                                                                            Feb 29 2016, 10:25 am




      APPELLANT, PRO SE                                          ATTORNEYS FOR APPELLEE
      William Cox                                                Gregory F. Zoeller
      Plainfield Correctional Facility                           Attorney General of Indiana
      Plainfield, Indiana                                        James B. Martin
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      William Cox,                                               February 29, 2016
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 29A02-1508-PC-1221
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court
      State of Indiana,                                          The Honorable Steven R. Nation,
      Appellee-Respondent.                                       Judge
                                                                 Trial Court Cause No.
                                                                 29D01-1502-PC-1884



      Pyle, Judge.


                                        Statement of the Case
[1]   Appellant/Petitioner, William Cox (“Cox”), appeals the post-conviction court’s

      denial of his petition for post-conviction relief. On appeal, he argues that the

      post-conviction court erred when it failed to transfer his petition to the State


      Court of Appeals of Indiana | Opinion 29A02-1508-PC-1221 | February 29, 2016                  Page 1 of 5
      Public Defender’s Office after he requested representation by the Public

      Defender and attached an affidavit of indigency to his petition. We agree that

      the post-conviction court’s failure to transfer the petition to the State Public

      Defender’s Office was reversible error, and we reverse and remand with

      instructions for the post-conviction court to transfer the petition.


[2]   We reverse and remand with instructions.


                                                            Issue
                 Whether the trial court erred by failing to transfer Coz’s petition
                 for post-conviction relief to the State Public Defender’s Office.

                                                            Facts
[3]   On February 6, 1987, Cox was convicted of being an habitual traffic violator,

      and the trial court ordered his license to be suspended for ten years.

      Subsequently, on April 23, 1999, Cox was convicted, pursuant to a guilty plea,

      of operating a vehicle as an habitual traffic offender. The trial court sentenced

      him to two-and-a-half years and ordered his driving privileges suspended for his

      lifetime.


[4]   Almost sixteen years later, on February 24, 2015, Cox filed a pro se

      handwritten petition for post-conviction relief.1 In his petition, he argued that

      he should not have been convicted for operating a vehicle as an habitual traffic




      1
          Cox was incarcerated when he filed his petition for post-conviction relief and is still incarcerated currently.


      Court of Appeals of Indiana | Opinion 29A02-1508-PC-1221 | February 29, 2016                             Page 2 of 5
      offender in 1999 because the suspension of his license from his 1987 habitual

      traffic offender designation had expired prior to his 1999 offense. The post-

      conviction court scheduled a pre-trial conference on the matter and noted that

      Cox had not requested representation by a public defender. In response, on

      March 25, 2015, Cox filed a formal post-conviction petition in which he stated

      that he wished the State Public Defender to represent him and to which he

      attached an affidavit of indigency. However, the post-conviction court did not

      order a copy of his petition for post-conviction relief to be sent to the State

      Public Defender’s Office.


[5]   On March 27, 2015, the State filed a motion for a summary denial of Cox’s

      petition for post-conviction relief. It argued that Cox had not stated a claim

      upon which relief could be granted because, after his 1987 conviction, Cox had

      been convicted of Class D felony operating a vehicle after being adjudged an

      habitual traffic offender on January 8, 1993, and his driving privileges had been

      suspended for life at that time. Therefore, Cox’s driving privileges had been

      suspended at the time he had been convicted in 1999. On May 27, 2015, the

      post-conviction court granted the State’s motion for summary denial and denied

      Cox’s petition for post-conviction relief. The court cited Cox’s 1993 conviction

      as the basis for its judgment.


[6]   On June 22 and July 24, 2015, respectively, Cox filed a motion to correct error

      and an amended motion to correct error. In his amended motion, Cox raised

      two new issues. The post-conviction court held a hearing on the amended

      motion on July 30, 2015 and denied it on July 31, 2015. Cox now appeals.

      Court of Appeals of Indiana | Opinion 29A02-1508-PC-1221 | February 29, 2016   Page 3 of 5
                                                    Decision
[7]   On appeal, Cox argues that the post-conviction court erred when it failed to

      send his petition for post-conviction relief to the State Public Defender’s Office

      after he stated that he wished to be represented by the Public Defender. Indiana

      Post-Conviction Rule 1, § 2 mandates that a copy of an indigent prisoner’s

      petition for post-conviction relief be forwarded to the State Public Defender’s

      Office for review. Barclay v. State, 679 N.E.2d 163, 165 (Ind. Ct. App. 1997).

      Specifically, it provides that:


              If an affidavit of indigence is attached to the petition [for post-
              conviction relief], the clerk shall call this to the attention of the
              court. If the court finds that the petitioner is indigent, it shall
              allow petitioner to proceed in forma pauperis. If the court finds
              the indigent petitioner is incarcerated in the Indiana Department
              of Correction, and has requested representation, it shall order a
              copy of the petition sent to the Public Defender’s office.


      P-C.R. 1, § 2. Our supreme court has noted two reasons behind this rule:

              First, it provides the indigent petitioner with counsel thereby
              facilitating the orderly and coherent prosecution of the claim
              through the trial and appeal courts. Secondly, it insures that the
              petition will be presented in the form required by the rule which
              in turn effectively implements the underlying policy which is to
              limit the number of post-conviction petitions so far as
              constitutionally permissible by requiring all known and felt
              grievances to be aired in the original or first petition.


      Sanders v. State, 401 N.E.2d 694, 695 (Ind. 1980). The Sanders Court noted that

      the “referral requirement of [Post Conviction Rule 1, § 2] has considerable

      Court of Appeals of Indiana | Opinion 29A02-1508-PC-1221 | February 29, 2016    Page 4 of 5
      importance to the inmate as well as to the courts.” Id. at 695-96. As such, we

      have noted that failure of a post-conviction court to refer a petition to the State

      Public Defender’s Office upon the proper proof of indigence warrants reversal

      and remand. Barclay, 679 N.E.2d at 165.


[8]   Here, Cox requested representation by the State Public Defender’s Office and

      properly attached an affidavit of indigency to his petition for post-conviction

      relief. Accordingly, we conclude that the post-conviction court’s failure to refer

      Cox’s petition to the State Public Defender’s Office was reversible error. See id.

      We reverse and remand with instructions for the post-conviction court to

      forward Cox’s petition for post-conviction relief to the State Public Defender’s

      Office.


[9]   Reversed and remanded with instructions.


      Baker, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Opinion 29A02-1508-PC-1221 | February 29, 2016   Page 5 of 5
