State v. Crowder

• Decision Date: 12 June 1991
• Docket Number: Nos. 90-1195 and 90-1541,s. 90-1195 and 90-1541
• Citation: 573 N.E.2d 652,60 Ohio St.3d 151
• Parties: The STATE of Ohio, Appellee, v. CROWDER, Appellant.
• Court: Ohio Supreme Court

Page 151

60 Ohio St.3d 151

573 N.E.2d 652

The STATE of Ohio, Appellee, v. CROWDER, Appellant.

Nos. 90-1195 and 90-1541.

Supreme Court of Ohio.

Submitted April 24, 1991.

Decided June 12, 1991.

Syllabus by the Court

1. Although an indigent petitioner does not have a state or a federal constitutional right to representation by an attorney in a postconviction proceeding, the petitioner, pursuant to R.C. 120.16(A)(1) and (D), is entitled to representation by a public defender at such a proceeding if the public defender concludes that the issues raised by the petitioner have arguable merit.

2. R.C. 120.16(A)(1) and (D) implicitly require the trial court, upon concluding that the petitioner in a postconviction proceeding is entitled to an evidentiary hearing pursuant to R.C. 2953.21(C) and (E), to promptly notify the public defender of the pending hearing.

On October 16, 1984, appellant, Fredrick L. Crowder, was convicted of murder, aggravated murder and aggravated robbery. Thereafter, he was sentenced to life imprisonment for the aggravated murder conviction and a concurrent term of seven to twenty-five years for the aggravated robbery conviction.

On January 10, 1989, Crowder filed a pro se petition for postconviction relief pursuant to R.C. 2953.21 alleging, among other things, jury misconduct. In support of this allegation, Crowder submitted the affidavits of his wife, Sheila Crowder, and Mary Catherine Hagar. As a result, the trial court granted Crowder a hearing.

In his petition and during the hearing, Crowder requested that the trial court appoint him counsel. The trial court did not grant Crowder's requests.

On July 21, 1989, the trial court denied Crowder's postconviction petition for relief. In its conclusions of law, the court, in part, determined that "[a]n indigent defendant possesses neither a constitutional nor statutory right to appointed counsel for postconviction proceedings."

Crowder appealed and set forth as his sole assignment of error the trial court's failure to appoint him counsel at the evidentiary hearing. The court of appeals overruled Crowder's assignment of error and affirmed the judgment of the trial court.

The court of appeals, finding its decision to be in conflict with the decision of the Court of Appeals for Van Wert County in State v. Barnes (1982) 7 Ohio App.3d 83, 7 OBR 96, 454 N.E.2d 572, certified the record of the case to this court for review and final determination (case No. 90-1541).

Additionally, on October 10, 1990, we granted Crowder's motion to certify the record (case No. 90-1195).

Michael Miller, Pros. Atty., and Bonnie L. Maxton, Columbus, for appellee.

Randall M. Dana, Ohio Public Defender, Gregory L. Ayers and Timi J. Townsend, Columbus, for appellant.

Ken Murray, Columbus, urging reversal for amicus curiae, Ohio Ass'n of Criminal Defense Lawyers.

DOUGLAS, Justice.

In determining that its decision was in conflict with Barnes, supra, the court of appeals requested that we settle the following question:

" 'Is an indigent petitioner entitled upon request as a matter of right under the provisions of the Public Defender Act, R.C. Chapter 120, to have counsel appointed to represent him at the evidentiary hearing held on the merits of his post-conviction petition pursuant to R.C. 2953.21, et seq.?' "

Specifically at issue in the instant cause is R.C. 120.16(A)(1) and (D), which provide as follows:

"(A)(1) The county public defender shall provide legal representation to indigent adults and juveniles who are charged with the commission of an offense or act that is a violation of a state statute and for which the penalty or any possible adjudication includes the potential loss of liberty and in postconviction proceedings as defined in this section." (Emphasis added.)

"(D) The county public defender shall not be required to prosecute any appeal, postconviction remedy, or other proceeding, unless he is first satisfied there is arguable merit to the proceeding." (Emphasis added.)

The court of appeals determined an indigent petitioner has neither a state nor a federal constitutional right to appointed counsel during a postconviction proceeding. The court also examined a petitioner's rights pursuant to R.C. 120.16(A)(1) and (D), and concluded "that the legislature did not intend to create a mandatory right to appointed counsel for indigent defendants in post-conviction matters. Had the legislature so intended, it would not have given the public defender any discretion in deciding whether to pick and choose which post-conviction remedies would be prosecuted." Therefore, the court of appeals held that the trial court properly declined to appoint counsel for Crowder.

We agree with the court of appeals that an indigent petitioner has neither a state nor a federal constitutional right to be represented by an attorney in a postconviction proceeding. See Pennsylvania v. Finley (1987), 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539. However, we are not in agreement with the court of appeals' interpretation of R.C. 120.16(A)(1) and (D).

R.C. 120.16(A)(1) and (D) are clear. R.C. 120.16(A)(1) provides that the " * * * public defender shall provide legal representation to indigent[s] * * * in postconviction proceedings * * *." (Emphasis added.) Section (D) of the statute maintains that the " * * * public defender shall not be required to prosecute any * * * postconviction remedy * * * unless he is first satisfied there is arguable merit to the proceeding." (Emphasis added.) The General Assembly has provided the public defender with the authority and discretion to refuse to represent an indigent petitioner seeking postconviction relief, if the public defender, after examining the issues raised by the petitioner concludes that the issues do not have arguable merit. Likewise, upon a finding by the public defender that arguable merit exists, the petitioner, pursuant to Subsection (A)(1) of the statute, is entitled to representation by a public defender.

When a person is convicted of a criminal offense and claims that his or her constitutional rights were violated, the person, pursuant to R.C. 2953.21, may petition the court which imposed the sentence and request that the court vacate or set aside the judgment or sentence. Next, the clerk of the court must forward a copy of the petition to the prosecuting attorney of that county. ¹ Thereafter, unless the petition, supporting affidavits, and files and records pertaining to the proceedings show that "substantive grounds for relief" exist, the court need not afford the petitioner a hearing. ² If the court finds, however, that a petitioner is entitled to a hearing, then it is entirely possible that the public defender may not become aware that a hearing has been set, or that the actual hearing itself has taken place in a case where the petitioner seeks to appeal the trial court's denial of the postconviction petition. Hence, without notification, the public defender is in no position, with respect to postconviction proceedings, to exercise those discretionary powers explicitly conferred on the public defender by the General Assembly pursuant to the Public Defender's Ac...