978, petitioner raised three issues: denial of a fair trial, ineffective assistance of counsel, and prosecutorial misconduct. He also expressly requested representation by the Indiana State Public Defender, and he supported his request by a properly notarized and executed affidavit of indigency. The trial court ordered the state to respond but did not forward a copy of the petition to the State Public Defender. The state filed its answer to the petition on February 2, 1978, but no copy of the answer was served on the State Public Defender.

I.

First, the petitioner argues that the trial court erred in summarily denying, without an evidentiary hearing, his petition for post-conviction relief. Ind.R.P.C. 1, § 4(e) provides:

"If the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the petition without further proceedings."

Ind.R.P.C. 1, § 4(f) adds:

"The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible." (Emphasis added.)

Although the state, in its answer to the petition, argued that the issues of denial of a fair trial and prosecutorial misconduct were waived by the petitioner when he failed to pursue those issues in his direct appeal, the issue of ineffective assistance of counsel was addressed by the state on its merits. See Langley v. State, (1971) 256 Ind. 199, 267 N.E.2d 538, especially at footnote 2. Specific instances of lack of diligence on the part of trial counsel were alleged in the petition which raise material factual issues requiring an evidentiary hearing. Paneitz v. State, (1974) 262 Ind. 473, 318 N.E.2d 353. A hearing is required under Ind.R.P.C. 1, § 4(f) even though the likelihood that the petitioner will produce evidence sufficient to establish his claim appears to be quite remote. Frazier v. State, (1975) 263 Ind. 614, 335 N.E.2d 623. The trial court did err in summarily denying the petition for post-conviction relief.

II.

An additional reason for reversal and remand is present in this case. The trial judge failed to provide counsel for the petitioner. It is...