Johnson v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William Van Der Pol, Jr. Gregory F. Zoeller
Martinsville, Indiana Attorney General of Indiana

Andrew Kobe
Ann L. Goodwin
Deputy Attorneys General
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court
FILED
Jun 08 2011, 11:50 am
_________________________________
CLERK
of the supreme court,
No. 53S01-1106-CR-335 court of appeals and
tax court

RANDALL EDWARD JOHNSON,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).
_________________________________

Appeal from the Monroe Circuit Court, No. 53C09-0803-FA-00289
The Honorable Teresa D. Harper, Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 53A01-1002-CR-00038
_________________________________

June 8, 2011

Sullivan, Justice.

The defendant in this criminal case wrote the judge a few months prior to trial complain-
ing that his public defender, who had a well-documented history of neglecting clients, had been
neglecting his case. The judge passed the complaint along to the county public defender‟s office,
reasoning that she had no authority to take further action. The judge‟s failure to inquire further
did not violate Johnson‟s Sixth Amendment right to the effective assistance of counsel. We
hold, however, that a judge faced with similar circumstances must at the very least receive assur-
ances from the public defender‟s office that the complaint has been adequately addressed. But
because Johnson failed to renew his objection at trial and because defense counsel appeared at
trial and subjected the State‟s case to meaningful adversarial testing, we affirm.

Background

Randall Johnson was convicted by a jury of Class A felony child molesting1 in a trial
where the evidence showed that he had had sex with his 13-year-old niece after getting her
drunk. He was sentenced to 35 years imprisonment. A full account of the crime is outlined in
the opinion of the Court of Appeals. See Johnson v. State, 928 N.E.2d 893, 895-96 (Ind. Ct.
App. 2010).

On June 3, 2009, approximately three months prior to trial, Johnson sent a letter to the
trial court judge complaining that his public defender, Patrick Schrems, was ignoring his case. In
the letter, Johnson in some detail complained that he had not seen his attorney since August,
2008 (“and then only briefly”); that his attorney did not answer his numerous letters or return his
brother‟s phone calls; and that when they saw each other at pretrial hearings, the attorney would
tell him that he would be coming to see him at the jail but never did. Id. at 898. When the judge
got Johnson‟s letter, she “forwarded Johnson‟s complaint to the Public Defender‟s Office and
notified Johnson that [her] authority [was] limited to the appointment of the Monroe County
Public Defender Office and that it [was] the Office‟s internal obligation to assign cases to indi-
vidual public defenders.” Id. Neither the judge nor Johnson took further action on the matter
prior to trial. Johnson‟s jury trial was conducted on September 2 through September 4, 2009,
and he was sentenced on October 6, 2009. Neither Johnson nor his counsel raised any objections
to the representation during the trial or the sentencing hearing.2

1
Ind. Code § 35-42-4-3(a)(1) (2008).
2
On October 15, 2009, Johnson sent a second letter to the trial court judge informing her that he wished
to file an appeal on grounds of ineffective assistance of counsel but that neither Schrems nor the public
defender‟s office had responded to his attempts to communicate. Appellant‟s App. 23. The judge re-
sponded to this second letter on November 2, 2009, by ordering Schrems to file a Notice of Appeal on
Johnson‟s behalf. Id. at 21-22. Appellate counsel was appointed after Johnson sent a third letter to the
judge on January 14, 2010. See id. at 10-12.

