Discretionary appointment of counsel

Counsel is statutorily provided on a discretionary basis in post-conviction hearings where the petitioner has made a prima facie showing that he or she is entitled to relief. Ark. Rule Crim. Pro. 37.3(b).  Before petitioners are entitled to counsel, they must show both that they can prove their innocence and that an attorney would be necessary to do so:

Postconviction matters are civil in nature, and there is no absolute right to appointment of counsel in civil matters. We have held, however, that if an appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we will appoint counsel.

Martin v. State, 13 S.W.3d 576, 578 (Ark. 2000) (citing Virgin v. Lockhart, 702 S.W.2d 9 [Ark. 1986] and Howard v. Lockhart, 777 S.W.2d 223 [Ark. 1989]).  This means that the petitioner is required to begin the legal process pro se in a post-conviction proceeding.  Cases are routinely rejected for relief based on petitioners’ inability to satisfactorily present prima facie evidence that they are entitled to relief under the rule. e.g., Vick v. State, 783 S.W.2d 365, 367 (Ark. 1990).  Although one federal court has applied the Arkansas rule to require counsel in all cases where a hearing is granted under the statute, Wainwright v. Norris, 836 F. Supp. 619, 622 (E.D. Ark. 1993), the Arkansas Supreme Court has stated clearly that a petitioner must prove the two factors in order to be appointed counsel, a decision that seems correct given the statute’s discretionary wording that a court “may” appoint counsel upon a finding of indigence. See Hardin v. State, 86 S.W.3d 384, 385 (Ark. 2002) (counsel not required at hearing; standard to review failure to appoint is abuse of discretion).  Most significantly, jurisprudence focusing on the provision of counsel under the post-conviction relief statute repeatedly emphasizes the proposition that Arkansas citizens are not entitled to counsel in civil proceedings. See e.g., Martin v. State, 13 S.W.3d 576, 578 (Ark. 2000).

If counsel appointed under this rule petitions to withdraw based on a showing of sufficient cause, and the court grants such a petition, the party is not automatically entitled to a new attorney under the rule.  Hammon v. State, 65 S.W.3d 853 (Ark. 2002).  In reaching this determination, the Arkansas Supreme Court relied on Ark. R. App. P. Crim. 16, which only permits counsel to withdraw from court-appointed representation in post-conviction proceedings at the discretion of the trial court.  While this rule requires the court to appoint new counsel in appeals if the counsel has withdrawn, the court in Hammon held that this portion of the rule applies only to direct appeals and not to post-conviction matters, as they are civil in nature. Id.  While this holding appears to severely limit the right to counsel in post-conviction proceedings (as after the court has determined a need for counsel, the appointed counsel may be permitted to withdraw and the trial court may then alter its determination concerning the need for counsel), in Hammon the court only permitted one of the three attorneys petitioning to withdraw, and appointed counsel to replace him. Id.  It is unclear to what extent the court would rely on earlier determinations that counsel was necessary in choosing whether or not to appoint new counsel after withdrawal of representation in a post-conviction proceeding.

Similar to other civil statutory provisions of counsel, a party may waive his or her right under this rule as long as this waiver is knowing and voluntary, and the petitioner fully understands the consequences of the waiver of this right.  In State v. Riggs, 12 S.W.3d 634 (Ark. 2000), the court also required two psychologists to testify that the petitioner was competent and understood the consequences of waiving her statutory counsel during a post-conviction hearing where the party had been sentenced to death.