Massa, J.
Article 4, Section 1 of our state Constitution vests “Legislative authority” in the General Assembly. Article 7, Section 1, meanwhile, vests the “judicial power” in one Supreme Court, with the power to adopt rules for the exercise of its jurisdiction. See Art. 1, Sec. 4. While we often strive to harmonize our rules with statutes, occasionally there are inconsistencies between the two bodies of law. This case exposes one.
A law adopted by the General Assembly requires the State Public Defender to represent the indigent in post-conviction proceedings if they are incarcerated in a “penal facility,” which includes a county jail. But post-conviction rules adopted by our Court require courts to send such petitions to the Public Defender only if the petitioner is in the Department of Correction.
So, what happens if the petitioner is serving his sentence in a county jail, given recent sentencing reforms? The statute says the Public Defender shall represent him (subject to the agency’s discretion to decline meritless claims). But the statute offers no particular procedure for how that relationship is to commence. It does not mandate the appointment of counsel; it doesn’t even mandate the forwarding of the petition to the Public Defender office – again, that requirement appears in the postconviction rules, but only if the petitioner is in prison. The rule clearly has not kept pace with legislation expanding the definition and use of “penal facility.”
Thus, the controversy before us today. A petitioner serving a sentence in a county jail sought post-conviction relief. The judge declined to forward the petition to the Public Defender. Given that the judge was following our own rule, and didn’t violate the statute, we are hard pressed to find error. But we nevertheless refer the issue to our Rules Committee to draft a rule extending the forwarding requirement in all cases where petitioners are incarcerated in any penal facility, including county jails.
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The right to counsel in post-conviction proceedings is not guaranteed by either the United States Constitution or Article 1, Section 13 of the Indiana Constitution. See Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). This is because our law does not regard a petition for post-conviction relief to be the same thing as a criminal proceeding, which calls for a public trial within the meaning of these constitutional provisions. Id. (citing Carman v. State, 196 N.E. 78 (Ind. 1935)). However, in the 1940’s, our Court noted the need for representation in post-conviction cases, following years of pro se petitioners filing “confused and unintelligible” pleadings, which posed a “great burden” on our courts. State ex rel. Lake v. Bain, 76 N.E.2d 679, 683 (Ind. 1948) (Emmert, C.J., concurring). The General Assembly responded by enacting what is now Indiana Code Chapter 33-40-1, which established the Public Defender to represent prisoners in post-conviction proceedings. The original enactment of the statute specified “the duty of the Public Defender to represent any person in any penal institution of this state who is without sufficient property or funds to employ his own counsel” in post-conviction proceedings following appeal. 1945 Ind. Acts ch. 38, § 2. Soon thereafter, we indicated, in dicta, that the statute applied to “all persons in prison” who were unable to afford counsel, Lake, 76 N.E.2d at 680, and “pauper inmates of the State prison” in particular, State ex rel. Lee v. Wilson, 77 N.E.2d 354, 355 (Ind. 1948).
In 1979, the Legislature amended the statute by broadening its scope to include any indigent person “confined in any penal facility of this state or committed to the DOC due to a criminal conviction or delinquency adjudication.” Pub. L. No. 120-1979, § 9, 1979 Ind. Acts 487, 565. To this day, the statute has remained substantively the same and permits those who are unable to afford counsel to still test the legality of their conviction, commitment, or confinement, if the time for appeal has expired. See I.C. § 33-40-1-2. Thus, Elzey had a statutory right to representation by the Public Defender (if the office determined the petition had merit), see id. § 33-40-1-2(c), though the statute puts no onus on the post-conviction judge to forward the petition. That “forwarding” requirement is a creature of court rule which, unfortunately for Elzey, did not apply to him.
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Our Court adopted the Rules for Post-Conviction Remedies in 1969. Under these rules, post-conviction relief is available to those who pled guilty, or to those who have appealed without being able to raise all challenges to their convictions or sentences on direct appeal. See Indiana Post-Conviction Rule 1.
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Relevant to this case, Indiana Post-Conviction Rule 1(2) provides, in pertinent part: If an affidavit of indigency is attached to the [PCR] petition, the clerk shall call this to the attention of the court. If the court finds that the petitioner is indigent, it shall allow petitioner to proceed in forma pauperis. If the court finds the indigent petitioner is incarcerated in the Indiana Department of Correction, and has requested representation, it shall order a copy of the petition sent to the Public Defender’s office. (Emphasis added). Post-Conviction Rule 1(9)(a) addresses the responsibilities of the State Public Defender when the trial court forwards a petition and affidavit of indigency to the State Public Defender/
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Elzey argues that he meets the requirements of the State Public Defender Statute because he was confined in a penal facility, the Huntington County jail, and had proven he was indigent and unable to hire counsel. Therefore, he argues that his post-conviction petition should have been referred to the Public Defender. In response, the State argues that the post-conviction rules and the State Public Defender Statute do not conflict. The State contends that the rule only requires the post-conviction court to refer an indigent petitioner to the Public Defender if they are committed to the DOC; however, if they are not, they can still contact the Public Defender for representation on their own.
