Frequently Asked Questions

1. What does the Public Defender of Indiana do?
2. How does someone become a client of the Public Defender of Indiana?
3. How long does a non-capital case take?
4. Are there deadlines for filing challenges to convictions?
5. On what cases will the Public Defender of Indiana provide representation?
6. On what cases or issues does the Public Defender not provide representation?
7. When will the Public Defender of Indiana refuse further representation due to lack of merit?

1. What does the Public Defender of Indiana do?

The Public Defender of Indiana provides representation for Indiana post-conviction relief actions to convicted and sentenced adults, and adjudicated and committed juveniles, who are incarcerated and serving (or subject to future service of) a sentence or commitment imposed by an Indiana court, and are indigent, that is, unable to afford hired counsel.

2. How does someone become a client of the Public Defender of Indiana?

In non-capital cases (the sentence is a term of years or life without parole), the person seeking representation must:

1. file a petition for post-conviction relief in the court where the conviction was entered.  (A petition is filed on a form that is available in all Indiana Department of Correction institutional law libraries, by writing to the Public Defender of Indiana, or online at courts.in.gov;
2. answer “Yes” on Question 18(a) of the form, which asks “Do you wish to have the Public Defender represent you?”  Any answer other than “Yes” on Question 18(a), such as no, maybe, not at this time, etc., results in loss of the right to representation by the Public Defender; and
3. complete the Affidavit of Indigency portion of the form.

(The Public Defender of Indiana, as a general rule, does not provide representation for an appeal where the post-conviction litigation in the trial court was done pro se or by hired counsel.)

The trial judge, pursuant to Ind. Post-Conviction Rule 1(2), upon making a finding of indigency, shall allow the petitioner to proceed without payment of a filing fee, and upon further finding that the petitioner is incarcerated and has requested representation, shall order a copy of the petition sent to the Public Defender of Indiana.

In capital cases, representation by the Public Defender of Indiana is automatic if the petitioner is indigent. The office will enter an appearance within thirty days of completion of rehearing on direct appeal, as required by Ind. Criminal Rule 24(H).

3. How long does a non-capital case take?

The Public Defender of Indiana endeavors to handle non-capital cases in the order filed, subject to court order and other exceptions.  Demand for services is high and there is a significant backlog of cases awaiting review.  There were 28,704 individuals in the Department of Correction on February 28, 2009, and the Public Defender of Indiana opened files in 546 cases in FY 05-06, 553 in 06-07, and 564 in 07-08.

4. Are there deadlines for filing challenges to convictions?

Not in state court, but the post-conviction action should be filed promptly because unreasonable delay that would prejudice the State in re-prosecuting the case is grounds to deny the petition on the basis of laches.  Moreover, the ability to seek relief in a habeas corpus action in federal court after unsuccessful state court post-conviction relief litigation is subject to a one-year statute of limitations that begins to run when the conviction is final, but is tolled while a properly filed state post-conviction petition is pending.

Juveniles wishing to challenge their adjudications should write to the Public Defender of Indiana office as soon as possible.

In capital cases, representation by the Public Defender of Indiana is automatic if the petitioner is indigent. The office will enter an appearance within thirty days of completion of rehearing on direct appeal, as required by Ind. Criminal Rule 24(H).

5. On what cases will the Public Defender of Indiana provide representation?

The Public Defender of Indiana will provide representation to any indigent person committed to the Indiana Department of Correction, including someone incarcerated out-of-state on an Indiana conviction, if the conviction has present penal consequences.  A conviction has present penal consequences in the following circumstances:

1. the conviction/sentence is currently being served;
2. multiple convictions/sentences are consecutive to each other;
3. a prior conviction that supports a repeat offender enhancement (habitual offender, repeat sexual offender, habitual substance offender, or serious violent felon); or
4. a prior misdemeanor that enhanced the current conviction to felony.

If a case has present penal consequences, the Public Defender of Indiana will conduct full legal and factual investigation and consult with the client to determine whether there are any issues of arguable merit, either raised pro se or to be added by amending the petition.  If the case is meritorious, the Public Defender of Indiana will represent the petitioner at hearing and on appeal (if meritorious for appeal) in the Indiana courts.  The office does not provide representation in federal court.

Effect of release from incarceration:  If a client is released from incarceration before a scheduled post-conviction evidentiary hearing, the Public Defender of Indiana will not represent the client at the hearing or on any appeal in the case.  If a client is released after an evidentiary hearing, the Public Defender of Indiana will continue the representation for an appeal, if the appeal is meritorious and the client wishes to pursue it.