2
 On appeal, Johnson raised two issues, both of which were considered and rejected by the
Court of Appeals. The court first rejected Johnson‟s claim that his Sixth Amendment right to the
effective assistance of counsel had been violated by the trial court‟s failure to conduct an ade-
quate inquiry upon receipt of his letter of June 3, 2009. Id. at 897-99. The thrust of his argument
was that counsel‟s neglect and failure to pursue the potential witnesses Johnson had identified
created an actual conflict of interest between him and counsel. The court held that only a poten-
tial conflict existed, not an actual conflict, and also that the trial court had handled Johnson‟s
complaint reasonably when it forwarded the complaint to the Monroe County Public Defender‟s
office. Id. at 898-99. Related to this issue, the court also granted the State‟s motion to strike
from Johnson‟s appellate brief any reference to the fact that Schrems had been disciplined by this
Court for conduct mirroring that which occurred in Johnson‟s case, reasoning that this was fac-
tual matter that was “not before the trial court and . . . unsubstantiated by the record on appeal.”
Id. at 896 n.1. The court also rejected Johnson‟s contention that the prosecutor had committed
prosecutorial misconduct by mischaracterizing certain forensic evidence during closing argu-
ments. Id. at 899-900.

Johnson has petitioned this Court for transfer, which we now grant, thereby vacating the
opinion of the Court of Appeals, Ind. Appellate Rule 58(A). We address only the State‟s Motion
to Strike and the Sixth Amendment claim. We summarily affirm the holding of the Court of Ap-
peals that there was no prosecutorial misconduct. App. R. 58(A)(2).

Discussion

I

As an initial matter, we disagree with the decision of the Court of Appeals to grant the
State‟s Motion to Strike portions of the defendant‟s appellate brief referencing the fact that his
counsel had been disciplined in the past and was subsequently suspended from the practice of
law on the basis that these “facts” were not before the trial court. Johnson, 928 N.E.2d at 896
n.1. This Court administers our state court system and regulates the Indiana legal profession in

3
the public‟s interest, and pursuant to those duties, we suspended the defendant‟s lawyer because
he neglected his clients, the very reason prompting the defendant‟s complaint to the trial judge in
this case. In re Schrems, 922 N.E.2d 618 (Ind. 2010); see also In re Schrems, 856 N.E.2d 1201
(Ind. 2006) (publicly reprimanding attorney for neglecting clients). This Court‟s decisions im-
posing discipline on Johnson‟s lawyer were published in the bound volumes of this Court‟s opi-
nions and were before the trial court and the Court of Appeals to the same extent as our decisions
in other litigated matters.

II

Even considering trial counsel‟s past disciplinary action, Johnson has failed to establish
that his Sixth Amendment rights were violated. The Sixth Amendment guarantees criminal de-
fendants the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,
686 (1984) (citation omitted). Claims of ineffective assistance are generally governed by the
familiar two-part standard set forth in Strickland v. Washington, which requires the defendant to
establish both (1) that counsel‟s performance was deficient, and (2) that counsel‟s deficient per-
formance prejudiced the defendant. Id. at 687-96.

Ineffective assistance of counsel can occur where counsel is burdened by a conflict of in-
terest, in which case special rules apply.3 Wood v. Georgia, 450 U.S. 261 (1981); Cuyler v. Sul-
livan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475 (1978); Glasser v. United
States, 315 U.S. 60 (1942). Here, Johnson argues that an actual conflict of interest existed be-
tween him and counsel because he wanted counsel to interview certain unidentified beneficial
witnesses but counsel chose to neglect his case and not interview those witnesses. According to
Johnson, he notified the trial court judge of this conflict and the judge failed to conduct an ade-
quate inquiry when it responded that it could do nothing but send the complaint to the Monroe
County Public Defender‟s Office; and, therefore, he argues that this case falls under Holloway
and his conviction should be reversed. We disagree.

3
A defendant, however, may waive his or her right to conflict-free counsel. Holloway, 435 U.S. at 483
n.5 (citation omitted); see also Glasser, 315 U.S. at 70 (relying on Johnson v. Zerbst, 304 U.S. 458, 464
(1938), to hold that the defendant did not waive his right to counsel); cf. Holloway, 435 U.S. at 482-83
(noting that multiple representation by counsel may be advantageous).

4
 Johnson has failed to allege even a potential conflict of interest. According to the record,
counsel‟s failure to pursue these potential witnesses was not due to any division of loyalties but
instead to counsel‟s neglect of Johnson‟s case. Johnson has not identified any other client or in-
terest to which counsel owed a duty of loyalty that challenged counsel‟s duty of loyalty to John-
son.

