In Re Harvey

210 N.E.2d 859, 247 Ind. 23, 1965 Ind. LEXIS 295

• Court: Indiana Supreme Court
• Decided: October 20, 1965
• Docket: 0-769
• Status: Published

Opinion

Arterburn, J.

On the 27th day of September, 1965 this Court issued an order to the Public Defender to show cause why he should not represent the petitioner in a post-conviction remedy.

The Public Defender’s response shows that the petitioner was convicted of the sale of narcotic drugs following a trial by jury; that he had competent counsel, namely, Leo J. Lamberson, of the bar of St. Joseph Circuit Court; that pursuant to his duties as attorney for the petitioner and defendant in that case, Mr. Lamberson reviewed the entire record and filed a report with the trial court, stating he could find no meritorious grounds for any appeal. Trial counsel accordingly complied with his duty to either file a motion for a new trial or show that there are no grounds therefor upon which an appeal may be based. See Sparks v. State (1964), 245 Ind. 245, 196 N. E. 2d 748.

We have said:

“But if competent counsel finds no substantial error to assign upon appeal, and so advises the defendant and the trial court, the constitutional requirement is satisfied and the defendant may not demand that the trial court find and appoint other counsel who will advise an appeal.” State ex rel. White v. Hilgemann, Judge (1941), 218 Ind. 572, 34 N. E. 2d 129.

It is a violation of an attorney’s oath and duty if he attempts to file a frivolous and non-meritorious appeal or other court proceeding.

We have also examined the exhibits and copies of letters attached to the petition and find there is no merit upon which any appeal or post-conviction remedy can be based.

The petition is denied.

Jackson, C. J., Myers and Landis, JJ., concur. Achor, J., not participating.

Note. — Reported in 210 N. E. 2d 859.