We do not find that the statute and requisite post-conviction rules conflict. The State Public Defender Statute dictates which individuals are eligible for representation by the Public Defender— those confined in a penal facility or committed to the DOC because of a criminal conviction or delinquency adjudication—and requires them to prove they are financially unable to employ counsel. On the other hand, the postconviction rules provide procedural mechanisms for trial courts to administer access to the Public Defender.
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The State Public Defender Statute does not define “penal facility.”
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Moreover, we find other statutes support this definition. The Legislature has defined penal facility under Indiana Code Section 35-31.5-2232. “Penal facility means a state prison, correctional facility, county jail, penitentiary, house of correction, or any other facility for confinement of persons under sentence, or awaiting trial or sentence, for offenses. The term includes a correctional facility constructed under IC 4-13.5.” Id. (Emphasis added).
Reading this section, we find that “or” separates inmates who are “confined in a penal facility” and those “committed to the department of correction.” I.C. § 33-40-1-2(a)(1). Under this plain reading, this means that inmates confined in either a “penal facility” or committed to the “department of correction” have access to the Public Defender. The Public Defender, as Amicus, asks this Court to limit their duty of representation to only those committed to the DOC; however, this would render the statute’s “penal facility” language superfluous.
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Based on this reading, we conclude that the Public Defender must represent all indigent individuals who are confined in a penal facility in Indiana or committed to the DOC due to a criminal conviction or delinquency adjudication.
Based on our reading of the statute, Elzey was entitled to representation. However, the trial court did not commit reversible error because it followed our post-conviction rule as written at the time. Therefore, we acknowledge that, in this instance, our post-conviction rules created an unintentional gap for access to the Public Defender for indigent petitioners housed in county jails.
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It is important to note that while our statute requires the Public Defender to represent individuals in all penal facilities, the Public Defender Statute and our post-conviction rules still enable the office to exercise its discretion in agreeing to representation. Indiana Code Section 33-40-1-2(c) grants the Public Defender the authority to decline to “pursue a claim or defense that is not warranted under law and cannot be supported by a good faith argument for an extension, a modification, or a reversal of law, or that for any other reason is without merit.” Beyond this, under post-conviction rule 1(9), the Public Defender maintains discretion to determine whether a post-conviction proceeding is meritorious and in the interests of justice. If the proceeding lacks merit or is not in the interests of justice, the Public Defender may refuse representation. In such cases, the petitioner retains the right to proceed pro se or employ private counsel. However, the court is not obligated to appoint alternative counsel. Ind. P-C.R. 1(9).
Because the trial court followed our rule as it currently reads, we find no reversible error. However, we recognize the gap between our rule and the statute, so we refer this to our Rules Committee to amend in accordance with our rules process, with all deliberate speed.
Slaughter and Molter, JJ., concur.
Rush, C.J., concurs in part and dissents in part with separate opinion.
Goff, J., did not participate in the decision of this matter.
Rush, C.J., concurring in part and dissenting in part.
Indiana law requires the State Public Defender (SPD) to represent indigent post-conviction petitioners who are “confined in a penal facility in Indiana or committed to the department of correction due to a criminal conviction.” Ind. Code § 33-40-1-2(a). I agree with the Court that this statute encompasses individuals confined in county jails, meaning postconviction petitioners in such facilities are entitled to representation by the SPD. See ante, at 7–8. But I disagree with the Court’s holding that the trial court committed no reversible error by failing to forward Kortney Elzey’s petition to the SPD. See id. at 8. I therefore concur with Sections I and II but respectfully dissent from Section III.
In my view, the trial court committed reversible error by affirmatively denying Elzey legal representation by the SPD. To be sure, Post-Conviction Rule 1(2) did not specifically require the court to forward Elzey’s petition to the SPD. But that rule alone does not resolve the issue here, because the right to post-conviction representation is implemented in a unique way and Elzey’s circumstances are unusual.
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The trial court’s order denying Elzey’s request for appointment of the SPD was confusing and likely contributed to Elzey’s failure to obtain representation. Though Section 33-40-1-2(a) entitled Elzey to representation by the SPD, neither that statute nor any rule provides a petitioner in his position with a mechanism to access the SPD’s assistance. And so, Elzey understandably used the only mechanism that exists by expressing his desire for representation in his post-conviction petition. But the trial court went beyond merely informing Elzey it would not forward his petition; it issued an order telling him his “request for the appointment” of counsel was denied and confirming it expected him to rapidly proceed pro se. Thus, the court incorrectly suggested to Elzey that it had the authority to appoint counsel but would not do so.
Granted, Elzey might have written to the SPD directly, as the State suggests. But Elzey presumably did not know he could do that. And it is unreasonable to expect him, an unrepresented litigant, to independently seek SPD assistance when doing so would contravene a court order declaring him ineligible for such representation.
For these reasons, I would hold that the trial court committed reversible error by affirmatively denying Elzey legal representation by the SPD.