State ex rel. Shorter v. Allen Superior Court, 3-1272A94

• Decision Date: 15 February 1973
• Docket Number: No. 3-1272A94,3-1272A94
• Parties: STATE of Indiana on the Relation of Delbert L. SHORTER, Relator, v. The ALLEN SUPERIOR COURT, Phillip R. Thieme, as Judge of the Misdemeanor Division, Respondent.
• Court: Indiana Appellate Court

Page 286

292 N.E.2d 286

155 Ind.App. 269

STATE of Indiana on the Relation of Delbert L. SHORTER, Relator, v. The ALLEN SUPERIOR COURT, Phillip R. Thieme, as Judge of the

Misdemeanor Division, Respondent.

No. 3-1272A94.

Court of Appeals of Indiana, Third District.

Feb. 15, 1973.

Rehearing Denied March 20, 1973.

Robert S. McCain, Fort Wayne, for relator.

John R. Fleck, Keller, Fleck & Holleran, Fort Wayne, for respondent.

PER CURIAM.

This original action was commenced by Relator, Delbert L. Shorter, seeking the issuance of a Writ of Prohibition in aid of this Court's appellate jurisdiction to forbid Respondent Allen Superior Court and The Honorable Phillip R. Thieme, Judge of the Misdemeanor Division of that Court, from assigning Shorter's appeal to a county public defender and from preventing Shorter's trial attorney from representing him in his appeal with compensation for his services.

The record in this case reveals the following facts:

The Relator, Delbert L. Shorter, was convicted of Contributing to the Delinquency of a Minor in the Respondent Court. Shorter retained private counsel to represent him at trial. Following the overruling of his Motion to Correct Errors and the filing of a praecipe, Shorter petitioned the Respondent Court for costs of transcript, bill of exceptions and attorney's fees for his trial counsel to prosecute an appeal to the Court of Appeals of Indiana. Respondent Court granted Shorter's petition for costs with attorney's fees for appeal, but assigned Shorter's appeal to the office of public defender of Allen County, rather than to Shorter's trial counsel as requested.

Shorter argues in support of his petition for a Writ of Prohibition that the Respondent Court acted beyond its lawful jurisdiction in assigning his appeal to the County Public Defender because this action denied him his constitutional right to the counsel of his choice to prosecute his appeal.

A defendant in a criminal trial has a right to have an attorney of his own choice if he is financially able to employ such an attorney. If he is not financially able to do so, it is the duty of the Court to select a competent attorney for him at public expense. Fitzgerald v. State (1970), 254 Ind. 39, 257 N.E.2d 305; State v. Minton (1955), 234 Ind. 578, 130 N.E.2d 226.

The Court's duty to appoint competent counsel arises at any stage of the proceedings, including an appeal, when the defendant's indigency causes him to be without the assistance of counsel. State ex rel. Grecco v. Allen Circuit Court (1958) 238 Ind. 571, 153 N.E.2d 914; Douglas v. California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.

While an indigent has an absolute right to the assistance of counsel, he does not have the absolute right to the assistance of the counsel of his choice. United States v. Hampton (7th Cir.1972) 457 F.2d 299; Reiff v. United States (9th Cir.1962) 299 F.2d 366, cert. den. (1963) 37 U.S. 937, 83 S.Ct. 884, 9 L.Ed.2d 768.

The Indiana Supreme Court has recently reaffirmed this principle...