Here, the defendant’s counsel filed a Post-Conviction Rule 2 petition, seeking permission to file a belated notice of appeal. The trial court denied permission, and counsel did not timely appeal this denial. Subsequently, defendant, through different counsel, filed a Post-Conviction Rule 1 petition, alleging that his Post-Conviction Rule 2 counsel was ineffective for failing to timely appeal the trial court’s denial of permission to file a belated notice of appeal.
We hold that the appropriate standard for judging the performance of Post-Conviction Rule 2 counsel is the standard set forth in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). We further hold that Post-Conviction Rule 2 counsel in this case did not violate Baum because she represented the defendant in a procedurally fair setting which resulted in a judgment of the court.
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. . . [T]here is no constitutional right to counsel in post-conviction, or collateral review, proceedings under either the federal or the state constitution. Graves v. State, 823 N.E.2d 1193, 1196 (Ind. 2005). Accordingly, this Court has “explicitly declined to apply the well-known standard for trial and appellate counsel.” Id. Thus, instead of using the “rigorous standard set forth in Strickland,” courts instead judge post-conviction counsel by a “lesser standard” based on due-course-of-law principles. Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). When evaluating post-conviction counsel, courts inquire whether “counsel in fact appeared and represented the petitioner in a procedurally fair setting which resulted in a judgment of the court.” Id. This standard for judging post-conviction counsel, commonly
referred to as the “Baum standard,” has been applied routinely in the context of counsel’s performance during Post-Conviction Rule 1 (P-C.R. 1) proceedings. See, e.g., Matheney v. State, 834 N.E.2d 658, 661–63 (Ind. 2005); Graves, 823 N.E.2d at 1197; Waters v. State, 574 N.E.2d 911, 912 (Ind. 1991).
The question remains: which standard—Strickland or Baum—is appropriate for judging the performance of counsel in conjunction with P-C.R. 2 petitions and proceedings? The answer, unfortunately, is not straightforward as P-C.R. 2 straddles two distinct legal spheres: direct review and collateral review. On one hand, P-C.R. 2 deals with direct appeals of convictions of sentences (albeit “belated” ones); on the other hand, P-C.R. 2 is grouped with the collateral review rules.
In determining which standard applies to the performance of P-C.R. 2 counsel,2 the Court of Appeals concluded that “[b]ecause Hill is seeking post-conviction relief premised upon Attorney Reed’s representation, and not his trial counsel’s representation, the Baum standard is applicable in this case, not the Strickland standard employed by the post-conviction court.” Hill II, slip op. at 5. We agree with the Court of Appeals that P-C.R. 2 counsel’s performance should be measured under the Baum, and not Strickland, standard. We write to explain the underlying bases for this conclusion.
First, a P-C.R. 2 petition and hearing are distinct from the filings and proceedings on direct appeal.3 It is true that P-C.R. 2 deals with belated notices of appeals, among other things. P-C.R. 2(1). In fact, once a defendant files a belated notice of appeal following a meritorious P-C.R. 2 petition, the defendant is in the same position as he would have been had he filed a timely notice of appeal. See Gallagher v. State, 274 Ind. 235, 239, 410 N.E.2d 1290, 1292 (1980); see also Gutermuth, 868 N.E.2d at 434 (stating that defendants who filed belated notices of appeal should be neither “rewarded” nor “penalized” for their delay). But the focus of P-C.R. 2 is whether a defendant should be granted permission to file a belated notice of appeal, and the trial court inquires into the defendant’s lack of fault and his diligence to make that determination. P-C.R. 2(1)(a)(2), (3). The P-C.R. 2 petition or hearing, on the other hand, should not include the underlying merits of the appeal itself. For example, the trial court conducting a P-C.R. 2 hearing would not address a substantive challenge to the defendant’s sentence—that issue, if the P-C.R. 2 petition is granted, is left for the appellate court to decide. Notably, this Court has described P-C.R. 2 as a “vehicle” or “avenue” to obtain a direct appeal. Howard v. State, 653 N.E.2d 1389, 1390 (Ind. 1995). This signifies that although P-C.R. 2 is a means or a way of getting a direct appeal, its proceedings are not equal to those of a direct appeal. See Greer v. State, 685 N.E.2d 700, 702 (Ind. 1997) (“P-C.R. 2(1) provides a method for seeking permission for belated consideration of appeals . . . .” (emphasis added)).
