Michael Bertram v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 26 2016, 9:38 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Michael Bertram Gregory F. Zoeller
Pendleton, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Bertram, October 26, 2016
Appellant-Defendant, Court of Appeals Case No.
32A05-1603-PC-602
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Stephenie LeMay-
Appellee-Plaintiff. Luken, Judge
Trial Court Cause No.
32D05-1512-PC-10
May, Judge.
[1] Michael Bertram appeals the post-conviction court’s denial of his petition for
post-conviction relief. He asserts the post-conviction court erred when it failed
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to transfer his petition to the State Public Defender. The State agrees. We
reverse and remand with instructions.
Facts and Procedural History
[2] On May 7, 2015, Bertram pled guilty to Class C felony burglary 1 and to a
habitual offender enhancement. 2 He received an eight-year sentence, to be
served consecutively to another sentence. On December 17, 2015, Bertram
filed a pro se petition for post-conviction relief. Included with his petition were a
request for assistance from the public defender and an affidavit of indigency.
The record contains no indication the petition was referred to the State Public
Defender. Nor did a public defender ever enter an appearance.
[3] On February 22, 2016, the State requested summary disposition. The post-
conviction court granted the State’s request and summarily denied Bertram’s
petition for post-conviction relief.
Discussion and Decision
[4] Bertram and the State agree this case should be reversed and remanded to the
post-conviction court with instructions to refer Bertram’s petition to the State
Public Defender’s office. We agree.
1
Ind. Code § 35-43-2-1 (2014).
2
Ind. Code § 35-50-2-8 (2014).
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[5] Ind. Post-Conviction Rule 1, § 2 states, in pertinent part, that “[i]f 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.” Our Indiana Supreme Court has
explained this rule’s two purposes:
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, 273 Ind. 30, 32, 401 N.E.2d 694, 695 (1980).
[6] Bertram requested representation by the Public Defender’s office and attached
an affidavit of indigency. The record does not indicate his petition was
forwarded to the State Public Defender’s office, and the post-conviction court’s
failure to do so is reversible error. See Cox v. State, 52 N.E.3d 17, 19 (Ind. Ct.
App. 2016) (lack of referral is reversible error). Thus, we reverse the summary
disposition and remand with instructions for the post-conviction court to refer
Bertram’s petition to the State Public Defender’s office.
[7] Reversed and remanded with instructions.
Kirsch, J., and Crone, J., concur.
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