6. On what cases or issues does the Public Defender not provide representation?

1. A case without present penal consequences, as defined in paragraph 5.  The following circumstances do not qualify as having present penal consequences: (i) a prior conviction was used as an aggravating factor in the sentencing of the current case but not as part of a repeat offender enhancement; (ii) concurrent sentences, after the longest has been determined to be valid; and (iii) a prior conviction that supports a habitual traffic offender conviction.
2. Timely direct appeal – of jury trials, bench trials, sentences on open guilty pleas, probation revocations, interlocutory appeals, etc. – except when appointed and paid by the trial court, per Ind. Code 33-40-2.
3. An appeal in a post-conviction relief action that was litigated in the trial court either pro se or by private counsel. However, if the PCR was litigated by private counsel, upon request for representation on appeal, the Public Defender of Indiana will review the trial court decision, and may elect to provide counsel if there is a substantial possibility for success in the appeal.
4. A combined direct appeal and post-conviction relief action (a so-called Davis/Hatton proceeding).
5. A non-capital case where a pro se petition for post-conviction relief has not been filed.
6. A successive petition (P-C.R. 1(12)), unless permission for it to be filed has been granted by the Indiana Court of Appeals or Supreme Court.
7. Any proceeding to revoke probation or parole, and any ensuing appeal.
8. A post-conviction relief action, first or successive, challenging a revocation of probation or parole.
9. At a Parole Board hearing or a clemency proceeding.
10. Any proceeding of a DOC conduct adjustment board or other disciplinary body, and any administrative appeal of any resulting sanction.
11. A lawsuit relating to conditions of confinement (such as food, medical treatment, religious practice, etc.).  Complaints about such matters and other DOC policies and procedures may be raised with the DOC Ombudsman, online at http://www.in.gov/idoc/2318.htm.
12. Any civil case (divorce, small claims, etc.).  Information on self-representation or finding legal aid for such cases is online at Indiana Legal Help, https://indianalegalhelp.org/.
13. A claim involving earned credit time for completing educational, vocational, or substance abuse programs under Ind. Code 35-50-6-3.3.
14. A motion for sentence modification, unless it is part of a post-conviction relief action in which the office is providing representation.
15. Public Defender of Indiana lawyers do not appear as stand-by counsel or as co-counsel.
16. Public Defender of Indiana lawyers do not provide representation in federal court.

7. When will the Public Defender of Indiana refuse further representation due to lack of merit?

If after full legal and factual investigation, and consultation with the client, it is determined there are no issues of arguable merit and that proceeding is not in the interests of justice, the Public Defender lawyer will withdraw from representing the client, as authorized by P-C.R. 1(9)(c).  This determination may be made before or after an evidentiary hearing.

After a withdrawal of appearance under P-C.R. 1(9)(c), the petitioner retains the right to proceed pro se but is not entitled to legal representation by the Public Defender of Indiana, unless the trial court, under P-C.R. 1(4)(e), makes a preliminary finding that the proceeding is meritorious and in the interests of justice, and orders the Public Defender of Indiana to resume the representation.

Footnotes1 Present penal consequences [Rule P-C.R.1, Sec. 9(a)] include: i) currently serving sentence; ii) sentence delaying commencement of another sentence or to be served consecutively; iii) underlying felony on a current habitual enhancement; iv) misdemeanor(s) only if caused current sentence to be felony.  Priors cited to enhance sentence above advisory are not considered to have present penal consequences given the fact that current law permits consideration of arrests/vacated convictions.

2 The Pro Se Petitioner*

I. Transcripts
a)  Guilty Plea & Sentencing.  Prior to the filing of a pro se petition for post-conviction relief, some courts provide indigent inmates with copies of plea and sentencing transcripts; some courts do not.  Once a petition is filed, Rule P-C.R.1, Sec. 9(b) provides the petitioner is entitled to such transcripts prior to hearing if the petition is not dismissed.  Rule P-C.R.1, Sec. 4(d) requires that in proceedings "challenging a sentence imposed following a plea of guilty, the court shall make a part of the record the certified transcript made pursuant to Rule CR-10."  Where the State Public Defender has investigated the case and filed a withdrawal of appearance, the inmate will be provided copies of plea and sentencing transcripts as well as other documents obtained during the investigation of the case.

b) Record of Proceedings (after Direct Appeal).  Prior to the filing of a pro se petition, indigent inmates can petition the appropriate appellate court for a copy of the record filed on appeal.  The Supreme Court and Court of Appeals normally grant the first such petition, as long as the petitioner is not represented by counsel, and order the existing appellate transcript copied and delivered by the State Public Defender.  If an inmate has filed a petition and is represented by private counsel or the State Public Defender, he cannot obtain a personal copy; access is vicarious, through counsel.  The State Public Defender does not generally copy appellate records in the course of P-C.R. investigation.  In the event counsel withdraws, inmates will have to petition for a copy of the record.  The State Public Defender will provide any copy which is made, as well as other documents obtained during case investigation, when the withdrawal of appearance is filed.

II. Hearing and Appeal
Indigent petitioners must be provided with access to the courts, as a matter of equal protection, and, to insure exhaustion of State court remedies for federal habeas corpus, must have an opportunity for a full and fair hearing [see 28 U.S.C. Sec. 2254(d)].  Section 9(b) of Rule P-C.R.1 therefore provides for production of the petitioner and for issuance of subpoenas for witnesses, when required for a full and fair determination of the issues raised.  Indigents proceeding pro se are further entitled under Sec.9(b) to a record of the post-conviction proceeding at public expense to appeal the denial or dismissal of the petition.

*The State Public Defender does not provide pre-petition representation in non-capital cases.  Inmates are advised that a pro se petition must be filed before an appearance can be entered.  The backlog of cases makes it impossible to provide case review before a petition is filed.  The State Public Defender cannot purchase transcripts (generally guilty plea and sentencing) under I.C. 33-1-7-5 unless the office represents the petitioner: so those who have no petition on file requesting representation, or those who chose to proceed pro se or are not entitled to State Public Defender representation, cannot receive plea and sentencing transcripts (or any records not included in the appellate record) through the State Public Defender's office.