Packer v. State

• Decision Date: 02 October 2002
• Docket Number: No. 82A01-0112-PC-458.,82A01-0112-PC-458.
• Citation: 777 N.E.2d 733
• Parties: Debra PACKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

777 N.E.2d 733

Debra PACKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-0112-PC-458.

Court of Appeals of Indiana.

October 2, 2002.

Jon Aarstad, Vanderburgh County Public Defender, Evansville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Debra Packer appeals the trial court's determination of contempt and subsequent revocation of her probation. Packer raises two issues, which we restate as:

I. Whether the trial court abused its discretion when it found Packer in contempt; and

II. Whether sufficient evidence exists to support the trial court's revocation of Packer's probation.

In addition, we sua sponte address our concerns regarding the representation provided by the public defender who represents Packer in this appeal. We affirm.

The facts most favorable to the judgments follow. On April 6, 2001, a jury found Packer guilty of battery as a class D felony.¹ On April 20, 2001, the trial court sentenced Packer to eighteen months in the Department of Correction, with six of those months to be executed and twelve of the months suspended. The trial court did not require Packer to report to the Probation Department during her suspended sentence; however, the trial court did place two conditions on Packer. First, Packer was required to cooperate with the Office of Family and Children. Second, Packer was not allowed to have contact with her children except as approved by the Office of Family and Children.

On August 23, 2001, Packer pleaded guilty to invasion of privacy as a class A misdemeanor.² On October 9, 2001, the State filed a petition to revoke Packer's probation in which the State alleged that Packer had committed invasion of privacy.

On October 18, 2001, the trial court held a probation revocation hearing. At that hearing, Packer asserted her Fifth Amendment privilege not to incriminate herself and refused to answer any questions. The trial court indicated that Packer would be required to answer identification questions, such as her name and address. Despite being directly told by the trial court that she was to be placed under oath and ordered to answer such questions, Packer refused to cooperate. Consequently, the trial court found Packer to be in contempt of court and ordered her to spend ninety days in jail.

On November 15, 2001, at a second probation revocation hearing, the State presented a certified docket sheet indicating that Parker had pleaded guilty to invasion of privacy. On November 20, 2001, the trial court found that Packer violated her probation and imposed the suspended portion of her sentence.

I.

Prior to addressing the appeal, we note our concern regarding the representation provided by Packer's appellate counsel, a public defender. As the Issues Statement, Packer's brief contains the following two statements:

A. Ms. Packer's appellate counsel is unable to construct a non-frivolous argument that the Honorable Scott R. Bowers erred in finding the [sic] her to be in direct criminal contempt of court on October 18, 2001 and sentencing her to ninety days' imprisonment.

B. Ms. Packer's appellate counsel is unable to construct a non-frivolous argument that the Honorable Robert J. Pigman erred in revoking the Appellant's probation or suspended sentence on November 15, 200[1].

Appellant's Brief at 2. Then, after Summary of the Argument and Argument sections that essentially demonstrate that the trial court did not commit any error on the two issues raised, counsel included the following Conclusion in Packer's brief:

Because Packer filed a Notice of Appeal and Appellant's Case Summary, it seemed appropriate to file an Appellant's Brief of some kind, but Packer's appellate counsel, having reviewed the record and conducted appropriate research, is unable to construct non-frivolous arguments to support the most important of the contentions sought to be addressed on Packer's behalf, so a prayer for relief seems out of place.

Appellant's Brief at 11. There is nothing to indicate that counsel at anytime consulted with Packer or advised her of the positions that would be taken in the brief.

Although matters of attorney discipline do not fall within our jurisdiction, pursuant to Ind. Appellate Rule 4(B)(1)(b), we feel that it is incumbent upon us to explain why counsel's decision to submit such a brief concerns us and to suggest an alternative approach that counsel should take in the future in such a situation.

First, Indiana's Rules of Professional Conduct for Lawyers require a lawyer to provide competent representation to his clients. Ind. Prof. Conduct Rule 1.1. The Comment to that rule explains: "A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person." Our supreme court has previously explained that an "appellate attorney has an obligation, both to his client and this court to see that the issues raised are suitably argued." Dortch v. Lugar, 255 Ind. 545, 588, 266 N.E.2d 25, 50 (1971), abrogated on other grounds by Collins v. Day, 644 N.E.2d 72 (Ind.1994). In Packer's brief, counsel raised two issues and then explained that the trial court did not err on either one. Such explanations are not suitable arguments for a client.

Second, the Comment to another of the Ind. Professional Conduct Rules requires a lawyer to "act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf." Comment to Ind. Prof. Conduct Rule 1.3. If an attorney cannot protect the interests of his client to the best of his ability, he should "withdraw from the case." Sims v. State, 246 Ind. 660, 667, 208 N.E.2d 469, 472 (1965),cert. denied, 384 U.S. 922, 86 S.Ct. 1374, 16 L.Ed.2d 442 (1966); see also State ex rel. White v. Hilgemann, 218 Ind. 572, 579, 34 N.E.2d 129, 131 (1941) (holding that indigent defendant had right to appointed appellate counsel and, in the process, stating that "if competent counsel finds no substantial error to assign upon appeal, and so advises the defendant and the trial court, the constitutional requirement is satisfied and the defendant may not demand that the trial court find and appoint other counsel who will advise an appeal"). By filing a brief that includes the language cited above, counsel has neither acted with dedication to the interests of Packer nor advocated with zeal on Packer's behalf.

We recognize that, by stating that he could make no nonfrivolous argument, counsel displayed "Candor Toward the Tribunal" as required by Ind. Professional Conduct Rule 3.3. In addition, we recognize the difficult ethical challenge that may face public defenders in some situations, when they must balance the requirement of advocating with zeal on behalf of their clients with the requirements of candor and bringing meritorious claims. However, the balance struck by counsel appears to us to have been inappropriate, as counsel avoided a frivolous appeal by failing to advocate for his client while continuing to represent her.

A better balance for counsel to strike would be to follow the dictates of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), reh'g denied, and Penson v. Ohio, 488 U.S. 75, 82, 109 S.Ct. 346, 351, 102 L.Ed.2d 300 (1988). As set forth in Anders:

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae ... Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Anders v. California, 386 U.S. at 744, 87 S.Ct. at 1400 (footnote omitted).

While Anders and Penson discuss an appellant's right to appellate counsel under the federal constitution, we uncovered no caselaw suggesting that appellant's counsel filing an Anders brief would be inappropriate under the Indiana Constitution.³See, e.g., Petition of Stillabower, 246 Ind. 695, 696-697, 210 N.E.2d 665, 665-666 (1965) (holding that the public defender was not required to represent the petitioner in post-conviction proceedings when there were no meritorious grounds for relief); In re Harvey, 247 Ind. 23, 210 N.E.2d 859 (1965) (holding that public defender did not have to represent petitioner in post-conviction proceedings when there were no meritorious issues to present); Hilgemann, 218 Ind. at 579, 34 N.E.2d at 131 (noting that indigent defendant has no right to appellate counsel if there are no meritorious issues to advance on appeal). Consequently, if defense counsel are faced with a similar situation in the future, we suggest that they try an alternative approach to avoid violating their professional...