Extending State Public Defender Duties to All Penal Facilities: Commentary on Kortney Lee Elzey v. State of Indiana

I. Introduction

The Indiana Supreme Court’s decision in Kortney Lee Elzey v. State of Indiana, Case No. 24S-CR-436 (Nov. 20, 2025), addresses a subtle but important tension between statutory rights and court-promulgated procedural rules in the context of post-conviction representation for indigent inmates.

At the center of the dispute is Indiana Code § 33-40-1-2(a), which provides that the State Public Defender (SPD) “shall represent” indigent persons who are either (1) “confined in a penal facility in Indiana” or (2) “committed to the department of correction” in post-conviction proceedings after the time for appeal has expired. The Court’s own Post-Conviction Rules, however, only require automatic forwarding of post-conviction petitions to the SPD for indigent petitioners “incarcerated in the Indiana Department of Correction” (DOC).

The case exposes a “gap” created when longstanding procedural rules failed to keep pace with legislative and policy developments—particularly sentencing reforms that shifted many lower-level felony offenders from DOC facilities to county jails. The opinion clarifies that the SPD’s statutory obligation extends to all qualifying indigent inmates in any “penal facility,” including county jails, while also concluding that the trial court did not commit reversible error by following the text of the Court’s existing post-conviction rule.

Chief Justice Rush, concurring in part and dissenting in part, agrees with the majority’s statutory interpretation but would find reversible error because the trial court’s order effectively and erroneously denied Elzey access to SPD representation.

II. Background of the Case

A. Parties and Underlying Convictions

The appellant, Kortney Lee Elzey, accumulated multiple convictions and probation violations related to home improvement fraud. At the time of the relevant events, he was serving his sentence in the Huntington County Jail rather than in a DOC facility—circumstances that are themselves a product of Indiana’s modern sentencing scheme, which channels many Level 6 felony offenders to county jails rather than state prisons.

B. Post-Conviction Proceedings in the Trial Court

While incarcerated in the county jail, Elzey:

Filed a pro se petition for post-conviction relief (PCR);
Attached an affidavit of indigency; and
Requested that the petition be forwarded to the State Public Defender (i.e., he sought counsel through the mechanism recognized in Post-Conviction Rule 1(2)).

The trial court:

Denied his request to forward the petition to the SPD;
Ultimately denied post-conviction relief; and
Addressed multiple case numbers, including an issue regarding credit-time calculations.

The Court of Appeals affirmed the trial court on the credit-time issue, and the Supreme Court summarily affirmed that portion of the decision under Appellate Rule 58(A)(2). The only issue of statewide significance on transfer concerned access to the SPD: Did the trial court err by not referring Elzey’s petition to the SPD?

C. The Legal Question

The case thus presents a narrow but fundamental question:

When an indigent post-conviction petitioner is serving a sentence in a county jail (a “penal facility” under Indiana law), must the trial court forward the petition to the State Public Defender, notwithstanding the fact that Post-Conviction Rule 1(2) explicitly mandates forwarding only for DOC inmates?

The State argued that, under the plain text of Post-Conviction Rule 1(2), the trial court had no obligation to forward Elzey’s petition because he was not incarcerated in the DOC, and thus the court committed no error. Elzey countered that because he was indigent and confined in a “penal facility,” the statute entitled him to SPD representation, and the trial court should have ensured his access to the SPD.

III. Summary of the Opinion

A. Majority Opinion (Justice Massa)

The majority’s holdings can be summarized as follows:

