Kling v. State

• Decision Date: 29 November 2005
• Docket Number: No. 20S00-0511-CR-612.,20S00-0511-CR-612.
• Citation: 837 N.E.2d 502
• Parties: Rodney D. KLING, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

Page 502

837 N.E.2d 502

Rodney D. KLING, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 20S00-0511-CR-612.

Supreme Court of Indiana.

November 29, 2005.

Susan K. Carpenter, Public Defender of Indiana, Adam J. Carter, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

SULLIVAN, Justice.

Our decision last year in Collins v. State, 817 N.E.2d 230, 231 (Ind.2004), held that an individual who pleads guilty to an offense in an "open plea" and who challenges the sentence imposed must do so on direct appeal and not by means of a petition for post-conviction relief. Collins has given rise to questions concerning the relative roles and responsibilities of county appellate public defenders and the State Public Defender in handling belated appeals of sentences imposed following open pleas. We address those questions in this opinion.

Background

Because this case involves the somewhat technical interplay of the procedures for direct and collateral review of criminal convictions and sentences and of the method by which lawyers are provided to indigent persons seeking review, we start with a brief overview of these procedures and methods. We highlight key terms as we go. First, as a general rule, a person convicted and sentenced for a crime has the right to appeal the conviction and sentence to the Court of Appeals and then to this Court. This Court's Rules of Appellate Procedure govern direct appeals, including time deadlines. An indigent person filing such a "direct appeal" has the right to have a lawyer handle the appeal, paid for by the county where convicted. (We will refer to such a lawyer as a "County Appellate Public Defender.") Second, again as a general rule, a person may challenge a conviction or sentence on the basis of issues unknown or not available at trial by filing what is called a "petition for post-conviction relief." This Court's Post-Conviction Rule 1 governs post-conviction proceedings. "Post-conviction" proceedings are often referred to as "collateral review" because they occur by means of filing a new lawsuit. Third, in a typical situation, a convicted and sentenced person who is indigent initiates collateral review by filing a pro se petition for post-conviction relief.¹ As soon as practicable thereafter, the State Public Defender assumes representation, an amended petition for post-conviction relief is filed, and the post-conviction proceedings commence in earnest. If post-conviction relief is denied, the State Public Defender continues as the petitioner's lawyer in any appeal. The State Public Defender is paid by the State, not the county.

A special set of rules applies if a convicted and sentenced person does not file a direct appeal on a timely basis. This Court's Post-Conviction Rule 2 governs these so-called "belated appeals." Another special set of rules applies if a conviction and sentence are entered following a guilty plea. These rules, enunciated in this Court's opinions, can be summarized for this purpose as follows. A person who pleads guilty cannot challenge the conviction by means of direct appeal but only through a petition for post-conviction relief; one of the things a person gives up by pleading guilty is the right to a direct appeal. Tumulty v. State, 666 N.E.2d 394 (Ind.1996). But if, in a guilty plea situation, there is no agreement between the defendant and the State as to the sentence to be imposed — called an "open plea," i.e., one where the judge has discretion as to the sentence to be imposed, the sentence can, indeed must, be challenged (if at all) by means of a direct appeal. Collins v. State, 817 N.E.2d 230 (Ind.2004).

This case primarily addresses the relative roles and responsibilities of County Appellate Public Defenders and the State Public Defender in handling belated appeals of sentences imposed following open pleas.

Several years ago, Rodney D. Kling and the State entered into an agreement under which he pled guilty to certain offenses. Under the terms of the plea agreement, the sentence was left to the discretion of the trial court — it was an "open plea." Kling did not challenge the sentence by means of a direct appeal. He later filed a petition for post-conviction relief under P-C.R. 1 that included a challenge to his sentence as "erroneous." Still later, Kling, represented by the State Public Defender, sought to withdraw his petition for post-conviction relief without prejudice and requested appointment of counsel at county expense to investigate and pursue a belated direct appeal. The Elkhart Superior Court No. 3 granted Kling's request to withdraw his P-C.R. 1 petition without prejudice but denied his request for appointment of counsel at county expense to pursue relief under P-C.R. 2. On Kling's behalf, the State Public Defender requests (1) an order from this Court requiring the appointment of counsel for him at local expense so he can pursue proceedings under P-C.R. 2, and (2) an order generally applicable to all cases in a similar procedural posture directing that counsel be appointed at local expense to pursue proceedings under P-C.R. 2.²

