State ex rel. Grecco v. Allen Circuit Court, 0-491

• Decision Date: 13 November 1958
• Docket Number: No. 0-491,0-491
• Citation: 238 Ind. 571,153 N.E.2d 914
• Parties: STATE of Indiana ex rel. Gerald GRECCO, Relator, v. The ALLEN CIRCUIT COURT and James R. Newkirk, Special Judge, Respondents.
• Court: Indiana Supreme Court

Page 914

153 N.E.2d 914

238 Ind. 571

STATE of Indiana ex rel. Gerald GRECCO, Relator, v. The ALLEN CIRCUIT COURT and James R. Newkirk, Special Judge Respondents.

No. 0-491.

Supreme Court of Indiana.

Nov. 13, 1958.

Robert S. Baker, Public Defender, Indianapolis, amicus curiae.

James R. Newkirk, Fort Wayne, for respondents.

PER CURIAM.

This is an original action brought by relator asking that respondent be mandated to appoint pauper counsel to represent relator and perfect an appeal from his judgment of conviction for inflicting physical injury in the commission of a robbery, for which he was sentenced to life imprisonment. Relator also asks that respondent be mandated to furnish him a transcript at public expense. We issued the alternative writ.

From the verified petition it appears that relator was tried by a jury and convicted and sentenced to life imprisonment. That respondent judge was the special judge who tried said cause and ruled on the motion for new trial, overruling the same. That relator in the trial of said cause we represented by an attorney of his own choosing, but after the overruling of the motion for new trial, the attorney withdrew from the case and refused to perfect the appeal because relator was without funds to pay such attorney. That relator is now confined to the Indiana State Prison and has no money, means, property, or credit with which he can employ an attorney or procure a transcript for his appeal which he desires to take to this court. That relator has personally filed several requests for extensions of time to file transcript and assignment of errors with this court. That relator had written respondent three letters from the state prison requesting respondent to appoint an attorney and provide a transcript at public expense, but respondent's letter of reply, which is made an exhibit, states respondent had no jurisdiction to appoint counsel for relator, but if such appointment were proper, it could only be made by the regular judge of the Allen Circuit Court. The regular judge was then written by relator from the prison but he also declined relator's request.

Respondent has filed a response to the writ which does not comply with the rules of this court as it is not verified as the rules require. Rule 2-36 of Supreme Court. The response contains argumentative and immaterial matter, and contends this court cannot mandate respondent to impose upon the taxpayers of the county the expenses of an appeal for relator until relator satisfies respondent judge he has a meritorious appeal, citing State ex rel. Crawford v. Owen, 1948, 225 Ind. 601, 77 N.E.2d 123.

An examination of the cited case, however, reveals that it did not involve an appeal taken within the regular time provided by statute, but instead a belated appeal, sought to be taken after the time specified for taking appeals had expired. Statutes providing for the taking of belated appeals 'for good cause shown' ¹ do not govern regular appeals. See State ex rel. Casey v. Murray, 1952, 231 Ind. 74, 106 N.E.2d 911.

Under the Indiana Constitution ² an accused charged with crime is entitled to be represented by counsel at every stage of the proceedings against him. State v. Minton, 1955, 234 Ind. 578, 130 N.E.2d 226; Tokash v. State, 1953, 232 Ind. 668, 115 N.E.2d 745; Dearing v. State, 1951, 229 Ind. 131, 95 N.E.2d 832. If the accused is not financially able to employ an attorney of his own choice, it is the duty of the court to select a competent attorney for him at public expense.

The right of a defendant to appeal from any judgment in a criminal action against him is specified by Burns' § 9-2301, 1956 Replacement, which provides:

'An appeal to the Supreme Court * * * may be taken by the defendant as a matter of right, from any judgment in a criminal action against him, in the manner and in the cases prescribed herein; and, upon the appeal, any decision of the court or intermediate order made in the progress of the case may be reviewed.' Acts 1905, ch. 169, § 324, p. 584.

If appeals are not desired in this state as a matter of right, recourse should be had to the legislature and not to the courts to change the law in this respect. It necessarily follows from the statutory provisions for appeal, as of right, to an accused in a criminal case, that an indigent defendant's right to be represented by counsel at public expense extends to his prosecution of an appeal. See State ex rel. White v. Hilgemann, 1941, 218 Ind. 572, 34 N.E.2d 129.

And an indigent defendant's right to a transcript of the evidence without charge for use on appeal is specified by Burns' § 4-3511, 1946 Replacement, which provides:

'Any poor person desiring to appeal to the Supreme Court * * * from the decision of any circuit court or criminal court, * * * in criminal cases, and not having sufficient...