No constitutional right to counsel in post-conviction proceedings The Court reaffirms longstanding precedent that there is no federal or state constitutional right to counsel in post-conviction proceedings. Any right to representation in that context is purely statutory.
Statutory entitlement to SPD representation covers all penal facilities Interpreting Indiana Code § 33-40-1-2(a), the Court holds that:
- “Penal facility” is not limited to DOC prisons but includes county jails and other facilities for confinement and punishment.
- Thus, indigent post-conviction petitioners confined in county jails are statutorily eligible for SPD representation, just like DOC inmates, subject to the SPD’s existing discretion to decline meritless matters.
No direct conflict between the statute and Post-Conviction Rules The Court distinguishes between:
- Substantive law (the statute), which defines who is eligible for SPD representation; and
- Procedural rules (Post-Conviction Rule 1), which govern the mechanism by which access to the SPD is administered by trial courts.
On that basis, the Court finds no legal conflict—the statute sets eligibility; the rule governs forwarding procedure for a subset (DOC inmates).
Trial court committed no reversible error under existing rules Because the trial court followed Post-Conviction Rule 1(2) as written—which only required automatic forwarding for DOC inmates—the Court concludes it cannot find reversible error, even though the statute’s reach is broader than the rule’s forwarding requirement.
Recognition of a “gap” and directive for rule revision The Court candidly acknowledges that its own post-conviction rules have failed to keep pace with legislative changes and sentencing reforms, inadvertently creating a gap in procedural access to SPD services for county-jail inmates. It refers the matter to the Indiana Supreme Court Committee on Rules of Practice and Procedure with instructions to draft a rule:
“extending the forwarding requirement in all cases where petitioners are incarcerated in any penal facility, including county jails.”

B. Concurring in Part, Dissenting in Part (Chief Justice Rush)

Chief Justice Rush agrees with the majority’s construction of § 33-40-1-2(a)—that SPD duties extend to indigent inmates in county jails—but disagrees with the conclusion that there was no reversible error.

Her principal points are:

The unique structure of post-conviction representation (where trial courts do not simply “appoint” counsel but instead involve the SPD through forwarding) makes the trial court’s action critical.
Here, the trial court did more than merely fail to forward the petition; it affirmatively denied what it called Elzey’s “request for the appointment” of SPD counsel and instructed him to proceed pro se in a short timeframe.
This order was confusing and misleading to a lay, unrepresented litigant and effectively shut down the only realistic mechanism available to him to obtain SPD assistance.
Because § 33-40-1-2(a) entitled Elzey to seek SPD representation and the court’s order impaired that right, she would find reversible error.

IV. Detailed Analysis

A. Constitutional and Institutional Framework

1. Separation of Powers and Rulemaking Authority

The opinion begins by situating the dispute within Indiana’s constitutional structure:

Article 4, Section 1: Vests legislative authority in the General Assembly.
Article 7, Section 1: Vests the judicial power in the Indiana Supreme Court, which has authority to adopt rules governing the exercise of its jurisdiction.

Citing State ex rel. Bicanic v. Lake Circuit Court, 292 N.E.2d 596 (Ind. 1973), the Court reiterates that it has inherent power to adopt procedural rules—authority recognized by the General Assembly. This power is exercised chiefly through the Indiana Supreme Court Committee on Rules of Practice and Procedure (“Rules Committee”) under Trial Rule 80.

The opinion emphasizes a crucial distinction:

The General Assembly enacts substantive law—laws defining rights, duties, obligations, and entitlements.
The Supreme Court, through rules, prescribes procedural mechanisms—how litigation is conducted in courts.

This tension—between a statute granting a substantive right (access to SPD representation) and a procedural rule that did not fully implement that right—drives the entire case.

2. No Constitutional Right to Post-Conviction Counsel

The Court revisits Baum v. State, 533 N.E.2d 1200 (Ind. 1989), which held that neither the U.S. Constitution nor Article 1, Section 13 of the Indiana Constitution guarantees the right to counsel in post-conviction proceedings. Post-conviction litigation is not treated as a continuation of the original criminal prosecution for purposes of the right to a “public trial” and associated rights.

As a result:

There is no constitutional entitlement to appointed counsel in PCR cases.
Any right to representation must come from statute—here, from Indiana Code Chapter 33-40-1.

This sets up the significance of the Public Defender statute, which functions as a legislative response to systemic problems with unrepresented post-conviction petitioners.

B. Precedents and Statutory History

1. Early Recognition of Need for Post-Conviction Counsel

Historically, Indiana courts confronted serious difficulties posed by pro se post-conviction filings:

State ex rel. Lake v. Bain, 76 N.E.2d 679 (Ind. 1948) Chief Justice Emmert’s concurrence noted “confused and unintelligible” petitions by unrepresented inmates imposing a “great burden” on courts.
In response, the General Assembly enacted what is now codified as Indiana Code Chapter 33-40-1, establishing the Public Defender to represent indigent prisoners in post-conviction matters.

