APPELLANT PRO SE : ATTORNEYS FOR APPELLEE:
STEVE D. ELLER, STEVE CARTER
Michigan City, Indiana Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
STEVE D. ELLER, )
vs. ) No. 14A01-0011-PC-392
STATE OF INDIANA, )
APPEAL FROM THE DAVIESS CIRCUIT COURT
The Honorable Robert L. Arthur, Judge
Cause No. 14C01-9901-CF-1
August 8, 2001
OPINION FOR PUBLICATION
Although Steve D. Eller requested the representation of the State
Public Defender when he filed his petition for post-conviction relief, the
trial court did not refer the petition and summarily denied it nine days
after it was filed. We reverse and remand with instructions to refer the
petition to the State Public Defender.
Facts and Procedural History
On January 19, 1999, a nine-count information was filed against Eller
in Daviess Circuit Court. Eller was found to be indigent, and a public
defender was appointed to represent him. On October 4, 1999, Eller pleaded
guilty to two counts of burglary as a Class A felony, one count of
possession of a firearm by a felon, a Class D felony, and auto theft, a
Class D felony. On December 23, he was sentenced to fifty years with ten
years suspended for the Class A felony counts and eighteen months for the
Class D felonies. All counts were ordered served concurrently.
On February 8, 2000, Eller filed an affidavit of indigency and
praecipe for the record of proceedings. The record was provided to him
three months later, and on September 19, Eller filed a petition for post-
conviction relief, alleging that his guilty pleas were not entered into
knowingly, voluntarily, or intelligently because the plea agreement
resulted in him being convicted of two offenses in violation of double
jeopardy principles. His petition requested that the State Public Defender
be appointed to represent him, but he did not attach an affidavit of
indigency. On September 26, the trial court ordered the State to file a
written response to the petition, and on the same day the prosecuting
attorney filed a one-sentence response requesting that the petition be
denied because it was “factually and legally without merit.” R. at 24.
Two days later, the trial court entered the following order: “The Court,
having considered the defendant’s Motion for Post Conviction Relief and the
State’s Objection thereto, now denies the defendant’s Motion for Post
Conviction Relief.” R. at 26.
Discussion and Decision
The Indiana Rules of Procedure for Post-Conviction Remedies provide
detailed guidelines related to the filing and litigation of petitions for
post-conviction relief. A post-conviction action is commenced by filing
three copies of a verified petition with the clerk of the court in which
the conviction was entered. Ind. Post-Conviction Rule 1(2). Rule 1(2)
The Clerk shall file the petition upon its receipt and deliver a copy
to the prosecuting attorney of that judicial circuit. . . . If an
affidavit of indigency is attached to the petition, 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.
Within thirty days (or any further reasonable time ordered by the court) of
the filing of the petition, the State must file its answer “stating the
reasons, if any, why the relief prayed for should not be granted.” P-C.R.
1(4)(a). “If the State Public Defender has filed an appearance, the State
Public Defender shall have sixty (60) days to respond to the State’s answer
to the petition filed pursuant to Rule PC 1(4)(a). If the pleadings
conclusively show that petitioner is entitled to no relief, the court may
deny the petition without further proceedings.” P-C.R. 1(4)(f).
Here, Eller’s petition was not referred to the State Public Defender
and was summarily denied nine days after it was filed. Therefore, because
the State Public Defender was never involved in the case, she was not given
the sixty days prescribed by Rule 1(4)(f) to respond to the State’s answer
before the summary denial.
“The right to counsel in a post-conviction proceeding is guaranteed
neither by the Sixth Amendment of the United States Constitution nor
article 1, § 13 of the Constitution of Indiana.” Baum v. State, 533 N.E.2d
1200, 1201 (Ind. 1989); see also Pennsylvania v. Finley, 481 U.S. 551, 555
(1987). Nevertheless, the right to counsel of indigent prisoners pursuing
post-conviction relief, although not constitutional in dimension, is
provided for under certain circumstances by the Indiana Code and the
Indiana Rules of Procedure for Post-Conviction Remedies. See Ind. Code §
33-1-7-2(a) (1998) (“The state public defender shall represent any person
confined in any penal facility of this state or committed to the department
of correction due to a criminal conviction or delinquency adjudication who
is financially unable to employ counsel, in any postconviction proceeding
testing the legality of his conviction, commitment, or confinement, if the
time for appeal has expired.”); P-C.R. 1(9)(a).
