In Part 1, I outlined the general process to follow when appellate counsel receives a juvenile delinquency appeal where the child has entered an admission. In this post, I will address the issue of counsel to assist in these proceedings.
Even though the Court in J.W. affirms that children are entitled to the assistance of counsel for Trial Rule 60(B) proceedings, the Court does not address whether it is appellate counsel’s responsibility to represent the child in these proceedings. The State Public Defender’s office has the authority to represent juveniles committed to the D.O.C. in such proceedings, but, pursuant to Indiana Code section 33-40-1-2, only “if the time for appeal has expired.”
The Trial Rule 60(B) process outlined in J.W. must be undertaken before the direct appeal is concluded. Consequently, the time for appealing will not yet have expired, and it is likely the State Public Defender will not have the authority to represent children in Trial Rule 60(B) proceedings where they have entered admissions.
And in most cases, trial counsel cannot be reappointed to handle the Trial Rule 60(B) proceedings. Challenging the illegality of the admission usually includes allegations that trial counsel was ineffective, that the child’s admission was not knowing and voluntary, etc. To support these claims, the child will most likely need to call trial counsel to testify as a witness at an evidentiary hearing.
Appellate counsel could ask the juvenile court to appoint other local counsel to represent the child. In that case, appellate counsel will still need to monitor the progress of the case so that counsel can resume representation of the child on appeal in the event the child is not successful on his Trial Rule 60(B) motion.
In Part 3, I will add some general thoughts on investigating potential Trial Rule 60(B) claims, including whether counsel can “no-merit” such claims.