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ATTORNEYS FOR APPELLANT Susan K. Carpenter Public Defender of Indiana Adam J. Carter Deputy Public Defender Indianapolis, IN

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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 sentences 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 procedures and methods. We highlight key terms as we go. First, as a general rule, a person convicted 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 appeals, 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 Defender 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 purpose 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

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Indiana Law