Even assuming that this ordinary case of attorney neglect represents a conflict of interest,
it “is not remotely the kind of conflict of interests dealt with in Cuyler v. Sullivan.” Nix v. Whi-
teside, 475 U.S. 157, 176 (1986). Although here we, like many courts, have phrased the conflict-
of-interest exception to Strickland in general terms,4 the only cases in which the U.S. Supreme
Court has applied these “conflict of interest” rules are those where counsel is conflicted because
he or she is actively representing multiple parties with conflicting interests (“multiple representa-
tion”). See Mickens v. Taylor, 535 U.S. 162, 167-70 (2002) (discussing Holloway, Sullivan, and
Wood). In Holloway, three codefendants were represented by the same counsel in a single trial
over defense counsel‟s objection to the trial court that he could not adequately represent the de-
fendants‟ divergent interests. 435 U.S. at 477-80. And in Sullivan, three defendants each ac-
cused of murder were tried separately but represented by the same counsel, and the Court re-
manded for a determination whether an actual conflict adversely affected counsel‟s strategy in
Sullivan‟s trial. 446 U.S. at 337-39, 350. The facts of Wood were slightly different in that the
three indigent defendants were represented by their employer‟s attorney, but the record sug-
gested that the employer‟s interests diverged from the defendants‟ interests so the Court re-
manded to determine whether this potential conflict was an actual conflict that adversely affected
counsel‟s performance. Wood, 450 U.S. at 266-73.

4
See Beets v. Scott, 65 F.3d 1258, 1266 (5th Cir. 1995) (en banc) (stating that “the federal circuit courts
have unblinkingly applied Cuyler‟s „actual conflict‟ and „adverse effect‟ standards to all kinds of alleged
attorney ethical conflicts”). See generally 3 Wayne R. LaFave et al., Criminal Procedure § 11.9(a) (3d ed.
2007); Mark W. Shiner, Note, Conflicts of Interest Challenges Post Mickens v. Taylor: Redefining the
Defendant‟s Burden in Concurrent, Successive, and Personal Interest Conflicts, 60 Wash. & Lee L. Rev.
965 (2003).

5
 Johnson has not alleged that his trial counsel‟s loyalties were divided between Johnson
and another client.5 We hold that Johnson has failed to establish that his trial counsel was bur-
dened by a conflict of interest sufficient to trigger the Sixth Amendment duty of inquiry under
Holloway or Sullivan.

III

Even though the Sixth Amendment did not impose a duty on the trial court judge to in-
quire into Johnson‟s complaint, we think that, under circumstances similar to those in the present
case, a judge should do more than simply pass the complaint along.

More than a century before Gideon v. Wainwright, 372 U.S. 335 (1963),6 this Court held
that indigent criminal defendants had a right to counsel provided at public expense. Webb v.
Baird, 6 Ind. 13, 18-19 (1854). Historically, Indiana trial court judges appointed indigent de-
fense counsel and mandated their compensation from their respective county treasuries. Stan-
dards for Indigent Def. Servs. in Non-Capital Cases Standard A cmt., at 1-3 (Ind. Pub. Defender
Comm‟n 2008), available at http://www.in.gov/judiciary/pdc/publications.html (last visited June
6, 2011). One of the inherent problems with this system was the lack of defense counsel‟s inde-