In support of Kling's second request, his papers filed in this Court are accompanied by materials from several other cases raising the same or similar issues. One is a copy of a March 24, 2005, order from the Marion Superior Court, Criminal Division No. 6, in James Frazier v. State, No. 49G06-0403-PC-042001. Frazier failed to file a direct appeal and later filed a P-C.R. 1 petition raising several challenges to his guilty plea but no claim regarding his sentence. Later, Frazier, represented by the State Public Defender, asked the post-conviction court to dismiss without prejudice his pending P-C.R. 1 petition and appoint counsel at county expense to investigate and pursue relief under P-C.R. 2. The trial court in Frazier directed the State Public Defender to confer with the Appellate Division of the Marion County Public Defender Agency (whose attorney would represent Frazier in a direct appeal) to ascertain whether it was in Frazier's best interest to delay litigation of his P-C.R. 1 petition in exchange for pursuing a belated appeal of his sentence under P-C.R. 2. At our invitation, the judge in Frazier's case, the Honorable Judge Jane Magnus-Stinson, submitted additional information relating to Frazier's case.³ The materials submitted by Judge Magnus-Stinson have been helpful to the Court and we express our appreciation to her.

Discussion

The issues raised here derive from our decision referred to above, Collins v State.⁴ Prior to Collins, there was a split in authority over whether the proper procedure to challenge a sentence imposed upon an "open plea" of guilt was by means of a direct appeal or by means of collateral review under P-C.R. 1. Collins decided the issue by holding that the proper procedure for challenging such a sentence is to file a direct appeal or, if the time for filing a direct appeal has run, to seek permission to file a belated direct appeal under P-C.R. 2. Id. at 231. (Because Collins's challenge to his sentence had been brought under P-C.R. 1, we remanded his case to the post-conviction court with instructions to vacate its order denying Collins's P-C.R. 1 petition and dismiss that petition without prejudice to any right Collins might have to file a belated appeal under P-C.R. 2. Id.)

Now that it is clear that a sentence imposed upon an open plea must be challenged, if at all, on direct appeal, the State Public Defender takes the position that she has no role or responsibility with respect to such an appeal because her sole duty is to provide representation to indigent inmates seeking post-conviction relief. She first points out that Indiana Code § 33-40-1-2(a) provides that the State Public Defender shall represent an indigent person who is confined in a penal institution in Indiana or committed to the Department of Correction on a criminal conviction or delinquency adjudication "in a postconviction proceeding testing the legality of the person's conviction, commitment, or confinement, if the time for appeal has expired." Our own rule, she adds, also designates the State Public Defender as the attorney available for indigent inmates who request the assistance of counsel in pursuing relief under P-C.R. 1. See P-C.R. 1, § 9(a). On the other hand, her argument continues, when an indigent defendant in a criminal case requests the assistance of counsel in filing a direct appeal of his conviction or sentence, it is the trial court's responsibility to arrange for, and the county's responsibility to fund, counsel to assist the defendant in taking that appeal. See Ind.Code § 33-40-2-1 et seq.; State ex rel. White v. Hilgemann, 218 Ind. 572, 34 N.E.2d 129 (1941).

We agree that an indigent person who is convicted and sentenced and desires to appeal is entitled to the assistance of counsel in pursuing that appeal. In the ordinary case, the trial court should arrange for the appointment of counsel, at local (county) expense,⁵ if the indigent defendant requests the assistance of counsel in pursuing an appeal.

But the State Public Defender's argument goes further. She contends that she has no role or responsibility in respect to a person sentenced under an open plea until the possibility of a sentencing claim has been investigated and, if one exists, pursued on direct appeal. She maintains that she cannot seek collateral review on behalf of a person sentenced under an open plea until the possibility of a sentencing claim has been investigated by a County Appellate Public Defender and, if a claim exists, pursued on direct appeal; and that if she has taken on representation of a person so sentenced where the possibility has not been investigated (or, in the course of her representation, has been discovered), she must seek dismissal and appointment of a County Appellate Public Defender.

We have a different view. We hold when the State ...