Post conviction appointment of counsel

2001 MT 10
JACK SWEARINGEN, v.
STATE OF MONTANA,
Swearingen argues two issues: First, he maintains that the District Court had
a mandatory obligation to appoint counsel to represent him in his postconviction
proceeding and, failing to do so, the court committed reversible error. Second, Swearingen claims that the court erred as a matter of law in denying his petition for postconviction relief.
We determine that the first issue is dispositive and, therefore, do not address the second.
Accordingly, we hold, that under this statute, if the trial court determines that a hearing on a postconviction petition is required and if the defendant is unrepresented by counsel, then it is incumbent upon the court to inquire into the indigence status of the defendant and if he is unable to hire counsel and qualifies for appointed counsel under Title 46, Chapter 8, part 1, then the court must appoint counsel to represent the defendant on his postconviction petition.
Swearingen was forced to proceed without the benefit of counsel required by the law. As a result he suffered the very sort of harm that § 46-20-201(2), MCA (1997), was enacted to guard against. We reject the State's argument that Swearingen was required to demonstrate prejudice.
The trial court's denial of Swearingen's petition for postconviction relief is reversed and this cause is remanded to the District Court with instructions that the court appoint counsel for Swearingen and accord him a new evidentiary hearing on his postconviction petition.