5
To be sure, at oral argument before this Court, Johnson‟s appellate counsel argued that Johnson had
filed a disciplinary complaint with the Indiana Supreme Court Disciplinary Commission prior to trial, but
the record is unclear. Even assuming that Johnson filed a disciplinary complaint against Schrems prior to
trial, the personal conflict of interest that would have been created is not the type of conflict to which Hol-
loway and Sullivan apply. See Mickens, 535 U.S. at 174-76 (suggesting that lower federal courts have
extended Sullivan too far in applying that lower standard to, inter alia, personal conflicts); Whiteside, 475
U.S. at 176 (holding that a conflict created by counsel‟s duty to report a client‟s intent to commit perjury
was “not remotely the kind of conflict of interests dealt with in Cuyler v. Sullivan”); Beets, 65 F.3d at
1266-72 (holding that Sullivan does not apply to personal conflicts and explaining the reasons for distin-
guishing between multiple representation and personal conflicts); cf. State v. Sinclair, 730 P.2d 742, 744
(Wash. Ct. App. 1986) (filing of disciplinary complaint by defendant not sufficient to justify disqualifica-
tion of appointed counsel). But see, e.g., Mathis v. Hood, 937 F.2d 790, 794-96 (2d Cir. 1991) (affirming
district court‟s grant of habeas relief because conflict created by defendant‟s filing of disciplinary com-
plaint under the particular circumstances was a per se violation of the Sixth Amendment); Carter v.
Commonwealth, 400 S.E.2d 540, 542-43 (Va. Ct. App. 1991) (holding that Holloway applied where de-
fense counsel sought to withdraw because the prosecution had levied allegations of attorney misconduct
against defense counsel).
6
In Gideon, the United States Supreme Court held that the Sixth Amendment and the Fourteenth
Amendment required states to appoint counsel for indigent criminal defendants, at public expense. 372
U.S. at 344-45.

6
pendence from the court; because defense counsel‟s employment relied upon the judge, it was
thought that counsel might be reluctant to represent his or her client as vigorously as necessary
for fear of alienating the judge. Id.; see also Nat‟l Right to Counsel Comm., Constitution Project
& Nat‟l Legal Aid & Defender Ass‟n, Justice Denied: America‟s Continuing Neglect of Our
Constitutional Right to Counsel 80 (2009), available at http://www.constitutionproject.org/
pdf/139.pdf (last visited June 6, 2011) (discussing the problems with lack of independence for
indigent defense counsel and concluding that “the lack of independence of the defense function
threatens the right to counsel”); cf. Cantrell v. Morris, 849 N.E.2d 488 (Ind. 2006) (answering a
certified question that arose in a suit by a former public defender alleging that a newly elected
East Chicago City Court Judge had terminated his employment due to his political affiliation).

In 1989, the General Assembly created the Indiana Public Defender Commission
(“Commission”), Pub. L. No. 284-1989, 1989 Ind. Acts 1982, 1982-92, which began a series of
reforms to improve indigent defense services. The Commission‟s original mission was to make
recommendations concerning providing indigent counsel in capital cases, most of which were
adopted by this Court in Indiana Criminal Rule 24. See generally Norman Lefstein, Reform of
Defense Representation in Capital Cases: The Indiana Experience and Its Implications for the
Nation, 29 Ind. L. Rev. 495 (1996).

In 1993, the General Assembly authorized the Commission to offer state reimbursement
to counties for the costs of indigent defense in noncapital cases, provided the counties complied
with standards established by the Commission. Pub. L. No. 238-1993, 1993 Ind. Acts 4449,
4451-52. To qualify, a county must establish a county public defender board, which appoints
indigent defense counsel at public expense for all persons financially unable to obtain a lawyer
without substantial hardship to themselves or their families. I.C. §§ 33-40-7-1 to -12; Standards
for Indigent Def. Servs. in Non-Capital Cases, supra, Standards A-B, at 1-4. Appointed counsel
must satisfy certain experiential and training requirements, which vary depending on the serious-
ness of the charge, and appointed counsel‟s caseload must be limited to a specified amount.
Standards for Indigent Def. Servs. in Non-Capital Cases, supra, Standards E-F, J-K, M, at 8-10,
13-19, 23-24. The Commission‟s standards also govern appointed counsels‟ compensation. Id.
Standards G-I, L, at 10-13, 20-23. Counties that comply with these standards are reimbursed for

7
40% of their indigent defense costs for noncapital cases. I.C. § 33-40-6-5(a)(2). Unlike the capi-
tal defense program under Criminal Rule 24, the noncapital program is optional, though the
Commission reports that it has approved comprehensive plans for 58 of Indiana‟s 92 counties,
and 50 of those counties are eligible for reimbursement. Ind. Pub. Defender Comm‟n, Annual
Report 2009-2010, at 7-8 (2010), available at, http://www.in.gov/judiciary/pdc/publications.html
(last visited June 6, 2011).

