ATTORNEYS FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
Adam J. Carter
Deputy Public Defender
Indianapolis, IN
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 20S00-0511-CR-612
RODNEY D. KLING,
Appellant (Petitioner below),
v.
STATE OF INDIANA,
Appellee (Respondent below).
_________________________________
Motion for Writ In Aid of Appellate Jurisdiction
Directed to the Elkhart Superior Court, No. 20D03-0502-PC-3
The Honorable George W. Biddlecome, Judge
_________________________________
On Petition to Transfer Pursuant to Appellate Rule 56(A).
_________________________________
November 29, 2005
Sullivan, Justice.
Our decision last year in Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004), held that an
individual who pleads guilty to an offense in an “open plea” and who challenges the sentence
imposed must do so on direct appeal and not by means of a petition for post-conviction relief.
Collins has given rise to questions concerning the relative roles and responsibilities of county
appellate public defenders and the State Public Defender in handling belated appeals of sen-
tences imposed following open pleas. We address those questions in this opinion.
Background
Because this case involves the somewhat technical interplay of the procedures for direct
and collateral review of criminal convictions and sentences and of the method by which lawyers
are provided to indigent persons seeking review, we start with a brief overview of these proce-
dures and methods. We highlight key terms as we go. First, as a general rule, a person con-
victed and sentenced for a crime has the right to appeal the conviction and sentence to the Court
of Appeals and then to this Court. This Court’s Rules of Appellate Procedure govern direct ap-
peals, including time deadlines. An indigent person filing such a “direct appeal” has the right to
have a lawyer handle the appeal, paid for by the county where convicted. (We will refer to such
a lawyer as a “County Appellate Public Defender.”) Second, again as a general rule, a person
may challenge a conviction or sentence on the basis of issues unknown or not available at trial by
filing what is called a “petition for post-conviction relief.” This Court’s Post-Conviction Rule 1
governs post-conviction proceedings. “Post-conviction” proceedings are often referred to as
“collateral review” because they occur by means of filing a new lawsuit. Third, in a typical
situation, a convicted and sentenced person who is indigent initiates collateral review by filing a
pro se petition for post-conviction relief. 1 As soon as practicable thereafter, the State Public De-
fender assumes representation, an amended petition for post-conviction relief is filed, and the
post-conviction proceedings commence in earnest. If post-conviction relief is denied, the State
Public Defender continues as the petitioner’s lawyer in any appeal. The State Public Defender is
paid by the State, not the county.
A special set of rules applies if a convicted and sentenced person does not file a direct
appeal on a timely basis. This Court’s Post-Conviction Rule 2 governs these so-called “belated
appeals.” Another special set of rules applies if a conviction and sentence are entered following
a guilty plea. These rules, enunciated in this Court’s opinions, can be summarized for this pur-
pose as follows. A person who pleads guilty cannot challenge the conviction by means of direct
appeal but only through a petition for post-conviction relief; one of the things a person gives up
by pleading guilty is the right to a direct appeal. Tumulty v. State, 666 N.E.2d 394 (Ind. 1996).
1
Of course, non-indigent post-conviction petitioners are free to proceed pro se or hire private counsel to
represent them.
2
But if, in a guilty plea situation, there is no agreement between the defendant and the State as to
the sentence to be imposed – called an “open plea,” i.e., one where the judge has discretion as to
the sentence to be imposed, the sentence can, indeed must, be challenged (if at all) by means of a
direct appeal. Collins v. State, 817 N.E.2d 230 (Ind. 2004).
This case primarily addresses the relative roles and responsibilities of County Appellate
Public Defenders and the State Public Defender in handling belated appeals of sentences im-
posed following open pleas.
Several years ago, Rodney D. Kling and the State entered into an agreement under which
he pled guilty to certain offenses. Under the terms of the plea agreement, the sentence was left to
the discretion of the trial court – it was an “open plea.” Kling did not challenge the sentence by
means of a direct appeal. He later filed a petition for post-conviction relief under P-C.R. 1 that
included a challenge to his sentence as “erroneous.” Still later, Kling, represented by the State
Public Defender, sought to withdraw his petition for post-conviction relief without prejudice and
requested appointment of counsel at county expense to investigate and pursue a belated direct
appeal. The Elkhart Superior Court No. 3 granted Kling’s request to withdraw his P-C.R. 1 peti-
tion without prejudice but denied his request for appointment of counsel at county expense to
pursue relief under P-C.R. 2. On Kling’s behalf, the State Public Defender requests (1) an order
from this Court requiring the appointment of counsel for him at local expense so he can pursue
proceedings under P-C.R. 2, and (2) an order generally applicable to all cases in a similar proce-
dural posture directing that counsel be appointed at local expense to pursue proceedings under P-
C.R. 2. 2
2
Kling’s papers filed with our Court are entitled, “Verified Motion, Pursuant To Ind. Appellate Rule 56,
Requesting Indiana Supreme Court To Accept Jurisdiction Of The Verified Motion For A Writ In Aid Of
Appellate Jurisdiction And Motion For Instructions On How To Proceed Pursuant To Collins v. State.”