Second, this Court’s decision in Kling v. State, 837 N.E.2d 502 (Ind. 2005), demonstrates that P-C.R. 2 is more of a collateral review, versus direct review, rule. In Kling, this Court addressed “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.” 837 N.E.2d at 504 (emphases omitted). We first noted, as a background matter, that County Appellate Public Defenders represent indigent criminal defendants in direct appeals whereas the State Public Defender handles post-conviction relief. Id. In determining who was responsible for providing representation in P-C.R. 2 proceedings, this Court ultimately decided on the State Public Defender. Id. at 507. Specifically, this Court held that when the State Public Defender is representing a defendant in a P-C.R. 1 proceeding, the State Public Defender shall assess which issues may be raised in a P-C.R. 1 petition and which issues should be raised in a P-C.R. 2 petition and consult with the defendant accordingly. Id. “If a person so advised by the State Public Defender decides to seek relief immediately under P-C.R. 2 . . . , 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 denied, in the appeal of that decision.” Id. We further held that if a P-C.R. 2 petition is granted, the County Appellate Public Defender then takes over and handles the belated direct appeal. Id. at 508. Thus, P-C.R. 2 proceedings are treated as collateral review, at least in terms of who handles those cases.
Finally, the responsibilities required of P-C.R. 2 counsel and direct appellate counsel differ in one very important respect. In Mosley v. State, 908 N.E.2d 599, 608 (Ind. 2009), this Court held that in any direct criminal appeal, as a matter of right, counsel must submit an advocate brief. This is true even if counsel regards the defendant’s claims as frivolous. Id. In contrast, this Court has held that the State Public Defender does not have to file a P-C.R. 2 petition if he determines that the “petition is not meritorious or in the interest of justice.” Kling, 837 N.E.2d at 507. We believe that the greater responsibility imposed on direct appellate counsel correlates to the more rigorous Strickland standard governing direct appellate counsel’s performance. Likewise, we believe the lesser responsibility of P-C.R. 2 counsel parallels the less cumbersome Baum standard governing collateral review counsel.
For the foregoing reasons, we hold that the correct standard to judge P-C.R. 2 counsel is under Baum, and not under Strickland.
Shepard, C.J., and Dickson, J., concur.
Sullivan, J., concurs in result with separate opinion:
The Court, in footnote 4, correctly points out that “[i]f a P-C.R. 2 petition is granted, counsel’s performance in conjunction with the direct (albeit belated) appellate review of a defendant’s claims is judged under Strickland.” Slip Op. 8 n.4. This is so because the Equal Protection and Due Process Clauses guarantee an appellant in a criminal case the right to the effective assistance of counsel in a first appeal of right. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985); Mosley v. State, 908 N.E.2d 599, 604 (Ind. 2009). And it is well settled that we measure effective assistance of counsel on appeal by the two-pronged standard first enunciated in Strickland. Bieghler v. State, 690 N.E.2d 188, 192-93 & n.1 (Ind. 1997) (citing Lissa Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. Va. L. Rev. 1, 20 n.120 (1994)).
This limits the issue in this case to the very narrow question of whether a person convicted of a crime is entitled to Strickland counsel during proceedings litigating whether a belated appeal may be pursued or not. The Court says no – Baum counsel is enough – but I respectfully disagree.
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Believing that federal constitutional law requires that we apply Strickland and that, even if it doesn’t, we should apply Strickland to infuse Art. VII, § 6, with the full measure of protection our citizens deserve, I analyze counsel’s performance here through Strickland’s two-pronged standard. While I find counsel’s performance to have been deficient in failing to meet the filing deadline, I find no prejudice in that Hill has not met the diligence requirement of P-C.R. 2 and so his appeal would not have prevailed as a matter of law. For this reason, I concur in the result of the Court’s opinion.
Rucker, J., dissents with separate opinion.
I agree with the majority that the appropriate standard for judging the performance of Post-Conviction Rule 2 counsel is the standard set forth in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). And the majority makes a respectable though intricate argument that Hill’s counsel was not ineffective under Baum. But at the end of the day all Hill seeks is appellate review of his fifty-two year sentence, something he has thus far been denied. Our rules should not be applied so rigorously or our case law dissected so finely as to deny a defendant in Hill’s position the opportunity to make his best effort in challenging the sentence imposed.