Indiana‟s reform of public defender services has been lauded by the American Bar Asso-
ciation and legal scholars alike.7 Undoubtedly, one of the most important reforms for noncapital
cases was ensuring the independence of defense counsel by transferring the duty to appoint
counsel from judges to county public defender boards. See Gerald L. Bepko, The Lefstein
Years: A Prescription for Leadership, 36 Ind. L. Rev. 7, 10 (2003) (paying tribute to the former
chair of the Indiana Public Defender Commission for working “to secure the independence of the
indigent defense function from undue judicial influence in criminal cases and post-conviction
death penalty proceedings”); Symposium on Indigent Criminal Defense in Texas, 42 S. Tex. L.
Rev. 979, 988 (2001) (statement of Dean Norman Lefstein) (“I suggest to you that the most im-
portant of those principles [developed in the indigent defense area], the most important standard,
is that no matter how indigent defense is provided, it should be structured in such a way as to en-
sure the independence of the defense function.”); see also Pablo Ros, State Program Has Its

7
See, e.g., Standing Comm. on Legal Aid & Indigent Defendants, Am. Bar Ass‟n, Gideon‟s Broken
Promise: America‟s Continuing Quest for Equal Justice 36 (2004), available at http://www.americanbar.
org/content/dam/aba/migrated/legalservices/sclaid/defender/brokenpromise/right_to_counsel_in_criminal
_proceedings_fullreport.authcheckdam.pdf (last visited June 6, 2011) (“The Indiana legislation was cited
in an ABA resolution as an effective means for enforcing indigent defense standards.” (citing Standing
Comm. on Legal Aid & Indigent Defendants, Am. Bar Ass‟n, Report with Recommendation to the ABA
House of Delegates (Aug. 1998))); Lord Windlesham, Politics, Punishment, and Populism 137 (1998)
(stating that “[f]ew states could match an Indiana initiative to improve the quality” of indigent criminal
defense); John Gibeaut, Declaring Independence, A.B.A. J., Dec. 2001, at 41, 41 (providing that experts
often cite as an example the Indiana Public Defender Commission‟s efforts in “making sure defenders
operate autonomously and follow uniform standards”); Robert L. Spangenberg & Marea L. Beeman, In-
digent Defense Systems in the United States, 58 Law & Contemp. Probs. 31, 39-40 (1995) (noting the
improvements in Indiana‟s indigent defense system due to the work of the Commission); Scott Wallace &
David Carroll, The Implementation and Impact of Indigent Defense Standards, 31 S.U. L. Rev. 245, 292-
96 (2004) (discussing the myriad benefits experienced by Vanderburgh County, Indiana, once it joined
the program for noncapital cases); Randall T. Shepard, State of the Judiciary: “What Has Indiana Done
About This?”, Res Gestae, Feb. 2000, at 15, 15 (“When the American Bar Association recently urged that
all states adopt minimum standards for indigent defense, its House of Delegates held up Indiana as a
model for others to follow.”).

8
Faults; But Proponents Say It Will Benefit County‟s Public Defender System, South Bend Trib.
(Indiana), June 4, 2007, at A1 (quoting the chief public defender of Lake County, Indiana, as
stating that the partnership with the Commission was a “„win-win situation for everybody,‟” in
part because public defenders were no longer employed by the judges). Such independence pro-
tects the integrity of the attorney-client relationship.