As such, Kling seeks transfer under Indiana Appellate Rule 56(A), which allows this Court to accept ju-
risdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals, if the
appeal involves a substantial question of law of great public importance and an emergency exists requir-
ing the question’s speedy determination. Although Kling has not initiated an appeal, this Court may as-
sume jurisdiction to “provid[e] guidance on important procedural questions” even when the transfer peti-
tion does not fit within the requirements of the Appellate Rules. See Tyson v. State, 593 N.E.2d 175, 180
(Ind. 1992). We grant transfer for that limited purpose here.
3
In support of Kling’s second request, his papers filed in this Court are accompanied by
materials from several other cases raising the same or similar issues. One is a copy of a March
24, 2005, order from the Marion Superior Court, Criminal Division No. 6, in James Frazier v.
State, No. 49G06-0403-PC-042001. Frazier failed to file a direct appeal and later filed a P-C.R.
1 petition raising several challenges to his guilty plea but no claim regarding his sentence. Later,
Frazier, represented by the State Public Defender, asked the post-conviction court to dismiss
without prejudice his pending P-C.R. 1 petition and appoint counsel at county expense to inves-
tigate and pursue relief under P-C.R. 2. The trial court in Frazier directed the State Public De-
fender to confer with the Appellate Division of the Marion County Public Defender Agency
(whose attorney would represent Frazier in a direct appeal) to ascertain whether it was in Fra-
zier’s best interest to delay litigation of his P-C.R. 1 petition in exchange for pursuing a belated
appeal of his sentence under P-C.R. 2. At our invitation, the judge in Frazier’s case, the Honor-
able Judge Jane Magnus-Stinson, submitted additional information relating to Frazier’s case. 3
The materials submitted by Judge Magnus-Stinson have been helpful to the Court and we ex-
press our appreciation to her.
Discussion
The issues raised here derive from our decision referred to above, Collins v. State. 4 Prior
to Collins, there was a split in authority over whether the proper procedure to challenge a sen-
3
Among the additional information was a May 18, 2005, order indicating that Kling’s counsel had not
complied with the directive in the March 24, 2005, order requiring a conference between counsel. The
May 18, 2005, order also denied Frazier’s motion to dismiss his P-C.R. 1 petition and appoint counsel at
local expense. The Deputy State Public Defender representing Kling filed a response with this Court ad-
mitting he did not confer with the Marion County Public Defender Agency before the trial court’s May
18, 2005, order.
4
Another issue Collins left open is whether a plea agreement with a term capping the judge’s sentencing
discretion to within a particular sentencing range (thereby guaranteeing the defendant something less than
the maximum possible sentence) is, like a plea agreement that contains no term regarding sentencing, an
“open plea,” the sentence for which may be appealed. See Young v. State, 826 N.E.2d 665 (Ind. Ct. App.
2005) (acknowledging a difference of opinion in Court of Appeals’ opinions whether a defendant who
enters a plea agreement with sentencing cap may later challenge the appropriateness of a sentence that
does not exceed the cap), vacated by transfer grant. On September 28, 2005, we heard oral argument and
granted transfer in two cases raising that issue, and they remain pending as of the date of this opinion.
See Gary L. Carroll v. State, No. 61A04-0409-CR-483, slip op. (Ind. Ct. App. May 4, 2005) (unpub-
lished), vacated; Roger D. Childress v. State, No. 61A01-0409-CR-391, slip op. (Ind. Ct. App. April 14,
2005) (unpublished), vacated.
4
tence imposed upon an “open plea” of guilt was by means of a direct appeal or by means of col-
lateral review under P-C.R. 1. Collins decided the issue by holding that the proper procedure for
challenging such a sentence is to file a direct appeal or, if the time for filing a direct appeal has
run, to seek permission to file a belated direct appeal under P-C.R. 2. Id. at 231. (Because
Collins’s challenge to his sentence had been brought under P-C.R. 1, we remanded his case to
the post-conviction court with instructions to vacate its order denying Collins’s P-C.R. 1 petition
and dismiss that petition without prejudice to any right Collins might have to file a belated ap-
peal under P-C.R. 2. Id.)