The original 1945 statute required the Public Defender to represent any person in a “penal institution” who lacked funds to hire counsel in post-conviction proceedings after appeal. Cases like Lake and State ex rel. Lee v. Wilson, 77 N.E.2d 354 (Ind. 1948), recognized that this framework was meant to cover “all persons in prison” or “pauper inmates” of state prisons.

2. 1979 Amendments: Broadening to “Any Penal Facility”

In 1979, the Legislature substantially broadened the statute:

The statute was amended to cover indigent persons “confined in any penal facility of this state or committed to the DOC” due to conviction or delinquency adjudication.
This broader language has remained substantively unchanged and now appears in Indiana Code § 33-40-1-2(a).

This creates a statutory entitlement for:

Any financially indigent person who is either (1) confined in any penal facility in Indiana, or (2) committed to the DOC, to seek SPD representation in a post-conviction proceeding testing the legality of conviction, commitment, or confinement, once the time for direct appeal has expired.

3. Post-Conviction Rules and Referral to the SPD

Separately, in 1969 the Court adopted the Rules for Post-Conviction Remedies, including Post-Conviction Rule 1. Two provisions are central here:

Post-Conviction Rule 1(2) (simplified):
- If a petition includes an affidavit of indigency, the clerk notifies the court.
- If the court finds the petitioner indigent, it allows in forma pauperis status.
- If the indigent petitioner is incarcerated in the DOC and has requested representation, the court shall order a copy of the petition sent to the SPD.
Post-Conviction Rule 1(9)(a):
- Upon receiving a forwarded petition and affidavit of indigency, the SPD may represent petitioners committed to the DOC if the case is meritorious and in the interests of justice.
- The SPD may refuse representation where the conviction has no present penal consequences or otherwise lacks merit.

Notice the asymmetry: the statute covers all “penal facilities,” but the rule’s forwarding requirement is keyed only to DOC incarceration.

4. Statutory Interpretation Precedents

The Court’s interpretive work draws on several canons and cases:

Plain-meaning rule: Rainbow Realty Grp., Inc. v. Carter, 131 N.E.3d 168 (Ind. 2019), instructs that undefined terms are given their “plain, or ordinary and usual, sense” using general-language dictionaries.
Anti-superfluity canon: In SAC Financial, Inc. v. Indiana Department of State Revenue, 894 N.E.2d 1116 (Ind. T.C. 2008), courts avoid reading statutes so that any term becomes meaningless or a nullity.
“Shall” as mandatory: In D.W. v. State, 263 N.E.3d 151 (Ind. 2025), the Court reiterated that “shall” is presumed mandatory unless clearly intended otherwise, citing United Rural Elec. Membership Corp. v. Indiana & Michigan Elec. Co., 549 N.E.2d 1019 (Ind. 1990).

These interpretive tools collectively sustain the majority’s conclusion that “penal facility” cannot be read as surplusage or limited only to DOC institutions.

5. Substantive vs. Procedural Rules

On the relationship between statutes and court rules, the Court relies on:

Washington-Southern Navigation Co. v. Baltimore & Philadelphia Steamboat Co., 263 U.S. 629 (1924) – rules regulate practice and procedure but cannot “abrogate or modify the substantive law.”
Square D Co. v. O’Neal, 72 N.E.2d 654 (Ind. 1947), and PNC Bank, N.A. v. Page, 186 N.E.3d 633 (Ind. Ct. App. 2022) – reiterating that courts, even through rulemaking, cannot change substantive law or alter jurisdiction.

These authorities underpin the majority’s holding that the post-conviction rules must yield to, or at least conform with, the substantive entitlements created by statute.

C. The Court’s Legal Reasoning

1. Reconciling the Statute and the Rules

The State argued there was no problem because:

The statute sets who the SPD represents (eligible classes of prisoners);
The rule sets when and how a trial court must forward petitions (DOC-only); and
Non-DOC inmates could simply write the SPD directly.