The important goals advanced by referring petitions to the State
Public Defender are highlighted by the Post-Conviction Rules and decisional
law. Rule 1(9)(c) provides that “[c]ounsel shall confer with the
petitioner and ascertain all grounds for relief under this rule, amending
the petition if necessary to include any grounds not included by petitioner
in the original petition.” In addition, as Justice DeBruler observed over
two decades ago,
The purpose of the rule requiring the trial court to refer self-
generated petitions to the Public Defender is twofold. 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. The referral requirement of the rule has considerable
importance to the inmate as well as to the courts.
Sanders v. State, 273 Ind. 30, 401 N.E.2d 694, 695-96 (1980).
In Sanders, the defendant/petitioner filed a pro se petition that
stated he had no funds with which to employ counsel and affixed an
affidavit of indigency. The trial court summarily denied the petition
without referring it to the State Public Defender. Our supreme court
reversed, relying on Ferrier v. State, 270 Ind. 279, 385 N.E.2d 422 (1979):
In [Ferrier] we noted that the petitioner made an express request for
the aid of the Public Defender and made proof of indigency. In the
present case there is clear proof of indigency, but no express request
for the appointment of the Public Defender. The absence of this
element does not distinguish this case from Ferrier. The language of
Ind. R.P.C. 1, § 2, is clear and requires referral of a copy of the
petition to the Public Defender if the petitioner is indigent. There
is no requirement in the rule that an express request for referral be
made. To interpret the rule to require such an express request in
every case would be again to frustrate the dual purposes underlying
the referral requirement.
Sanders, 273 Ind. at 32, 401 N.E.2d at 696.
Although Eller, unlike Sanders, did not include an affidavit of
indigency, he did explicitly request the referral of his petition to the
State Public Defender. Moreover, his indigent status was clear based on
his pretrial representation by a public defender, his filing of an
affidavit of indigency several months before the filing of his petition for
post-conviction relief, and his present incarceration at the Department of
Correction serving a forty-year sentence.
We do not countenance Eller’s failure to strictly follow the Post-
Conviction Rules. However, where it is clear that a petitioner is likely
indigent and has requested referral of his petition to the State Public
Defender, we do not believe the omission of an affidavit of indigency
strips him of the right to referral and review of his case by the State
For all of these reasons, the summary denial of post-conviction
relief is reversed and this case is remanded with instructions to forward
Eller’s petition to the State Public Defender’s Office.
Reversed and remanded.
BAILEY, J., and BAKER, J., concur.
 In addition, Rule 1(4)(b) allows a petitioner to file a request for a
change of judge within ten days of filing his or her petition for post-
conviction relief. Summary denial of a petition nine days after its
filing, as in this case, precludes a petitioner from exercising this
 In Neville v. State, 663 N.E.2d 169 (Ind. Ct. App. 1996), we found no
error in the trial court’s failure to forward a petition for post-
conviction relief to the State Public Defender when the petitioner did not
attach an affidavit of indigency and did not complete the standard “form”
questions about his ability to hire an attorney or his desire to be
represented by the State Public Defender. Eller’s circumstances are
clearly distinguishable, however, as he explicitly requested referral to
the State Public Defender and his indigency is clearly evinced from other
parts of the petition and the record.
 Because we are remanding for referral to the State Public Defender, we
need not address the merits of Eller’s claim that his petition was
improperly denied without a hearing. We would note, however, that a
hearing is not required when “the pleadings conclusively show that
petitioner is entitled to no relief.” P-C.R. 1(4)(f). Eller’s purely
legal claim of a double jeopardy violation falls into this category.
Nevertheless, the trial court’s one-sentence denial order falls short of
what is required by our post-conviction rules. Rule 1(6) requires trial
courts to “make specific findings of fact, and conclusions of law on all
issues presented, whether or not a hearing is held.” P-C.R. 1(6).