Court erred in denying court-appointed counsel

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The Indiana Court of Appeals reversed a man's convictions because the trial court failed to adequately ascertain whether he was indigent for purposes of court-appointed counsel.

In Bradley G. Shively v. State of Indiana, No. 12A02-0903-CR-235, Bradley Shively requested a court-appointed attorney at his initial hearing on charges of domestic battery, criminal confinement, and battery. The trial court denied his request at the initial hearing after asking how much money he made, if he had a house or car, and how much money he had in his checking account.

Shively moved to continue his trial and again asked for a court-appointed attorney. A different judge also denied his request. Shively proceeded pro se and was convicted on the charges.

Before sentencing, the trial judge that held the first indigency hearing conducted a more in-depth examination of Shively's finances and then appointed him counsel for sentencing.

While there is no set specific financial guideline for the determination of indigency, the trial court should have done a more thorough inspection of Shively's finances at his first hearing, the appellate court ruled. Both hearings provided just a rough estimate of his finances, and the record shows at his second hearing, Shively's financial situation was much worse. There weren't discussions of his obligations to his children, any debt payments or other fixed obligations, wrote Judge Michael Barnes.

The judge noted it's telling that Shively was appointed counsel after trial but before sentencing and found indigent for the purposes of this appeal. There doesn't appear to be any changes to his financial status between the second pre-trial hearing and the indigency hearing that happened after trial.

"If Shively was indigent for purposes of sentencing and appeal, it is difficult to perceive why he was not indigent for purposes of trial; there does not appear to have been any marked changed in Shively's financial status, particularly between the second pre-trial indigency hearing and the post-trial hearing," he wrote. "Although we understand the reluctance of a trial court to appoint an attorney for one who may be 'gaming the system,' in this instance we do not believe sufficient care was given to a close examination of Shively's financial situation."

Judge Barnes wrote as the case stands now, Shively is still indigent and should be considered so for the purposes of further proceedings on remand unless there is evidence his financial situation has markedly improved.


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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.