The Court accepts much of this structural framing but reaches two critical conclusions:

The statute’s coverage is broad and mandatory Through dictionary definitions and cross-reference to Indiana Code § 35-31.5-2-232, the Court holds that:
- “Penal facility” includes “a state prison, correctional facility, county jail, penitentiary, house of correction, or any other facility for confinement of persons under sentence, or awaiting trial or sentence, for offenses.”
- Therefore, county jails are indisputably “penal facilities.”
The word “or” in § 33-40-1-2(a)(1) separates “confined in a penal facility” from “committed to the department of correction,” meaning they are distinct, additive categories. As a result, reading out the “penal facility” language—by limiting SPD duty to DOC inmates—would render that portion superfluous, violating the anti-superfluity canon.
The statute creates a substantive entitlement; rules are procedural The Court characterizes § 33-40-1-2 as substantive law. The post-conviction rules are merely procedural devices designed to implement statutes, not to narrow them. Accordingly:
- The statute mandates that the SPD “shall represent” qualifying indigent inmates, subject to its explicit statutory discretion to decline non-meritorious matters (subsection (c)).
- Post-Conviction Rule 1(2)’s narrower forwarding language cannot cut back that substantive right; at most, it is underinclusive and in need of amendment.

2. The “Rules Gap” and Criminal Justice Reforms

The majority identifies a key causal factor behind the present controversy: major sentencing reforms implemented in the mid-2010s.

Citing Lane v. State, 232 N.E.3d 119 (Ind. 2024), the Court notes that:

Between 2000 and 2010, Indiana’s prison population and prison spending rose sharply.
Reforms in 2014 shifted many Level 6 felony offenders from DOC facilities to county jails.
The practical result is that many individuals now serve substantial sentences in local jails rather than prisons, yet the post-conviction rule’s automatic forwarding mechanism remained limited to DOC commitments.

This produced the “unintentional gap” the Court describes: county-jail inmates—though plainly within the class protected by § 33-40-1-2(a)—are excluded from the automatic referral mechanism, leaving them in an inferior position procedurally, despite having identical substantive rights.

3. No Reversible Error—Why?

The Court’s most controversial conclusion is that, despite the statutory entitlement, the trial court did not commit reversible error. Its reasoning is essentially:

The trial court “followed our post-conviction rule as written at the time.”
Post-Conviction Rule 1(2) did not require forwarding a petition unless the indigent petitioner was incarcerated in the DOC.
There was no statutory duty imposed on the trial court to forward the petition; the statute obligates the SPD to represent eligible individuals, but it does not prescribe a court-based mechanism for initiating that relationship.

In other words, although Elzey had a substantive statutory right to seek SPD representation, the trial court did not violate either the statute or the Court’s rules by failing to forward the petition. This leads the Court to characterize the problem as a systemic “rules gap” rather than a trial-court error warranting relief in this case.

4. Directive to the Rules Committee

Recognizing that its procedural framework is underinclusive and out of date, the Court invokes its institutional rulemaking processes:

It formally refers the matter to the Rules Committee.
It directs the Committee to draft an amendment extending the forwarding requirement to all indigent petitioners “incarcerated in any penal facility,” thus harmonizing procedure with the statute’s substantive scope.
It emphasizes that referral to the SPD is “a crucial step,” citing Sanders v. State, 401 N.E.2d 694 (Ind. 1980), which identified two core policies:
1. Ensuring indigent petitioners have counsel, leading to coherent, orderly litigation; and
2. Requiring petitioners to consolidate all grievances in a single, properly presented post-conviction petition, thereby limiting repetitive filings.

Thus, the Court uses this case to trigger a systemic fix—prospectively aligning procedure with substantive law—without granting individual relief.

5. The SPD’s Discretion and Limits on the Right

Importantly, the majority clarifies that the statute and rules:

Do not create an open-ended right to counsel in all post-conviction matters.
Preserve the SPD’s discretion:
- Under § 33-40-1-2(c), the SPD may decline to pursue claims that are legally unwarranted, unsupported by a good-faith argument for change in the law, or “for any other reason” are without merit.
- Under P-C.R. 1(9), the SPD may refuse representation if a proceeding lacks merit or is not in the interests of justice, or if there is no present penal consequence.
Do not require courts to appoint substitute counsel if the SPD declines; petitioners may proceed pro se or retain private counsel.

The Court’s core holding, then, is not that every eligible inmate must receive SPD representation in fact, but that the SPD must be available to consider representing every indigent petitioner confined in any penal facility or committed to the DOC, and that court rules should facilitate, not impede, that access.