Now that it is clear that a sentence imposed upon an open plea must be challenged, if at
all, on direct appeal, the State Public Defender takes the position that she has no role or respon-
sibility with respect to such an appeal because her sole duty is to provide representation to indi-
gent inmates seeking post-conviction relief. She first points out that Indiana Code § 33-40-1-
2(a) provides that the State Public Defender shall represent an indigent person who is confined in
a penal institution in Indiana or committed to the Department of Correction on a criminal convic-
tion or delinquency adjudication “in a postconviction proceeding testing the legality of the per-
son’s conviction, commitment, or confinement, if the time for appeal has expired.” Our own
rule, she adds, also designates the State Public Defender as the attorney available for indigent
inmates who request the assistance of counsel in pursuing relief under P-C.R. 1. See P-C.R. 1, §
9(a). On the other hand, her argument continues, when an indigent defendant in a criminal case
requests the assistance of counsel in filing a direct appeal of his conviction or sentence, it is the
trial court’s responsibility to arrange for, and the county’s responsibility to fund, counsel to assist
the defendant in taking that appeal. See Ind. Code § 33-40-2-1 et seq.; State ex rel. White v.
Hilgemann, 218 Ind. 572, 34 N.E.2d 129 (1941).
We agree that an indigent person who is convicted and sentenced and desires to appeal is
entitled to the assistance of counsel in pursuing that appeal. In the ordinary case, the trial court
5
should arrange for the appointment of counsel, at local (county) expense, 5 if the indigent defen-
dant requests the assistance of counsel in pursuing an appeal.
But the State Public Defender’s argument goes further. She contends that she has no role
or responsibility in respect to a person sentenced under an open plea until the possibility of a sen-
tencing claim has been investigated and, if one exists, pursued on direct appeal. She maintains
that she cannot seek collateral review on behalf of a person sentenced under an open plea until
the possibility of a sentencing claim has been investigated by a County Appellate Public De-
fender and, if a claim exists, pursued on direct appeal; and that if she has taken on representation
of a person so sentenced where the possibility has not been investigated (or, in the course of her
representation, has been discovered), she must seek dismissal and appointment of a County Ap-
pellate Public Defender.
We have a different view. We hold when the State Public Defender represents a peti-
tioner in a P-C.R. 1 proceeding, the State Public Defender, following her review the record, must
consult with her client regarding both the issues that may be raised in a P-C.R. 1 petition and
those that may be pursued only through a belated direct appeal. This process should involve
some assessment of the relative chances for success in each proceeding, including some consid-
eration whether the client would likely be able to meet the burden of proving lack of fault and
diligence under P-C.R. 2. 6
After such consultation and evaluation, the client will be in a position to make an in-
formed decision about whether to proceed under P-C.R. 1 or P-C.R. 2. See Ind. Professional
5
We use the phrase “local expense” even though qualifying counties have the opportunity to seek reim-
bursement, through Public Defense Fund established in Indiana Code chapter 33-40-6, for a portion of the
cost of providing legal representation for indigent defendants.
6
Post-Conviction Rule 2(1) provides in part:
Where an eligible defendant convicted after a trial or plea of guilty fails to file a timely notice of
appeal, a petition for permission to file a belated notice of appeal for appeal of the conviction may
be filed with the trial court, where:
(a) the failure to file a timely notice of appeal was not due to the fault of the defendant;
and
(b) the defendant has been diligent in requesting permission to file a belated notice of ap-
peal under this rule.
The trial court shall consider the above factors in ruling on the petition.
6
Conduct Rule 1.4 (Communication) cmt. 5 (“The client should have sufficient information to
participate intelligently in decisions concerning the objective of the representation and the means
by which they are to be pursued, to the extent the client is willing and able to do so.”). In this
respect, the responsibility of the State Public Defender is the same as in other kinds of cases, in-
cluding, for example, those in which a person is found guilty after a trial, fails to appeal, and
thereafter files a P-C.R. 1 petition.
