Opinion
No. 28,385.
Filed November 19, 1945.
1. CRIMINAL LAW — Trial — Counsel for Accused — Right of Defendant to Have Counsel. — A convicted defendant has a right to have competent counsel appointed by the court to represent him at every stage of the proceedings, including an appeal. p. 377.
2. CRIMINAL LAW — Appeal — Pauper Defendant. — Bills of exception and a transcript should be furnished a pauper defendant without cost, if his counsel finds they are necessary. p. 377.
3. CRIMINAL LAW — Trial — Public Defender — Pauper Defendant. — The state public defender shall represent a pauper defendant after his time for appeal has expired, in the course of an ordinary proceeding. p. 377.
4. CRIMINAL LAW — Motion for New Trial — Inherent Right of Court to Grant. — By extraordinary procedure, courts have an inherent right to grant a new trial, where the ends of justice require, even though a motion for the same has not been filed within the statutory period. p. 377.
5. CRIMINAL LAW — Trial — Motion for New Trial — Public Defender — Time for Appeal Expired. — Where the trial court permits a late motion for a new trial to be filed and ruled upon, the time for appeal was extended for the statutory period after the ruling, but as the time for appeal had expired under the statute, the defendant was eligible to avail himself of the services of the public defender, who can obtain a bill of exceptions without cost if they are deemed necessary, and therefore it is not necessary to mandate the trial judge to appoint an attorney or furnish a bill of exceptions, in order to give the defendant his constitutional right to counsel. p. 377.
6. CRIMINAL LAW — Mandamus — Time Extended for Appeal — Motion for New Trial. — Where a petition to mandate the trial judge to furnish a defendant with counsel is filed within 90 days after the ruling on a motion for a new trial, and there is a delay in ruling on the petition, the time for the defendant to perfect his appeal will be extended. p. 378.
Original action by the State of Indiana on the relation of Henry Walker against Nat H. Youngblood as Judge of the Vanderburgh Circuit Court, for a writ of mandate to compel the court to appoint competent counsel to represent relator.
Mandate Denied.
Henry Walker, pro se, and James C. Cooper, of Rushville, for relator.
Nat H. Youngblood, pro se, for respondent.
Relator has filed a petition with us asking that respondent be mandated to appoint competent counsel to represent relator on appeal from a judgment in a criminal case and to furnish transcript and necessary bill of exceptions for use upon such appeal, and for reasonable extension of time within which to perfect said appeal. It appears from relator's verified petition that he is a poor person and that on July 28, 1947, the trial court so found in an order permitting relator to file his motion for a new trial after the statutory time had expired.
It appears from relator's petition that he was convicted of forgery in the Vanderburgh Circuit Court on February 27, 1947, and that he was sentenced to the Indiana State Prison and was delivered there within two days after his conviction. He alleges that subsequent to the verdict he requested his trial counsel to file a motion for a new trial, but that trial counsel failed to do so; that he learned of such failure after the time for filing motion for a new trial under the statute had expired, whereupon he himself prepared a motion for a new trial.
The court permitted said motion for a new trial to be filed long after the statutory time for filing such motion had expired and designated the county pauper attorney to represent defendant. The motion for a new trial was overruled. Thereafter relator filed his verified petition for appointment of counsel to represent him upon appeal and for transcript and bill of exceptions to be used upon appeal. This petition was denied.
The purpose of this action is to secure the mandate of this court to compel the Vanderburgh Circuit Court to appoint competent counsel to represent relator on appeal of said case and to furnish transcript of the record and all necessary bills of exceptions necessary to perfect an appeal to this court.
A convicted defendant in a criminal case in Indiana has a right to counsel at every stage of the proceedings, including the proceedings by which he may seek a review for error by 1, 2. appeal and it is the duty of the court to appoint competent counsel for him if he is a poor person. State ex rel., White v. Hilgemann, Judge (1941), 218 Ind. 572, 578, 34 N.E.2d 129. For the same reasons, if appointed counsel finds bills of exceptions and transcript necessary, they should be furnished without cost to the pauper defendant.
It is important in the matter before us, however, to consider that the state has provided a state public defender "to represent any person in any penal institution in this state who is 3-5. without sufficient property or funds to employ his own counsel, in any matter in which such person may insist he is unlawfully or illegally imprisoned, after his time for appeal shall have expired." Acts of 1945, ch. 38, p. 81. The time for appeal which the legislature had in mind in this statute is the time allowed in the course of ordinary procedure. It is true that by extraordinary procedure courts have an inherent right to grant a new trial, where the ends of justice require, even though a motion for same has not been filed within the statutory period, 46 C.J. 283, 286; Cleveland etc., R. Co. v. Miller (1905), 165 Ind. 381, 392, 74 N.E. 509; Indianapolis Life Ins. Co. v. Lindquist (1944), 222 Ind. 359, 371, 53 N.E.2d 338. It was in the exercise of this inherent right that the trial court in the matter before us permitted the late motion for a new trial to be filed and considered and ruled upon same. This extended the time for appeal for the statutory period after the ruling upon the extraordinary motion for a new trial, but did not take defendant out of the state public defender act. The late motion for a new trial was filed on July 28, 1947. At that time his time for appeal had expired and he was eligible under the statute to avail himself of the services of the state public defender. The extraordinary procedure that followed did not effect this eligibility and he continued to have and still has the right to the services of the state public defender, who can stipulate facts in lieu of a bill of exceptions, or obtain bill of exceptions, if satisfactory stipulation is impossible, at the state's expense. This being true, we are not disposed to mandate the respondent to appoint some one else or to furnish bill of exceptions and transcript, and it is not necessary that we do so to assure to him his constitutional right to counsel.
The petition in this action was received by the Clerk of this court within 90 days after ruling upon his motion for a new trial. There has been delay in disposing of it which should 6. not be allowed to prejudice his right to appeal. Therefore, relator's time for perfecting his appeal is extended to and including March 1, 1948.
Mandate denied.
NOTE. — Reported in 75 N.E.2d 551.