D. Chief Justice Rush’s Partial Concurrence and Dissent

1. Agreement on Statutory Interpretation

Chief Justice Rush fully concurs with Sections I and II of the majority opinion:

She agrees that § 33-40-1-2(a) covers individuals in county jails.
She agrees that such petitioners are entitled to seek SPD representation.

2. Disagreement on Reversible Error

Her dissent in Section III centers on the trial court’s handling of Elzey’s specific request for representation. In her view:

Post-conviction representation is implemented atypically—trial courts do not “appoint” SPD counsel directly but serve as conduits by forwarding petitions.
Elzey followed the only known mechanism—requesting representation in his petition and filing an indigency affidavit.
The trial court did not merely omit to forward the petition; it entered an order:
- “Denying” what it called his “request for the appointment” of SPD counsel; and
- Stating that he could proceed pro se and in forma pauperis within 45 days, without ever informing him of the option to write the SPD directly.

According to Chief Justice Rush:

“Thus, the court incorrectly suggested to Elzey that it had the authority to appoint counsel but would not do so.”

For an unrepresented inmate, this communication effectively signaled that he was not eligible for SPD representation, undermining his statutory right. While the State suggests he could have written directly to the SPD, she stresses:

He “presumably did not know” about that possibility.
It is “unreasonable” to expect a lay inmate to contradict a court’s order by independently seeking SPD assistance.

On these facts, she would hold:

The trial court’s order was misleading and legally erroneous.
This amounted to reversible error, justifying relief for Elzey.

In a footnote, she underscores that the usual rule—no special leniency for pro se litigants—does not properly apply here, because the issue is not his performance as a pro se litigant but his effort to obtain counsel.

E. Impact and Future Implications

1. Immediate Legal Effects

Doctrinally, the opinion establishes several key points:

Clarified scope of the SPD’s duty: The SPD’s statutory duty to consider representation in post-conviction proceedings applies to:
- All indigent inmates confined in any “penal facility” in Indiana (including county jails, houses of correction, and other confinement facilities); and
- All indigent individuals committed to the DOC.
Procedural rules must be updated: Post-Conviction Rule 1(2) is now clearly under-inclusive relative to the statute and, by the Court’s own directive, must be amended to require forwarding in all “penal facility” cases.
Substantive–procedural boundary reaffirmed: The decision reinforces that court rules cannot narrow statutory rights or alter substantive law; they may only regulate the means by which those rights are exercised.

2. Consequences for Inmates and Defense Practice

Once the rule is amended as the Court contemplates:

Indigent county-jail inmates who file PCR petitions and request representation will have their petitions automatically forwarded to the SPD, just like DOC inmates.
Defense counsel (including private counsel and public defenders at the trial level) will have a clearer path to advise clients that SPD review is available irrespective of whether the client is housed in a jail or prison.
SPD workload will likely increase, because a broader pool of inmates will now have guaranteed procedural access to SPD review, though the SPD retains discretion to decline non-meritorious cases.

3. Systemic and Doctrinal Significance

The case also has broader implications:

Alignment of rules with legislative reforms The opinion is a candid acknowledgment that court rules can lag behind legislative and policy changes—in this case, sentencing reforms that shifted the incarcerated population from DOC to local jails. It sets a precedent for courts to proactively harmonize procedural frameworks with evolving substantive law.
Template for handling statute–rule mismatches By recognizing a statutory entitlement, declining to find a direct legal “conflict,” but ordering rule amendments, the Court offers a model for handling future mismatches between statutes and court rules, particularly where individual relief might otherwise be uncertain or controversial.
Future litigation over “reversible error” The split between the majority and Chief Justice Rush may shape future cases in which trial courts’ communications or orders are alleged to have interfered with statutory access to counsel. Courts and practitioners will need to distinguish:
- Mere omission to forward a petition (likely not reversible under current precedent, if rules complied with); from
- Affirmative, misleading, or confusing orders suggesting ineligibility or foreclosing statutory avenues of representation (which, under the dissent’s view, can constitute reversible error).

4. Practical Advice for Courts and Litigants

Until the rules are formally amended:

Trial courts would be well advised:
- Not to characterize requests for SPD involvement as “appointment” requests that the court is “denying,” especially for county-jail inmates.
- To inform indigent petitioners that they may write directly to the SPD.
Inmates and their counsel should:
- Understand that factual confinement in a county jail does not disqualify an inmate from SPD review under § 33-40-1-2(a); and
- Proactively send a written request and copy of the PCR petition and indigency materials to the SPD if the court does not forward the petition.

