Frederico A. Conn, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2025)

MEMORANDUM DECISION

[1] Frederico A. Conn appeals the post-conviction court's summary denial of his pro se petition for post-conviction relief. Included with his petition, Conn verified to the post-conviction court that he was incarcerated in the Indiana Department of Correction (“DOC”) and indigent, and he requested the appointment of counsel from the State Public Defender's office. Appellant's App. Vol. 2, p. 27. The next day, the post-conviction court denied Conn's request for the appointment of counsel on the ground that he was not presently incarcerated in the DOC on the case number underlying his petition for post-conviction relief. And, the day after that, the court summarily denied Conn's petition.

[2] On appeal, Conn asserts that the post-conviction court erred as a matter of law when it denied his request for the appointment of counsel from the Public Defender's office. Indiana Post-Conviction Rule 1(2) states that, if a petitioner is indigent, incarcerated in the DOC, and requests counsel, the post-conviction court “shall order a copy of the petition sent to the Public Defender's office.” (Emphasis added.) And Indiana's case law has long recognized that the post-conviction court's failure to order a copy of the petition sent to the Public Defender's office in accordance with Rule 1(2) is “not harmless error” and requires “reversal and remand.” Long v. State, 679 N.E.2d 981, 984-85 (Ind. Ct. App. 1997) (discussing Sanders v. State, 273 Ind. 30, 401 N.E.2d 694, 695-96 (1980)).

[3] The State does not dispute Conn's argument on appeal that Rule 1(2) applied here. Nor does the State defend the post-conviction court's rationale for denying Conn's request for the appointment of counsel. Instead, the State argues only that the post-conviction court's mistake is harmless error, which is an argument that is contrary to law. Id. The State also suggests that the Public Defender's office probably knew about this petition anyway because it represents Conn in other matters, which argument we do not find to be persuasive or supported by cogent reasoning.

[4] Accordingly, the post-conviction court erred when it did not order Conn's petition to be sent to the Public Defender's office for him to proceed on his petition with counsel. The trial court's summary denial of Conn's petition for post-conviction relief is reversed, and we remand for further proceedings consistent with this decision.

[5] Reversed and remanded.

Mathias, Judge.

Chief Judge Altice and Judge DeBoer concur. Altice, C.J., and DeBoer, J., concur.