A decade after the General Assembly initiated Indiana‟s reform, the British Parliament
enacted a statute to reform England‟s provision of public legal services. Access to Justice Act,
1999, c. 22 (Eng.); see also 4 Lord Windlesham, Responses to Crime: Dispensing Justice 133-64
(2001) (discussing the reforms aimed at public legal defense services). The problems prompting
England‟s reforms were not lack of independence from judges or ineffective assistance of coun-
sel, as they were in Indiana and across the United States. Rather, England‟s problems were
borne of over-bureaucratizing public legal services. See 4 Windlesham, Responses to Crime,
supra, at 135-37 (discussing the ever increasing costs of legal aid in England prior to the Access
to Justice Act). Legal services were entirely within the purview of bureaucratic agencies and
judges had no role, which resulted in inefficiency and overspending. See id. at 140-41 (discuss-
ing the problems with the civil justice system, which were caused by fragmentation and disorga-
nization, and suggesting that the remedy for those problems was to “drive down cost and delay in
court proceedings through firm judicial management”).

Although indigent defense counsel must have professional independence, judges cannot
take a complete “hands-off” approach and totally rely on a bureaucratic agency, lest we develop
problems similar to those that occurred in England. In fact, the standard for independence re-
quires only that appointed defense counsel “„be free from political influence and should be sub-
ject to judicial supervision only in the same manner and to the same extent as are lawyers in pri-
vate practice.‟” Standards for Indigent Defense Services in Non-Capital Cases, supra, Standard
A cmt., at 2 (quoting Standards for Criminal Justice: Providing Defense Services Standard 5-1.3,
at 13 (3d ed. 1990)).

In reforming our public defender system, the General Assembly intended for the trial
judge to retain some authority with regard to indigent defense counsel. For example, a county‟s

9
decision to adopt the Commission‟s standards and seek reimbursement “does not prevent a court
from appointing counsel other than counsel provided for under the board‟s plan for providing
defense services to an indigent person when the interests of justice require.” I.C. § 33-40-7-
10(a). And a judge can make a written request to the state public defender to have a qualified
attorney appointed if the judge determines either “(1) that an attorney provided under the county
public defender board‟s plan is not qualified or available to represent the person; or (2) that in
the interests of justice an attorney other than the attorney provided for by the county defender
board‟s plan should be appointed.” I.C. § 33-40-7-10(b).

To be sure, trial court judges often receive letters from disgruntled defendants complain-
ing about their appointed lawyers, and many of these complaints – we are willing to assume most
– will be unfounded. It would be impossible and unreasonable for a judge to investigate every
such complaint. But in instances like this, where appointed counsel has a track record of the pro-
fessional misconduct complained of, the judge should at minimum require assurance from the
public defender‟s office that the issue will be resolved. This would neither inhibit the indepen-
dence of public defenders nor impose an onerous burden on our trial judges.

Although the trial court judge failed to receive assurance from the public defender‟s of-
fice in this case, that failure did not prejudice the defendant. Johnson sent his letter three months
before trial and then did not raise the issue again until after his sentencing hearing. Counsel ap-
peared several times on Johnson‟s behalf prior to trial, and both Johnson and his counsel were at
trial. Counsel gave an opening statement, cross-examined the prosecution‟s witnesses, and gave
closing arguments. The only witness called by defense counsel was the defendant himself, and
his testimony essentially denied everything established by the victim‟s testimony and that of oth-
er prosecution witnesses. The jury, however, found the victim‟s testimony and the testimony of
other prosecution witnesses more reliable and found the defendant guilty. There is nothing to
suggest that the outcome would have been different or that the trial was not reliable solely be-
cause the trial court failed to receive assurances from the public defender‟s office that Johnson‟s
complaint had been addressed.

10
 We emphasize that this duty stems not from the Sixth Amendment or any provision of the
Indiana Constitution, but from this Court‟s supervisory powers and a trial court judge‟s inherent
authority over the parties and proceedings before it.

Conclusion

We affirm the defendant‟s conviction.

Shepard, C.J., and Dickson, Rucker, and David, JJ., concur.

11