V. Complex Concepts Simplified

Penal Facility

A “penal facility” is any place established for the confinement and punishment of persons under criminal sentence or awaiting trial or sentence. Under Indiana law, this includes:

State prisons and correctional facilities;
County jails;
Penitentiaries and houses of correction; and
Other confinement facilities constructed for penal purposes.

It is broader than “DOC facility” and explicitly encompasses county jails.

Substantive Law vs. Procedural Rules

Substantive law defines people’s rights and responsibilities—what they are entitled to, what they must or must not do (e.g., § 33-40-1-2(a) gives indigent inmates in penal facilities the right to seek SPD representation).
Procedural rules govern how cases are conducted in court—deadlines, filing formats, mechanisms for appointing counsel, etc. (e.g., Post-Conviction Rule 1(2) tells clerks and judges when to forward a petition to the SPD).

Courts may change procedural rules but cannot use those rules to eliminate or shrink rights created by substantive law.

Post-Conviction Relief (PCR)

A legal process, typically initiated after the time for direct appeal has passed, in which a convicted person asks the court to examine the legality of their conviction, sentence, or confinement. It is not a continuation of the criminal trial, but a collateral attack—often based on new evidence, ineffective assistance of counsel, or constitutional violations.

State Public Defender (SPD)

A statewide office created by statute to represent indigent prisoners in post-conviction proceedings. The SPD:

Is required to consider post-conviction claims of eligible inmates;
Must decline claims that lack legal merit or a good-faith basis for extension or change in the law; and
May refuse representation in cases lacking present penal consequences.

Forwarding Requirement

Under Post-Conviction Rule 1(2), if an indigent DOC inmate requests representation in a PCR petition, the trial court must forward the petition to the SPD. This is not “appointment” of counsel, but a referral mechanism that gets the case in front of the SPD for screening. The Elzey decision anticipates this forwarding requirement will be expanded to cover all penal facilities.

In Forma Pauperis

Latin for “in the form of a pauper.” If a court finds a litigant indigent, it may allow the person to proceed without paying filing fees or other court costs. This status is distinct from the right to appointed counsel, though indigency is a common prerequisite for both.

Summary Affirmance under Appellate Rule 58(A)(2)

A mechanism by which the Indiana Supreme Court, upon granting transfer, may summarily affirm portions of the Court of Appeals’ opinion without full separate analysis—used here in relation to Elzey’s credit-time calculations.

VI. Conclusion

Kortney Lee Elzey v. State of Indiana is a significant decision at the intersection of statutory rights, court rulemaking, and post-conviction practice. The Court clarifies that Indiana Code § 33-40-1-2(a) requires the State Public Defender to consider representing all indigent post-conviction petitioners confined in any penal facility in Indiana, not just those in DOC facilities. This recognition reaches county jails and other local confinement facilities that have become central to Indiana’s sentencing landscape.

At the same time, the Court confronts a structural problem of its own making: Post-Conviction Rule 1(2), by limiting automatic forwarding to DOC inmates, failed to implement the statute’s full scope and created an inadvertent “gap” in access for county-jail inmates. While the majority stops short of granting relief to Elzey—concluding that the trial court complied with the rule as written—it initiates a systemic correction by instructing the Rules Committee to amend the rule to match the statute.

Chief Justice Rush’s partial dissent sharpens the debate about when and how procedural deficiencies in implementing statutory rights should yield individual remedies. Her view that the trial court’s order affirmatively and misleadingly denied SPD access underscores the stakes for unrepresented inmates navigating complex legal frameworks.

In the broader legal context, the decision:

Reaffirms the boundary between substantive rights and procedural rules;
Modernizes the interpretation of “penal facility” to reflect contemporary correctional realities; and
Signals that courts must continually reassess their procedural rules to ensure they do not unintentionally erode or undercut statutory protections, especially for indigent and incarcerated persons.

As Indiana’s Rules Committee takes up the Court’s directive, Elzey stands as a precedent for harmonizing statutory entitlements with procedural practice and for ensuring that post-conviction access to counsel keeps pace with changes in criminal justice policy and institutional design.