If a person so advised by the State Public Defender decides to seek relief immediately
under P-C.R. 2 and dismiss the P-C.R. 1 proceeding, the State Public Defender should represent
the defendant in filing that P-C.R. 2 petition, at any hearing on that petition, and, if relief is de-
nied, in the appeal of that decision. (This responsibility does not obtain where the State Public
Defender determines that a sentence being challenged has no penal consequences or where a P-
C.R. 2 petition is not meritorious or in the interest of justice. Cf. P-C.R. 1, § 9(a) & (c). If the
State Public Defender does not appear in connection with the P-C.R. 2 petition after making such
a determination, the petitioner retains the right to proceed pro se on the P-C.R. 2 petition. 7 ) In
any event, if the trial court grants permission to file a belated notice of appeal or belated motion
to correct error, or if an appellate court grants a person permission to file a belated appeal or re-
verses the trial court and orders the trial court to grant relief under P-C.R. 2, it would then be-
come the duty of the trial court to appoint a County Appellate Public Defender to perfect the di-
rect appeal or litigate the belated motion to correct errors.
The State Public Defender contends that she cannot represent Kling at state expense in
connection with a P-C.R. 2 proceeding because if Kling is entitled to relief under that rule, the
time for appeal has not expired within the meaning the statute defining the State Public De-
fender’s duties, Indiana Code § 33-40-1-2. However, “[t]he time for appeal which the legislature
had in mind in this statute is the time allowed in the course of ordinary procedure.” State ex rel.
Walker v. Youngblood, 225 Ind. 375, 75 N.E.2d 551 (1947). The relief available through P-C.R.
2 is available only when, in the course of ordinary procedure, the time has expired for filing a
notice of appeal or a motion to correct errors or perfecting an appeal. In any event, this statute
7
Again, non-indigent post-conviction petitioners are free to proceed pro se or hire private counsel to rep-
resent them.
7
defining the State Public Defender’s duties to represent indigent inmates sets out the minimum
duties and this Court “may add such duties as are necessary in order to make the Public Defender
an effective instrument for handling post-conviction remedies.” In re Baxter, 254 Ind. 1, 252
N.E.2d 807, 808 (1969).
Transferring the representation from the State Public Defender to a County Appellate
Public Defender at the point when relief is granted under P-C.R. 2 appears consistent with the
authority Kling himself cites. In Courtney C. Dixie v. State, No. 02A03-9009-CR-396, the State
Public Defender filed on Dixie’s behalf a petition for permission to file a belated appeal along
with a request for an order directing the trial court to appoint a County Appellate Public De-
fender, alleging that the State Public Defender was not statutorily authorized to represent an in-
digent defendant on direct appeal absent a formal appointment by the trial court. The Court of
Appeals granted Dixie permission to file a belated appeal and then directed the trial court to ap-
point counsel to pursue a direct appeal on Dixie’s behalf.
Dixie is not the only case in which the State Public Defender has represented persons
seeking relief under P-C.R. 2. See, e.g., Pike v. State, 569 N.E.2d 650 (Ind. 1991) (noting State
Public Defender represented defendant in appeal from trial court’s denial of his motion for per-
mission to file belated motion to correct errors); James v. State, 541 N.E.2d 264 (Ind. 1989) (not-
ing State Public Defender filed a petition for permission to file a belated motion to correct errors
on defendant’s behalf and represented him on appeal from the trial court’s denial of that peti-
tion); Clark v. State, 506 N.E.2d 819 (Ind. 1987) (same).
We also decline Kling’s invitation to decide, in a one-size-fits-all manner, whether any
person who elects to continue litigating a P-C.R. 1 petition — with potential claims presentable
only in a direct appeal waiting in the wings — will later be able to demonstrate diligence as part
of a possible P-C.R. 2 proceeding. The factual determination of diligence is one for the trial
court or appropriate appellate court to make in the context of a particular case when P-C.R. 2 re-
lief is sought. However, as a general matter, electing to proceed first on a P-C.R.1 claim does
not preclude a finding of diligence in a later P-C.R. 2 claim. Nor does the time spent by the State
Public Defender investigating a claim count against the defendant when courts consider the issue
8
of diligence under P-C.R. 2. Finally, with respect to P-C.R. 2 petitions filed by persons sen-
tenced in “open pleas,” we think it appropriate for courts to keep in mind that Collins resolved a
conflict in earlier Court of Appeals’ opinions regarding whether such a defendant could include a
sentencing challenge in a P-C.R. 1 petition, see 817 N.E.2d at 231, and some delay may be at-
tributable to the prior uncertainty in the law rather than the defendant’s lack of diligence.
Conclusion
Having granted transfer, we deny Kling’s request for a writ in aid of appellate jurisdic-
tion.
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
9