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 |
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.
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.
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:
(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.
An additional reason for reversal and remand is present in this case. The trial judge failed to provide counsel for the petitioner. It is...
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Fair v. Givan
...it is mandatory that the Public Defender represent pauper petitioners in proceedings involving post-conviction relief. Ferrier v. State, Ind., 385 N.E.2d 422. And although post-conviction proceedings are civil in nature, a court would have the power to appoint attorneys to defend any indige......
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...se. Ind.Code Sec. 33-1-7-2 (Burns 1985 Repl.); Ind.P.C.R. 1 Sec. 9(a); Majors v. State, (1982) Ind., 441 N.E.2d 1375; Ferrier v. State, (1979) 270 Ind. 279, 385 N.E.2d 422. The trial court therefore erred in appointing local pauper counsel rather than notifying the public defender's office.......
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Ferrier v. State
...150. He filed a pro se Petition for Post-Conviction Relief, the summary denial of which was reversed on appeal. Ferrier v. State (1979), 270 Ind. 279, 385 N.E.2d 422. The petition was then denied after an evidentiary hearing. The denial was affirmed in Ferrier v. State (1980), 274 Ind. 585,......
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