Opinion
No. 28,486.
Filed October 14, 1948.
1. CRIMINAL LAW — Trial — Counsel for Accused — Constitutional Right — Duty of Court to Appoint. — The constitution provides that every person accused of a crime is entitled to be heard by himself and counsel, and under this provision if a defendant in a criminal action is so poor that he cannot employ counsel at his own expense, it is a duty of the trial court to appoint him competent counsel at public expense. Indiana Constitution, Art. 1, § 13. p. 393.
2. CRIMINAL LAW — Trial — Counsel for Accused — Rights of Accused and Duty of Court in Appointment — Selection Within Court's Sound Discretion. — In appointing an attorney for a poor defendant in criminal actions, the trial court is not required to appoint an attorney selected by the defendant, although defendant may be consulted and his wishes ascertained and considered; however, the choice of an attorney to represent a pauper defendant is wholly for the sound discretion of the trial court which cannot be controlled or reviewed, except for abuse, and then only on appeal. p. 394.
3. CRIMINAL LAW — Appeal — Questions Considered Upon Review — Manner of Performance of Pauper Attorney. — If an appointed attorney on appeal in a criminal action has been derelict in the performance of his duties toward the accused, the Supreme Court on appeal may ascertain and determine from the record and briefs whether or not the accused has been represented fairly and competently in the trial and appeal, or whether his attorneys have served only perfunctorily. p. 394.
4. MANDAMUS — Appointment of Pauper Attorney in Criminal Action — Manner of Performance of Defense Not Subject of Mandamus Action. — Where defendant has been convicted and sentenced to death and trial court had appointed an attorney to take an appeal which was pending in the Supreme Court, and defendant commenced an original mandamus action because he was not satisfied with the way his pauper attorney was handling his case, the Supreme Court, not in this original mandamus action, but in considering the appeal, would ascertain and determine whether or not the defendant was represented fairly and competently. p. 394.
Original action upon petition for writ of mandamus by the State of Indiana on relation of Robert O. Brown against Robert E. Thompson, Special Judge of the Jasper Circuit Court, directing the respondent to discharge the pauper attorney duly selected by him and to appoint a competent and conscientious counsel.
Petition denied.
Robert O. Brown, pro se.
This is an original action by relator in which he avers that he was convicted in the Jasper Circuit Court, December 2, 1947, and sentenced to death. That he has appealed from said judgment to this court, and the appeal is now pending, as No. 28418.
Relator's complaint is that the pauper attorney provided by the trial court to prepare and complete the appeal is not taking care of the matter, particularly as to briefing the case, to relator's satisfaction. He therefore asks this court to mandate the respondent, the special judge who presided at relator's trial, to discharge the duly selected pauper attorney, who has appealed and briefed his case, "and to appoint competent conscientious counsel" for the perfection of relator's appeal.
Every person accused of crime is entitled "to be heard by himself and counsel." Art. 1 Sec. 13 Indiana Constitution. Under this constitutional provision if a defendant in a criminal 1. action is so poor that he cannot employ counsel at his own expense, it is a duty of the trial court to appoint him competent counsel at public expense. State ex rel. White v. Hilgemann, Judge (1941), 218 Ind. 572, 34 N.E.2d 129; Knox County Council v. State ex rel. McCormick (1940), 217 Ind. 493, 510, 516, 29 N.E.2d 405; Lloyd v. State (1933), 206 Ind. 359, 363, 364, 189 N.E. 406; Batchelor v. State (1920), 189 Ind. 69, 76, 77, 78, 125 N.E. 773; Hendryx v. State (1891), 130 Ind. 265, 268, 29 N.E. 1131; Burton v. State (1881), 75 Ind. 477.
The trial court recognized this duty, and appointed counsel for relator who were available for all purposes at and prior to his trial. He also appointed counsel to prepare and present relator's appeal and relator's petition affirmatively shows that the appeal is now pending in this court.
In appointing an attorney for a poor defendant, the trial court is not required to appoint an attorney selected by the defendant. Lloyd v. State, supra; Burton v. State, supra. In 2. many cases it may be desirable that a defendant should be consulted and his wishes ascertained and considered. However, the choice of an attorney to represent a pauper defendant is wholly for the sound discretion of the trial court. Lloyd v. State, supra; Hendryx v. State, supra; Burton v. State, supra. His discretion so exercised cannot be controlled; or reviewed except for abuse, and then only on appeal. Whether or not there has been an abuse of discretion in this matter may be considered in the pending appeal.
If relator's appointed attorney on appeal has been derelict in the performance of his duties as relator charges, it will appear in the record and briefs. From these the court not in 3, 4. this original mandamus action, but in considering the appeal, may ascertain and determine whether or not relator has been represented fairly and competently in the trial and appeal, or whether his attorneys have served only perfunctorily. Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848.
The petition for temporary and permanent writs of mandate is denied.
NOTE. — Reported in 81 N.E.2d 533.